PITAMBAR Vs. STATE OF ORISSA

JUDGEMENT

(1.) These four appeals are directed against the conviction and sentence passed by the learned Sessions Judge, Dhenkanal, in Sessions Trial No.16-A of 1979 and all the appeals being against the common judgment they have been heard together and are being disposed of by this judgment.

(2.) There are eight accused-appellants in all. Six of them have preferred Criminal Appeal No.127 of 1981. Two other accused persons have preferred Jail Criminal Appeals Nos.162 and 163 of 1981. Jail Criminal Appeal No.164 of 1981 is at the instance of accused Upasi Behera who is also appellant No.5 in Criminal Appeal No.127 of 1981. The accused-appellants have been convicted under different sections of the Penal Code and sentenced to different terms of imprisonment thereunder in the following manner :- <FRM>JUDGEMENT_424_CRLJ_1985Html1.htm</FRM> Another accused, namely, Raibari alias Abala Behera who has not preferred any appeal was convicted but was sentenced to rigorous imprisonment for the period already undergone.

(3.) According to the prosecution case, on 18-6-1979, at about 6.30 a.m., deceased Jogeswar Pradhan along with his brother Brundaban Pradhan (P.W.10), Pramod Kumar Pradhan (P.W.1), Baishnab Pradhan (P.W.2), Kumud Chandra Pradhan (P.W.6), Ratnakar Naik (P.W.5), Trilochan Pradhan, Adwait Pradhan, Bhanu Behera and Palau Pradhan - not examined in the case - went to Barahakani Chak land of village Dandasingha and reached the said place at 7 a.m. They had taken with them five ploughs with bullocks to cultivate the land in question. The land of Budhia Behera (father of accused Haguru and Sankar) adjoins this land on the northern side. Deceased Jogeswar had taken with him the map of the village, the Record-of-Rights and certain instruments to get the land measured and demarcated. When the deceased arrived at the spot, he found accused Haguru sowing crop on his land and his minor sons Kama and Bipin and his brother, accused Sankar were ploughing the land with bullocks. Deceased Jogeswar then questioned as to why Haguru was cultivating the land and demanded that he should leave the place immediately. Haguru then asked his sons and brother to take away the ploughs to their own land at the northern end when accused Upasi and Abala reached the spot and asked Haguru to continue to cultivate the land which he was cultivating earlier. The deceased advised Haguru to call Bhadraloks and get the land measured. Haguru and his brother Sankar then went to call Bhadraloks. Shortly thereafter the other accused persons, namely, Dambaru, Manu, Rabindra, Digambar and Pitamber came to the spot. When these persons came to the spot excepting accused Dambaru who had a Gupti in his hand, others had no weapon. Sankar came to the spot with his father a short while after. Haguru reached the spot at last. Sankar told the deceased that he had called those persons as Bhadraloks to consider the claim. The deceased then told him that he would not accept those persons as Bhadraloks. Accused Pitambar became furious when they were rejected to act as Bhadraloks by the deceased. He directed Dambaru to catch hold of the deceased. By that time Pitambar was armed with a sword and he also took out a knife from his waist. Pitambar threw a stone which hit the chest of Brundaban and he fell down. Accused Dambaru assaulted Brundaban who was lying on the ground with a Gupti on the right side of his face and head. Sankar assaulted Brundaban with a lathi. Manu brought a Tabala, Sankar brought a lathi, Rabi brought a lathi, Haguru brought a tangia, Digambar brought a tangia and Upasi brought a small axe from a nearby bush. Accused Upasi then dealt a blow with the tangia on the right leg of Brundaban. Accused Abala (who has not appealed) dealt a kick on the chest of Brundaban. Pitambar directed the other accused persons to chase and catch hold of the deceased who was trying to retreat. All the accused persons then surrounded the deceased. The deceased was also whirling a lathi which he had in his hand to save himself from the clutches of the accused persons. Pitambar then threw a big stone which hit the chest of the deceased as a result of which he fell down. Manu dealt a blow with a tangia near the left arm-pit and other accused persons assaulted him mercilessly on different parts of the body with the weapons which they were holding and accused Abala was throwing stones at the deceased. Seeing the situation, informant Pramod Kumar raised alarm. Accused Dambaru then dealt a lathi blow on the left shoulder of the informant. Dambaru directed his brother Manu to bring the axe to kill him, but the informant ran away. Accused Rabi also tried to catch-hold of the informant but he slipped away. The accused persons then decided to chop off the head of the deceased and carry it. Accused Haguru then cut off the head of the deceased with the tangia held by him and Upasi held the cut head and all the remaining accused persons followed Upasi. The injured Brundaban was removed to the hospital first at Tainsi and then at Angul. Haguru and Sankar brought the cut head to the court of the Subordinate Judge, Angul and kept it near the court where they were arrested by the police. The informant (P.W.1) was by that time present in Purunakota Police Station when Baishnab (P.W.2) informed him that the accused persons had taken away the head of his father. After getting the information from P.W.1, investigation started and during the investigation, the headless body of the deceased and the cut head were sent to the hospital for post mortem examination. After completion of investigation, police submitted charge-sheet against the accused persons on different sections,