SUKADEV MOHANTY Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE present Criminal Appeal has been filed against the Order dated 23.3.1987 passed by the First Additional Sessions Judge, Cuttack in Sessions Trial No. 123 of 1986, State v. Sukadev Mohanty and 14 Ors. Additional Sessions Judge, Cuttack acquitted all the accused persons except the present appellants. Out of them Sukadeva Mohanty (Appellant No. 1), Bijay Mohanty (Appellant No. 2) and Sarat Mohanty (Appellant No. 3) were convicted and sentenced to undergo rigorous imprisonment for one year each for the offence punishable under Section 323, I PC whereas, Hemanta Mohanty (Appellant No. 4) was convicted and sentenced to undergo rigorous imprisonment for two years for the offence punishable under Section 324, IPC.

(2.) THE brief facts of the case are that an FIR was lodged mentioning therein that in the year 1984 there was dispute regarding cultivation of Anabadi land in between village Kolangiri and Nankar and the Bhadralogs prohibited cultivation of Anabadi land and a Panch Faisala to that effect was made. But the villagers cultivated the Anabadi land in the year 1985. On 31.8.85 at about 1 PM. when Ratnakar Mallik (P.W. 4) and his son Michhu Mallik (P.W. 5) were ploughing the Anabadi land, the accused persons and other being armed with Latis, Tentas, Badchha, stones, Bahunga attacked and assaulted them along with Sarbeswar Mallik (P.W. 1), Lokanath Malllik, the informant (P.W. 2), Raghab Mallik (P.W. 6), Michhu Malllik. S/of Pari (P.W. 7), Duryodhan (P.W. 8), Gurubari Mallik (P.W. 9) who came to their rescue causing grievous injuries to them. The injured persons were removed to Gopalpur PHC where they were medically examined by the Medical Officer who sent P.Ws. 1, 4 and 5 to the SCB Medical College Hospital, Cuttack for treatment. The FIR was lodged at Balichandrapur out post on 31.8.85 at 5.30 PM., on the basis of which case was registered at Barachana P. S. on the same day at 9.00 PM. and the police took up investigation, seized some stones lying on the spot, sent requisition for medical examination of the injured persons and examined including the appellants were charge sheeted and consequently the learned Magistrate committed the case to the court of session. The trial was conducted by the learned First Additional Session Judge, Cuttack for the offence punishable under Sections 148/137/149, 324/149, 323 and 324, IPC.

(3.) IT may be noticed here that the injured witnesses got only simple injuries on their persons but the accused persons sustained simple and grievous injuries also. The weapons used against the prosecution witnesses were allegedly hard and blunt and sharp end of weapons while the weapons used for causing injuries to the accused persons were hard and blunt and also hard and blunt/sharp cutting. One of the persons from the side of the accused, namely Mushei Dhal succumbed to his injuries allegedly caused by P.Ws. 2, 4 and 5. Learned counsel appearing for the appellants submitted that against P.Ws. 1 to 9 on the FIR lodged on behalf of the accused persons, trial was conducted by the same court, i.e., First Additional Sessions Judge. He has submitted that in the memo of appeal in Paragraph -7 it has been specifically mentioned that the learned Additional Sessions Judge has convicted P.Ws. 2,4 and 5 under Section 304 Part -II read with Section 34, IPC for causing death if Mushei Dhal and sentenced them to undergo rigorous imprisonment for five years each and has acquitted others on the ground that there was no independent corroboration to establish the charges under Sections 325, 148, 325 read with Sections 149, 302 read with Section 149, IPC in ST. No. 78 of 1986. Further in the instant matter, the Learned Additional Sessions Judge acquitted all the 15 accused persons from the charges under Sections 148, 307/149, 324/149, IPC and only sentenced the appellants as mentioned above. Further Shri Dhal has submitted that the place of incident is the residence of the accused persons i.e. village Kolangiri and, therefore, it is clear that the accused -appellants had not gone to the place of P.Ws. rather P.Ws. came to the place of the accused and thus it cannot be said that there was common intention of the accused and thus it cannot be said that there was common intention of the accused to cause hurt to the P.Ws. and as such the prosecution has not come with clean hands.