PITABASH ALIAS PITAMBAR MAHAKUD Vs. STATE OF ORISSA

JUDGEMENT

(1.) This Criminal Appeal is directed against an order of the Sessions Judge, Keonjhar in S.T. No. 102 of 1992 convicting the appellants for the offence under Sections 148, 302/149 and 323/149, Indian Penal Code (in short the "I.P.C.") and sentencing all of them to undergo R.I. for life under Sections 302/149,1.P.C. Learned Against order of S.P. Acharya, Sessions Judge, Keonjhar, D/- 14-2-1995. Sessions Judge has not passed any separate sentence for conviction under Sections 148 and 323/149, I.P.C.

(2.) The brief facts as per the F.I.R. are that on 23-3-1992 at about 9 a.m. PW 1 namely, Sankhali Barik lodged an F.I..R. before the O.I.C., Joda Police Station disclosing therein that on the date of occurrence at about 8 a.m. while he was coming from his village Bamebari, on the way he saw his uncle's son Umakanta Barik lying dead in an open field belonging to one Pitabasa Mahakud and there were several cut injuries on the head and face of deceased Umakanta. He also found his uncle Biswanath laying dead in a pool of blood at a little distance from the place where deceased Umakanta Barik was lying having sustained injuries on different parts of his body including head. At that time the wife and daughters of his uncle were sitting and crying near the dead bodies. He came to know that on the date of occurrence at about 7.30 a.m. Dhaneswar Mahakud, Ganesh Mahakud, Dasaratha Mahakud and Kamala Mahakud of his village were digging pits in order to fix poles on the road by the side of the land of the deceased persons for construction of a house. While his uncle deceased Biswanath Barik, Kaluru Barik and brother Umakanta Barik (Biswanath's sons) objected to the said act of the accused persons the latter assaulted his uncle Biswanath and his son Umakanta by means of crow-bar and axes (Hudia), resulting instantaneous death of Umakanata Barik. Due to assault by the accused persons Biswanath Barik also succumbed. The accused persons also attempted to kill Kaluru Barik and had caused several Injuries on his person. On getting oral information the I.O., PW 10 registered a case and proceeded with investigation, which culminated in filing charge sheet against the accused persons.

(3.) The plea of the accused was one of complete denial. Accused Kamalakanta Mahakud, in his statement under Section 313, Criminal Procedure Code (in short, the "Cr.P.C.") stated that while he was engaged in digging pits to fix poles on his land, injured PW 7 being armed with deadly weapon attacked him for which accused Kamala in order to save his life whirled an axe, which he was holding, ultimately resulting in the injuries and death of the deceased persons and injuries on PW7. Accused Kamala has taken a plea of right of private defence of person and property. The other accused persons have totally denied the charge levelled against them and have stated In their statements recorded under Section 313, Cr.P.C. that they were not present at the spot at the time of occurrence.