BHAGABAT PRASAD BOHIDAR Vs. STATE OF ORISSA

JUDGEMENT

(1.) The four appellants stood charged under Section 302 read with Section 34 of the Indian Penal Code (for short, the Code) for having committed the murder of Trinath Lenka, the father-in-law of Rabinandan Bohidar (P.W. 1), by means of lathis and iron rods in furtherance of their common intention on June 26, 1979 at village Jamupalli in the district of Phulbani. They also stood charged under Section 326 read with Section 34 of the Code for having committed grievous hurt to Rabinandan (P.W. 1) in furtherance of their common intention by assaulting him with lathis and iron rods. The case of the prosecution was that owing to a land dispute between the deceased and P.W. 1 on the one hand and the appellants on the other, trouble arose for which there had been a murderous assault on the person of the deceased and grievous hurt had been caused to P.W. 1. To bring home the charges against the appellants, the prosecution had examined ten witnesses of whom P.W. 1, one of the victims of assault and P.Ws. 2 to 4 had figured as witnesses to the occurrence. The deceased had first been treated by P.W. 6, the doctor, at Manamunda and had succumbed to the injuries and the doctor (P.W. 5) had conducted the autopsy. P.W. 1 had been examined by P.W. 6 who had noticed injuries on his person. P.W. 10 had investigated into the case. On a consideration of the evidence, the learned Sessions Judge found the appellant Nos. 1 and 4, namely, Bhagabat Prasad Bohidar and Bhobani alias Bhabani Sankar Bohidar, guilty of the charge of murder in furtherance of their common intention and each of them was convicted under Sections 302 read with 34 of the Code and sentenced there under to undergo imprisonment for life. The other two appellants, namely, Sivasankar Bohidar and Umasankar Bohidar, were acquitted of the charge of murder. As regards the charge under Section 326 read with Section 34 of the Code for the assault on the person of P.W. 1, the learned Sessions Judge found that there was no case against the appellant Nos. 1 and 4 and that the other two appellants could be convicted for causing grievous hurt in furtherance of their common intention punishable under Section 325 read with Section 34 of the Code. Each of them was accordingly convicted, but instead of being sentenced, was released on probation of good conduct.

(2.) It is not disputed that the deceased died a homicidal death which was clear from the evidence of the two doctors (P.Ws. 5 and 6). It is also not disputed that P.W. 1 had sustained injuries on his person. There was the clear and acceptable evidence of P. Ws. 1 to 4 that the injuries had been sustained by the deceased and P.W. 1 during the occurrence.

(3.) Coming first to the conviction of the appellant Nos. 2 and 3 under Section 325 of the Code for causing grievous hurt to the deceased and P.W. 1, Mr. Bohidar bas submitted that there was paucity of evidence to convict these appellants under Section 325 of the Code for causing grievous hurt to the deceased and P.W. 1. But as has been submitted by Mr. Sahu for the State, there was no paucity of evidence in this regard with regard to the assault on P.W. 1. We, however, notice one disquieting feature in the finding recorded by the trial Court that these two persons could be convicted for causing grievous hurt. The doctor (P.W. 6), who had examined P.W. 1 had, no doubt, stated that two of the injuries, viz., fracture of right redius from the middle and fracture of right 6th and 7th ribs anteriorly 2 from the sternum were grievous in nature, but his evidence would show that he was not quite sure about the nature of the injuries for which he had advised an X-ray examination of these two injuries for confirmation. It would be noticed from the evidence of the Investigating Officer (P.W. 10) that he bad taken steps in this regard and had obtained a report. That report had not been produced and proved. In the absence of that report, it could notaffirmatively be said that the injuries were grievous in nature and the learned Standing Counsel has fairly submitted before us that in this state of the evidence, the appellant Nos. 2 and 3 could be convicted for causing simple hurt punishable under Section 323 of the Code.