HARIHAR PAIK Vs. STATE

JUDGEMENT

(1.) The appellant Harihar, his brothers Makhnu and Srikar, his sons Safei (appellant) and Souki and Kartika alias Bidyadhar, the son-in-law of Makhnu, stood trial in the court of the learned Sessions Judge, Sambalpur, being charged under S.148 of the I.P.C. (for short, the 'Code') for being members of an unlawful assembly and for having committed rioting being armed with deadly weapons, such as, Tabal, axes, spear and lathis, under S.302 read with S.149 of the Code for committing the murder of Gurucharan Singh (hereinafter referred to as the 'deceased') in furtherance of their common object by assaulting him to death and under S.323 read with S.149 of the Code for voluntarily causing hurt to Bhola Singh (P.W.13) in furtherance of their common object on Aug. 7, 1979, in village Bichhuan in the district of Sambalpur. The acts were committed by the appellants, as alleged, because of a long standing dispute over the possession of a piece of land between the accused persons on the one hand and P.W.13 and his father on the other, for which criminal litigation was pending at the time of the occurrence and this land had been given on 'chhidol' basis for the year by P.W.13 to P.W.3 who had ploughed the land with his brother-in-law Srihari (P.W.6) and his field servant Harihar Behera (P.W.8) earlier to the day of occurrence. The first information report was lodged by Thakura Singh (not examined), who was not a witness to the occurrence and on the basis of this report (Ext.3), investigation was taken up and a charge-sheet was placed by the investigating agency. The appellants denied the charges. According to them, the witnesses were interested for the prosecution and were on inimical terms with them for which they had falsely involved them.

(2.) Of the fifteen witnesses examined by the prosecution, P.W.1 was the doctor who had conducted the autopsy and P.Ws.3, 6 to 8, 13 and 14 had been examined as the witnesses to the occurrence. P.W.15 had investigated into the case after receipt of the first information report by the Assistant Sub-Inspector of Police (P.W.4). P.Ws.5 and 11 had testified about the extra judicial confessions said to have been made by the two appellants. In the course of investigation, P.W.15 had seized an axe (M.O.I) from the house of the accused Srikar and an axe (M.O.II) and a lathi (M.O.III) from the house of the accused Makhnu. The appellants and the co-accused persons had not examined any witness on their behalf.

(3.) On a consideration of the evidence, the learned Sessions Judge found that the charges that the accused persons were members of an unlawful assembly being armed with deadly weapons for the commission of the murder of the deceased and for causing hurt to P.W.13 in furtherance of their common object framed against all the accused persons had not been brought home to them, but that the two appellants Harihar and Safei were liable to be convicted for committing the murder of the deceased. The two appellants were convicted under S.302 of the Code and sentenced thereunder to undergo imprisonment for life.