BAIKUNTHANATH JENA ALIAS DHUNA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The subject matter of challenge in this appeal is the order of conviction and sentence under Sections 302/34, I.P.C. in Sessions Trial No. 5 1/10 of 1997 on 20.6.1998 of the Court of 2nd AddI. Sessions Judge, Cuttack.

(2.) The factual foundation of the prosecution case is furnished in the following paragraph. On 8.8.1996 in the late evening at about 8.00 p.m. Pitabas Mallik, the deceased (hereinafter referred to as such) suffered a homicidal death due to anti mortem injuries near the High School at a little distance from Akhandalamani temple of the village Itua under Tangi P.S. of Cuttack district. The prosecution came up with allegation that the appellants sharing common intention inflicted injuries by deadly cutting and stabbing weapons and iron rod and committed the murder of the deceased. Prosecution has alleged that when deceased was in front of the tea stall of Nabakishore Panda (P.W. 11), the accused persons arrived there and accused Dhruba dealt a push to the deceased, as a result the deceased fell in the adjoining ditch and all the accused persons jumped into the ditch and launched attack on him by gupti, knife and fist dealing blows indis-criminately. The deceased managed to crawl out of the ditch and came to the platform in front of the temple and while was seeking divine protection against the attack, kneeling down there, accused Keshab dealt a blow by an iron rod (M.O.II) to the back side of the head of the deceased and all the accused persons fled the spot. The deceased in injured state was carried to Tangi Hospital where he was received dead. Immediately thereafter F.I.R. was lodged at Tangi Police Station at 9.30 P.M. and after registration of case and investigation, the 1.0. submitted charge sheet against the appellants. On being committed to the Court of Sessions, the appellants were charged for the offence punishable under Sections 302/34, I.P.C. by the learned 2nd AddI. Sessions Judge, Cuttack and faced trial.

(3.) The plea of the accused persons is one of complete denial and false implication.