RAMA CHANDRA JENA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The order of conviction under Section 302 read with Section 34 of the Indian Penal Code has been recorded against the appellants by the Court of Session, sentencing them to undergo imprisonment for life, after holding the case of the prosecution established that in the evening of November 3, 1979, the four appellants, one of them, namely, Puma Chandra Jena, being armed with a bicycle chain and the other three appellants, namely, Rama Chandra Jena, Ghanashyam Jena and Sindhu Jena, being armed with lathis, assaulted Sidhanath Mohanty (hereinafter described as the deceasedT) under a banyan tree near the Gangadharpur U.P. School in the district of Cuttack which resulted in his death and they took to their heels. The deceased was carried to Jaipur and he was treated by the doctor (P.W. 9), but he succumbed to the injuries where after another doctor (P.W. 8) conducted the autopsy. On the first information report being lodged by P.W. 2, the investigation proceeded and on its completion, a charge-sheet was placed and the appellants were prosecuted.

(2.) Of the ten witnesses examined for the prosecution to bring home the charge under Section 302 read with Section 34 of the Indian Penal Code, P.Ws. 2 to 4 did not support it and were put leading questions under Section 154 of the Evidence Act. The prosecution-J: had relied on the testimony of P.W. 1 who claimed to have witnessed the occurrence of assault, that of P.Ws. 1, 5 and 6 who had seen the appellants going away from the place of occurrence soon after the assault on the person of the deceased, the medical evidence and the recoveries of a Dhoti (M.O. I) and a Punjab; (M.O. II) from the person of the appellant Rama Chandra Jena, a lathi, a cut portion of which had been marked M.O. III, from a paddy field on the basis of the statement made by the appellant Ghanashyam Jena, a Dhoti (M.O. IV) on production by the appellant Sindhu Jena and a Dhoti (M 0. VI) on production by the appellant Puma Chandra Jena in the course of investigation which, on chemical examination and serological test, were found to contain human blood. There was, in addition, a dying declaration said to have been made by the deceased before P. Ws. 1 and 5 to 7.

(3.) The learned trial Judge held that no motive for the commission of the offence had been established. The evidence with regard to the dying declaration was rejected because of serious differences in the testimony of the witnesses. The evidence of P.W. 5 that the appellants had been seen going away from the spot was not relied on, as this important statement had not been made by P.W. 5 in the course of investigation. The learned Sessions Judge relied on the ocular testimony of P.W. 1 with regard to the occurrence and that of P. Ws. 1 and 6 who had seen the appellants going away from the spot. Besides, reliance had been placed by him on the recoveries of the incriminating articles referred to above which contained human blood.