BHARAT KHATEI Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS appeal at the instance of three appellants, namely, appellant No. 1 -Bharat Khatei, appellant No. 2 -Bharat Swain and appellant No. 3 -Kabuli Swain, is directed against the judgment dated 13.8.1998 passed by the Sessions Judge, Puri in S.T. Case No. 90 of 1997 convicting the three appellants under Sections 302/34, IPC and sentencing them thereunder to suffer imprisonment for life.

(2.) THE prosecution case, in brief, is that on 13.5.1994 at about 9.00 P.M., P.W. 10 -Bijay Kumar Nayak appeared at Puri Sadar P.S. and lodged a written complaint alleging, inter alia, that on that day about 4.00 P.M. he along with his father and his elder brother -Raj Kishore Nayak (since deceased) were going to their land near village Barana with a bullock cart loaded with manure. All on a sudden, they heard the hullah from the side of the road connecting Barana village and they saw the appellants and many others named therein being armed with Bhali, Pharsa, Thenga and other weapons of offence rushing towards them from their back side while raising slogan saying 'SALA KU MARA MARA'. However, this witness along with his father fled -away. But, as his elder brother -Raj Kishore Nayak was driving the bullock cart, he could not jump at once from the cart and for this reason, the appellants and their companion encircled the deceased. Despite the aforesaid, the deceased jumped out from the bullock cart and tried to run away from the spot. However, the appellants and other miscreants chased him and assaulted with weapons in their hands and yet while the deceased was still running and shouting, the deceased was assaulted by appellant No. 2 -Bharat Swain with a Bhali blow on his chest. Immediately the deceased fell down and the other accused persons encircled and assaulted him on his head, chest and back with various weapons of offence in their hands. Seeing this, he raised alarm stating 'MARI DELE MARI DELE'. Hearing such alarm, the people rushed towards the spot and at this, the miscreants ran away from the spot. While thus running away, the accused persons scolded this informant in filthy language and accused -Babu Swain (since acquitted); the appellant No. 3 -Babuli Swain and appellant No. 2 -Bharat Swain assaulted him with a Bhali on his left arm. The informant has further stated that his father along with others present there carried the deceased in a Sabari to the clinic of Dr. R.K. Das, who on examining the deceased declared him dead. The informant has further stated that P.W. 4 -Raj Kishore Swain, P.W. 9 -Prahallad Naik and P.W. 5 -Kailash Chandra Nayak are eye witnesses to the occurrence. This witness also received some treatment at Puri District Headquarters Hospital for his injuries. He further stated in the written complaint that his elder brother was an active organizer and strong supporter of Janata Dal and the accused persons including the appellants were supporting Congress Party and due to this, there was enmity and out of that enmity, they murdered the deceased. It was further mentioned by him in his aforesaid written complaint that when Dr. Ratnakar Das -P.W. 8, declared the deceased dead, the O.I.C., Puri Sadar P.S. was present at that place. On the basis of the said written complaint, an FIR registered in the said police station against the appellants and other accused persons under Sections 147/148/307/302/324/323/149, IPC. After usual investigation, the police submitted charge -sheet against the appellants and twenty other accused persons. In due course of time, the case was committed to the Court of Learned Sessions Judge. It further appears from the record that the Learned Trial Court on perusal of the materials on record, framed charges under Sections 148/302 read with Section 149, IPC against all the twenty three accused persons including the three appellants. The Learned Trial Court also framed charge under Section 307, IPC against the accused -Balaram Swain as well as the appellant -Kabuli Swain and Bharat Khatei. The appellants pleaded not guilty to the said charges. In course of trial, all the 13 witnesses were examined on behalf of prosecution. Out of them, it appears that four witnesses, namely, P.W. 1 -Prahallad Nayak, P.W. 4 -Raj Kishore Swain, P.W. 5 -Kailash Chandra Naik and P.W. 10 -Bijay Kumar Nayak are eye witnesses to the occurrence. Some of the witnesses were examined in this case who arrived at the scene of occurrence being attracted by the alarm raised and they saw some of the appellants running away from the place of occurrence with the weapons of offence. They also heard about the incident from the eye witnesses. P.W. 11 -Dr. Bhaktabandhu Mishra held post mortem examination over the dead body of the deceased. No witness was examined on behalf of the appellants in defence. In course of trial, it was suggested on behalf of the appellants and other accused persons that there was a free fight between the two parties. Therefore, presence of the appellants and other accused persons is impliedly admitted while giving such suggestion to the prosecution witnesses. However, during examination under Section 313, Cr.P.C., the appellants did not adopt any such plea. As already stated P.W. 10 -Bijay Kumar Nayak is the informant in this case and is also an eye witness to the occurrence. He claims to have been injured in course of the same incident leading to the murder of the deceased. He is the younger brother of the deceased. On conclusion of the trial, only the three appellants were convicted and sentenced as already stated. The other accused persons were acquitted.

(3.) WE have gone through the cross -examination of this witness and we find nothing therein, so as to discredit this witness. The other eye witness, namely, Rajkishore Swain, P.W. 4 has stated during his examination -in -chief that while he was proceeding to village Nuagaon on the embankment, he saw the accused persons coming from the northern side. He also saw that the accused -Bharat Swain was armed with Bhali, accused -Kabuli Swain was armed with Farsa and accused Bharat Khatei was also armed with Farsa and the others were armed with lathies and Tada and their father and the younger brother of the deceased were present in their land at that time. He has corroborated the statement of other eye witnesses and nothing substantial has been elicited from this witness during the cross -examination. Therefore, his statement has remained unshaken and there is no reason to disbelieve the same. P.W. 5 -Kailash Chandra Naik is another eye witness to the occurrence from whose statement it is found that he has also corroborated in almost all material particulars, the statement of the other eye witnesses and there is nothing in his cross -examination to discredit him. P.W. 9 is the Doctor who examined the injured -informant, P.W. 10 on police requisition. He has stated regarding the injuries found on the person of the informant P.W. 10 which more or less corroborated the statements of the eye witnesses. P.W. 11 is the Medical officer who conducted post mortem on the body of the deceased. He found four incised wounds on various parts of the head of the deceased and several other lacerated injuries on the body of the deceased.