SRIBATSH ROUT Vs. STATE OF ORISSA

JUDGEMENT

(1.) The appellant herein calls in question the judgment of conviction and order of sentence passed against him in S.T. No.216 of 1990 on the file of the Sessions Judge, Sundergarh. The learned Sessions Judge, Sundergarh vide the impugned judgment and order while acquitting the appellant and other accused persons of the charge under Sections 148, 323/149 and 302/149 of the Indian Penal Code (for short "the I.P.C.", held the appellant guilty of the charge under Section 304, Part-II of I.P.C. and sentenced him to undergo imprisonment for five years.

(2.) Prosecution case placed before the trial court is that on 08.02.1990 at about 1.30 p.m., when the informant - Binod Khes (P.W.1) and the deceased Pradeep Kumar Kindo along with their other friends numbering about 8 to 9 were coming out of the hotel of Rajanikant Patnaik after taking their lunch, the appellant along with other accused persons forming an unlawful assembly appeared there. The appellant then caught hold of the hand of the deceased and challenged him about the previous incident in the College and thereafter he was assaulted by fist and kick blows by 4 to 5 others and so also he was assaulted by a lathi on his shoulder by the appellant. One among the accused persons, namely, Saroj Kumar Naik also assaulted the informant by an iron rod causing injuries on his hand. Then when the injured party members were proceeding to the Police Station to report the matter, they met one of their friends, namely, Gyanaranjan Hota on their way, which was at a distance of 150 meters from the spot where they were assaulted. When they were talking with him, the appellant and other accused persons arrived there and the appellant brick-bated at the deceased from a distance of about 10 feet which struck his head, and thereby the deceased sustained injuries and was shifted to the hospital. The informant also sustained injury and was shifted to the hospital. After discharge from the hospital, the informant reported the matter in Town Police Station, Sundargarh and pursuant to the said report, Sundargarh Town P.S. Case No.11 of 1990 was registered under Sections 148, 323/149 of I.P.C. and during course of investigation, when the deceased died while undergoing treatment, the case turned to one under Section 302/149 of I.P.C. On completion of investigation, police found substance in the investigation and placed charge-sheet against the appellant and other accused persons under Sections 148, 323/149 and 302/149 of I.P.C. Accordingly, cognizance was taken by the S.D.J.M., Sundergarh and the case was committed to the Court of Sessions. The trial court placing reliance on such case of the prosecution, framed charge against the appellant and other accused persons, as stated earlier. As the appellant and other accused persons have pleaded not guilty to the charge, trial was held in course of which the prosecution examined as many as eight witnesses and exhibited certain documents, so also the Material Objects to bring home the charge. In their defence, the appellant and other accused persons, though did not produce any oral evidence, but exhibited the casualty memo sent to the police in support of their case.

(3.) It appears that on conclusion of the trial, the trial court placing reliance on the version of the witnesses to the occurrence, so also the postmortem examination report though acquitted all the accused persons of the aforesaid charges, but returned the judgment of conviction and order of sentence against the appellant, as stated earlier.