SAMAL SAIN Vs. STATE OF ORISSA

JUDGEMENT

(1.) The appellant along with two others faced trial in S.T. No. 49/5 of 1991 for committing murder of Lembo Dei (Samard) by use of knife and wooden plank and by throttling her in her house at Bainsipur and for having caused the murder of Sada Samard at the Railway gate near Khurunti by shooting an arrow in the course of the same transaction of events.

(2.) The learned Addl. Sessions Judge, Jajpur arrived at a conclusion that the prosecution had not been able to prove that the three accused persons did cause murder of Lembo Dei and acquitted them of the said charge. The Court below also acquitted accused Mahendra Samard and Bindiram Biruan from the mischief of Section 302, IPC and set them at liberty by virtue of Section 235(1), Cr.P.C. But then, the learned Addl. Sessions Judge arrived at a conclusion that the prosecution had amply proved the commission of offence under Section 302, IPC by accused Samal Jain, the present appellant for causing murder of Sada Samard by shooting an arrow and found him guilty under Section 302 IPC. The Sessions Court convicted the appellant thereunder and sentenced him to undergo rigorous imprisonment for life and also to pay a fine of Rs. 5,000/-, in default, to undergo further R.I. for a period of four months. The said order of conviction and sentence is impugned in this appeal.

(3.) The scenario of events culminating in the murder of Sada Samard and his wife Lembo Dei gives a sad picture. The accused and the deceased were tribals and residents of Bainsipur village. For an unforeseen cause, a number of death took place in village Bainsipur during the month of March, 1990 in close proximity. Dama Hembram, the uncle of Bindiram Biruan, one of the accused persons (since acquitted) died on 22.3.1990. His cousin brother Arjun Badra died on 3.3.1990 and last but not the least, his maternal uncle Pargan Hansda died on 24.3.1990. Many other tribal people of the village also suffered from prolonged fever and in spite of being treated, did not recover and died. While matter stood thus, Sada, the deceased boasted before the accused persons and some others that he was capable of applying witchcraft to kill anyone he liked unless he was given handia and mutton curry. He also boasted that he was the only man who could cure the fever by applying witchcraft. It was alleged that the accused persons on hearing the boastings of Sada, came to a conclusion that the random deaths taking place in village could not be stopped unless Sada and his wife were murdered. Accordingly they went to the house of Sada being armed with wooden plank and other weapons. They found his wife outside the house, caught hold of her throat and throttled her. Sada who was inside the house, seeing this, ran away with an iron arrow in his hand. The accused persons were alleged to have chased him and when he approached the main road, accused Samal Sain shot an arrow at Sada which pierced his chest, below the right arm pit, and he fell down on the road. Thereafter, Bindram was alleged to have given several blows on the head of Sada by a wooden plank and Sada succumbed to his injuries. Thereafter, all the three accused persons returned to his (sada) village, drove Lembo Dei out of her home and pressed her throat, as a result of which she died. It is was alleged that thereafter they went to Jajpur Road police station and surrendered.