MARKANDA NAIK Vs. STATE

JUDGEMENT

(1.) These two appeals are interlinked in the sense that they relate to the same alleged occurrence on 11-5-1984. Since the accused Bipra Naik, appellant in Criminal Appeal No. 144 of 1988, was shown as absconder the trial was split up so far as he is concerned and other eleven appellants in Criminal Appeal No. 119 of 1986 were tried together. Cognizance was taken for commission of offence punishable under S. 302 of the Penal Code, 1860 (in short, 'IPC') against accused Markanda Naik, Kirtan Naik Kamaraju Naik, Uma Chandra Naik, Prakash Naik, Gada Naik and Banchha Naik for committing murder of one Banka Naik (hereinafter referred to as the 'deceased'). Cognizance under Ss. 148/302/149, IPC and S. 324/149, IPC was taken against all the accused persons. Cognizance of offence under S. 323/149, IPC was taken against accused Lokanath Naik, Mochia Naik, Landa Naik, Gada Naik and Udaya Naik and cognizance of offence punishable under S. 324, IPC was taken against Banchha Naik for causing grievous hurt on the person of Kabiraj Naik. So far as Bipra is concerned, he stood charged for the offences punishable under Ss. 148, 302/149 and 323, IPC.

(2.) Filtering out the unnecessary details, the prosecution case as unfolded during trial of the two cases is as follows : On 8-5-1984 accused Markanda Naik celebrated the marriage ceremony of his daughter Dhani Naikani and invited the co-villagers to the marriage feast. Since his relationship with the members of Kabiraj Naik (P.W. 1)'s family was not cordial, his family members including the deceased did not attend the marriage feast. This was taken to be an insult by accused Markanda and he bore grudge against the family of the informant. On 11-5-1984 in the morning hours the deceased along with one Bhalu Naik (D.W. 1) and Babu Naik (P.W. 9) had gone to witness as open sky opera. They returned to village at about 4 p.m. When they reached near the abandoned house of one late Rakhi Naikani, suddenly the accused persons who were lying in wait and had concealed inside the house of Rakhi Naikani came out being armed with various weapons, Markanda was holding a Khanati, Prakash was holding a Chelo, Uma Naik was holding an axe, Kirtan was holding a Khanati and rest of the accused persons were holding lathi each. They surrounded the deceased and accused Kirtan Narkanda, Uma, Prakash and Banchha dealt blows on the person of the deceased by means of their respective weapons. On seeing the assault, Bhalu Naik and Basu Naik, the two companions of the deceased ran away from that place to save themselves. On seeking the assault on the deceased, Kabiraj (P.W. 1), the informant and his brother Daka Naik (P.W. 5) rushed to the spot. The occurrence was also witnessed 1 Bhobani Naik (P.W. 6), Mantri Naik (P.W. 7) and Debaraj Naik (P.W. 8) who were sitting in nearby houses. When the informant (P.W. 1) and his brother (P.W. 5) ran towards the spot and wanted to save their father they were also assaulted by accused Loka Naik, Mochia Naik, Bipra Naik, Kamaraju Naik, Gada Naik, Udaya Naik and Landa Naik, who dealt lathi blows. Accused Banchha Naik also dealt a blow by means of a sword on the person of P.W. 5. The deceased and his sons (P.Ws. 1 and 5) were lying injured at the spot when accused Gada and Kamaraju again gave some blows by lathis on the person of the deceased. By that time the other witnesses, namely, P.Ws. 6, 7 and 8 had arrived at the spot, P.W. 9 also came back. Seeing many persons assembled at the spot, the accused persons ran away with their respective weapons of offence. In the meantime the deceased had already breathed his last on account of the injuries sustained. His dead body and the injured persons were carried in a bullock cart to Pattapur Police Station where the information was lodged. Investigation was undertaken by P.Ws. 3 and 10, on completion whereof charge sheet was submitted. The accused persons faced trial. As indicated above, the trial of Bipra Naik was split up as he was shown as an absconder.

(3.) The defence plea of the accused persons except accused Benchha Naik and Prakash Naik, was a complete denial to the allegations of assault and murder, as levelled against them by the prosecution. Accused Bipra Naik took a plea of alibi and stated that he was serving in the district of Kaonjhar and was absent from village on the relevant date. The defence version was that the family members of the deceased were not invited to the marriage ceremony and the marriage feast which was held in the house of Markanda, for which the deceased and his two sons were annoyed. On the date of occurrence between 1 to 2 p.m. the deceased and the injured being armed with weapons came to the house of accused Markanda to confront the matter and to protest as to why they were not invited to the marriage feast and the ceremony. At that time accused Prakash and Banchha Naik were sitting on the varandah of their respective houses. The deceased and his sons picked up a quarrel and the deceased dealt a khanda kati blow to accused Prakash and his sons also dealt blows by lathis. On seeing this, accused Banchha came running to the spot and tried to intervene for which he was also assaulted and there was a scuffle in between the two groups; in one hand were the deceased and his two sons, and on the other accused Prakash and Banchha. In the scuffle, both the accused and the deceased and his two sons sustained injures, but the injuries were not intentionally inflicted by the abovenamed two accused.