YUDHISTIR BARIK Vs. STATE OF ORISSA

JUDGEMENT

(1.) This Appeal is directed against the judgment and order dtd. 16/8/2001 passed by the learned Second Additional Sessions Judge, Cuttack in Sessions Trial Case No. 197 of 1999. The Appellants faced trial for the offences punishable under Ss. 148, 436, 302 and 307 read with Sec. 149 of the Indian Penal Code (for short, 'IPC'). Upon conclusion of the trial, they were found guilty for the offences under Ss. 148 and 302 of the I.P.C., but all of them were acquitted of the charge under Sec. 307/149 of the I.P.C. For the offence under Sec. 302 IPC, each of the Appellants has been sentenced to undergo imprisonment for life. No separate sentence has been awarded for the conviction under Sec. 148 IPC. The Appellants Yudhistir Barik, Shriram Ch. Barik and Basudev Barik, who were additionally convicted for the offence under Sec. 436 IPC, have also not been awarded any separate sentence for the said offence.

(2.) The prosecution case, shorn of unnecessary details, may be recapitulated as follows. On 7/11/1996, Prabir Ojha (P.W.12), son of Natabar Ojha (the deceased), lodged a written report before the Officer-in-Charge, Niali Police Station, alleging that their family had been residing on the disputed property since the last forty years, having purchased the same, though no registered document had been executed in their favour. It was alleged that on the morning of 7/11/1996, the Appellants, along with several others, arrived at the house of the deceased and set it ablaze, thereby destroying all household articles. When the deceased protested, the Appellants and their associates assaulted him mercilessly, causing severe bleeding injuries and rendering him critically injured, whereafter he was shifted to the S.C.B. Medical College and Hospital, Cuttack. It was further stated that the Appellants and their associates also attacked the other inmates of the house, including the women members, and abused them in filthy language while being armed with bhujali, farsa and thenga. As a result, Ugra Charan Ojha sustained bleeding injuries on his head, two of his teeth were uprooted, and the nasal bone was fractured. Similarly, Sambhunath Ojha (P.W.1) and Alekha Ojha sustained bleeding head injuries. Bishnu Ojha (P.W.13) and Bikash Ojha (P.W.9) received injuries on their head and hands, while Budi Ojha and Gangadhar Ojha also suffered injuries due to assaults with thenga. On receipt of the written report, Niali P.S. Case No. 190 of 1996 was registered on 7/11/1996 vide Ext.3.

(3.) In course of the investigation, the I.O. (P.W.17) examined the Informant and issued injury requisition for his medical examination. He thereafter visited the spot as well as the Niali P.H.C., where he found the injured persons namely Sambhunath Ojha (P.W.1), Bishnu Ojha (P.W.13), Bikash Ojha (P.W.9), Ugrasen Ojha and Alekha Ojha under medical treatment and observation. He examined P.W.1 at the Niali P.H.C., though the remaining injured persons could not be examined at that time as they had been advised complete rest. The deceased while in an injured condition had already been referred to the S.C.B. Medical College and Hospital, Cuttack owing to the seriousness of his condition. The I.O. issued injury requisitions in respect of all the injured persons and, during his spot visit on 7/11/1996, prepared the spot map (Ext.10). He examined Budhi Ojha at the spot and seized blood-stained earth and sample earth under Ext.11. The blood-stained wearing apparel of the deceased was seized under Ext.12. In the course of search operations, he recovered and seized one lathi from the house of Sriram Barik under Ext.13; one lathi from the house of Basudev Barik under Ext.14; a bamboo lathi from the house of Narendra Barik under Ext.15; another lathi from the house of Iswar Barik under Ext.16; and yet another lathi from the house of Khira Barik under Ext.17. A lathi was also seized from the house of Bira Barik under Ext.18. He further seized big brickbats and boulders from the spot under Ext.19, and seized burnt bamboo pieces and ashes under Ext.20. On 8/11/1996, he examined injured persons Bishnu @ Daitari Ojha, Bikash Ojha, Ugrasen Ojha and Alekha Ojha. On the same day, he received information from the I.I.C., Mangalabag Police Station that Natabar Ojha had succumbed to his injuries at the S.C.B. Medical College and Hospital. The I.O. requisitioned the Tahasildar, Niali, for deputation of an R.I. to prepare a detailed spot map. On 9/11/1996, he arrested eleven accused persons, and subsequently arrested another accused on 20/11/1996 and forwarded him to Court. He received the injury reports of six injured persons from the Medical Officers and also received the supplementary case diary from the I.I.C., Mangalabag P.S. in connection with Mangalabag U.D. Case No. 654 of 1996, including the post-mortem report of the deceased Natabar Ojha, the inquest report and the dead-body challan. Two packets containing blood sample and scalp hair of the deceased were seized from Constable No.105 under Ext.21. On his transfer, the charge of investigation was made over to his successor, S.I. Pradip Kumar Dalai. In course of the investigation, the I.O. also ascertained that a counter case had been registered at the instance of the Appellants, being Niali P.S. Case No.191 of 1996, which culminated in S.T. Case No.198 of 1999 corresponding to G.R. Case No.1416 of 1996, for the offences punishable under Ss. 147/323/436 read with Sec. 149 of the IPC.