GUNDUCHI PATNAIK Vs. STATE OF ORISSA

JUDGEMENT

(1.) The two appellants, their father Chintamani, Chintamani's sister's son Sukanta and a co-villager Chhatia alias Purna Chandra stood charged under Ss.148 and 302 read with S.149 of the I.P.C. (for short, the 'Code') for having formed an unlawful assembly armed with deadly weapons and for commission of the murder of Dayanidhi Patnaik (hereinafter described as the 'deceased') in village Kalyanpur in the district of Puri on Aug. 12, 1979. They also stood separately charged under S.302 read with S.34 of the Code for having committed the murder of the deceased in furtherance of their common intention. It was alleged that there had been a dispute between Chintamani on the one hand and the deceased on the other relating to the possession of a house which the deceased had locked. On the day of occurrence, on seeing that it had been unlocked, the deceased challenged as to who had unlocked the house. Upon this, the co-accused Sukanta asked the appellant Gunduchi to bring a Bhusa (a piercing instrument). The other co-accused persons including the appellant Mana came armed with lathis and the appellant Gunduchi came with a Bhusa. The appellant Gunduchi by means of the Bhusa and the co-accused persons by means of lathis assaulted the deceased who was lifted by some persons to the house of P.W. 12 and information was sent to the police station at Sarankul. On receipt of the first information report (Ext. 1/3), a case was registered against the five accused persons. The deceased succumbed to the injuries on Aug. 24, 1979. Witnesses were examined in the course of investigation and dying declarations of the deceased were recorded by the doctor (P.W.11) and the Investigating Officer (P.W.15). On the completion of investigation, a charge-sheet was placed and on their commitment, the two appellants with the other co-accused persons were prosecuted.

(2.) To bring home the charges, the prosecution examined fifteen witnesses of whom P.Ws. 2, 6 and 7 figured as witnesses to the occurrence. The prosecution relied on the dying declarations, Ext. 9 recorded by P.W.15 and Ext. 3/1 recorded by P.W.11, the doctor. Besides, reliance was placed on a verbal dying declaration said to have been made by the deceased before P.W.12. The learned Sessions Judge did not place reliance on the recorded and verbal dying declarations, but accepted the evidence of P.Ws. 2, 6 and 7 coupled with the medical evidence and while finding that the case had not been established against three of the five accused persons, convicted the appellants under S.302 read with S.34 of the Code and sentenced each of them to undergo imprisonment for life. The co-accused persons were acquitted of all the charges and the two appellants were acquitted of the charges other than the charge under S.302 read with S.34 of the Code.

(3.) Mr. M.N. Das, appearing for the appellants, has submitted that the medical evidence did not clearly point to the conclusion that the death of the deceased was directly attributable to the injuries sustained by him as a result of the assault by the two appellants. He has taken us through the evidence of P.Ws. 2, 6 and 7 and has submitted that the evidence of these three witnesses was utterly untrustworthy and the learned Sessions Judge went wrong in relying on their testimony and basing a conviction thereon. Mr. D.P. Sahoo, the learned Standing Counsel, has submitted that the medical evidence would clearly indicate that the death of the deceased was homicidal in nature and that P.Ws. 2, 6 and 7 had given clear and consistent evidence which had found support in the medical evidence. According to him, the appellants had properly been convicted under section 302 read with S.34 of the Code.