STATE Vs. DWARI BEHERA

JUDGEMENT

(1.) THIS is a reference under Section 366 of the Code of Criminal Procedure by the learned Additional Sessions Judge, Dhenkanal for confirmation of the sentence of death imposed by him under S. 302/34 I. P. C, on both the accused persons in Sessions Trial No 20 of 1974. The accused persons have also filed appeal - -one from jail (Criminal Appeal No. 113/75) and another through Counsel (Criminal Appeal No. 130/75). The Reference and the Appeals have been heard together.

(2.) PROSECUTION case may be stated as follows. Both the accused persons are brothers being sons of Natha Behera, Deceased Kandhia Behera is the brother of Natha. Kandhia left the village nearly 15 to 16 years back. Thereupon Natha took care of the minor children of Kandhia. Natha died 5 or 6 years back. Thereafter accused Dibakar stepped into the shoes of Natha and managed the properties of Kandhia as well as affairs of Balia Behera (P.W. 15) son of Kandhia Balia (P, W. 15) parted a major portion of the landed property in favour of the minor son of accused Dibakar and also in favour of Natha Behera and shifted to the house of his father -in -law Rajib Setho where he remained with his wife. The deceased returned to the village a few months before the occurrence and disputed the transfers made by his son. Consequently there was a panchayat who gave some decision. Kandhia did not respect this decision. Accused Dibakar started a criminal case against Kandhia. On Tuesday the 19th of June, 1973 Kandhia had been to the house of his Samu -dhi, Rajib Setho to see his grandson son of Balia, P.W. 15). He took tea and came out of the house to the front courtyard. At that time both the accused persons were passing by that way. Accused Dibakar bad a Barchha (M. O. i) and accused Dwari was holding a Tangia (M. O. II). As soon as Dwari saw Kandhia, he told Dibakar 'Ai Salata this Hoichhi' and both of them rushed towards Kandhia. Suddenly Dibakar saying 'Sala Bila Khaibuki' pierced the barchha into the left side of the neck of Kandhia. Then he took out the barchha and exhorted Dwari to hack Kandhia. Thereupon Dwari inflicted three blows on the left flank with the Tangia. Kandhia fell down and died within a short time. Both the accused persons left the place with the blood stained weapons. While they were passing by the side of the shop house of Lachman Moha -bhoi, they gave out that they had killed Kandhia. At that place Dwari attempted to assault Nandia Behera (P.W. 14) with the Tangia but the assault was averted by intervention of others. Balia, the son of the deceased (P.W. 15) was absent from home as he had gone for cutting grass in Godari chaka. He came back home a few hours after when he received information of murder of his father. After obtaining details from his wife (P.W. 2) he went to Mohabi -rod police out -post situated at a distance of six miles with the Gramarakhi (D. W. 1) and one Hari Behera and reached the place at about mid -night on that day and orally reported the incident to the A, S.I. In -charge of out -post, The A. S.I. instead of reducing his oral report in writing sent Tankadhar Biswal (P.W. 10) to callMayadhar Dehnry (P.W. 11) to scribe the F. I. R. to be Iodised by Balia, (P, W. 15). On instruction of Balia, Mayadhar wrote out the F. I. R. The contents of the F. I. R. were read over to Balia who signed the same. The A, S.I. (P.W. 17) examined the informant at the out -post, Accused Dwari also cams to the out -post with the barchha (M. O, I) and the Tangia (M. O. II) which were seized by the A. S.I. and Dwari was arrested there. P.W. 17 reached the spot at about 5 p, m. next day. He examined P.W. 2 and held inquest over the dead body which was lying in front of the house of Rajib Setho. He seized blood stained earth from the place and the living worn by the deceased as well as one torn Sari from the spot. He despatched the dead body to Kamakhyanagar hospital for post -mortem examination with a constable and the Gramarakhi. The officer -in -charge of Parfang police station (P.W. 16) took charge of investigation from the A, S.I. in the village at about ,5 p.m. on 26 -6 -1973. On the direction of the S.I., the A. S.I. seized the application filed by the deceased before the Sarpanch relating to laid dispute, The A, S.I. examined P.Ws.. 1, 2, 3, 4, 5, 13 and other persons as well as both the accused persons on 20 -6 -1973. By the time the S, I. reached the spot at about 5 p.m. on 20 -6 -1973, both the accused persons had already beep arrested by the A. S.I. After completing investigation, he submitted charge -sheet under Section 302 read with Section 34 I, P.C. against both the accused persons. Both the accused persons were charged under Section 302/34 I, P.C.

(3.) DIBAKAR says that in the afternoon of the date of occurrence both, he and his brother had gone to the paddy field with the Tangia (M. O. II) and were posting wooden poles there, He denies to have taken any part in the assault nor he was carrying the barchha and did not go to the village exclaiming that they had killed Kandhia. The deceased did not honour the decision of the Panchayat and sowed paddy on the land purchased by him from Balia. Thereafter there was a dispute which resulted in the incident and he did not take part in the alleged occurrence. The learned Additional Sessions Judge has convicted both the accused persons under Section 302/34 I. P.C. basing on the following evidence.