STATE Vs. DHARANIDHAR MOHANTY

JUDGEMENT

(1.) This is a reference under Section 366 Criminal Proceding Code for the confirmation of sentences of death passed on Dharamidkar Mohanty and Sana Mohamly who have respectively been convicted under Sections 302 and 302/34, Indian Penal Code far having committed the murder of their first cousin Sugriba Mohanty. The two accused persons have also preferred a Jail Criminal Appeal No. 109 of 1975 and Criminal Appeal No. 114 of 1975 from the judgment of their convictions and sentences. The death reference has been heard along with the appeal filed by the accused per-sons.

(2.) On a Tuesday in the month of Baisakh 1974 which is equivalent to 16-4-1974 at about 9 a.m. the deceased and his Halia (P. W. 4) loaded a cart with manure and proceeded towards Madhuban Chak for the purpose of manuring the lands of the former. The cart was being driven by the Halia sitting in its front and the deceased was following it. As soon as they crossed the gate of the house of the accused persons, the deceased was assaulted by both the accused persons one after another and ultimately accused Dharani dealt the fatal blow with a Bhala (M. O. 1). At the time of this killing accused Sana was armed with a Tangia and accused Dharani was armed with a Bhala (M. O. 1). No sooner was the deceased before the gate of their house than accused Sana raised a Tangia at the deceased and gave a blow which cut the deceased on his right arm. The deceased thereafter caught hold of the wooden handle of the Tangia and a struggle ensued for pos-session of the Tangia between the deceased and accused Sana. It was while they were just struggling, accused Dharani came with a Bhala and pierced it into the abdomen of the deceased causing the intestines to spill out. The deceased then clutching his abdomen injury ran to a nearby field and then fell down and subsequently died. Thereafter both the accused persons fled away carrying with them the Tangia and the Bhala (M. O. I).

(3.) P. W. 1, the brother-in-law of the deceased, went towards the spot at the request of his sister to find out the reason for the Golmal about which she overheard some ladies talking. While going towards the place of occurrence, he met P. W. 4 coming towards the village and the latter informed him that the two accused persons had assaulted the deceased who was lying injured on a field. On reaching the spot he found the deceased lying on a field of Bansidhar Pani at a distance of about 100 cubits from the gate of the accused persons. He also found that other villagers including P. W. 2 had already gathered there. He immediately directed the manure cart to be unloaded and made ready for carrying the injured to the hospital. He also sent someone to fetch water for being given to the deceased. He gave some water to the deceased who made a dying declaration in presence of P. Ws. 2, 3 and 4 in the following words:-- "Dharani Mohanty. Sana Mohanty Bhala O Tangiare Dui Bhai Misi Mari Dele. Mun Khata Dhari Bilaku Asuthili. Hathat Dharani Mohanty Bhala Maridela. Sana Mohanty Tangiare Hani Dela. Mun Au Banchiparibi Nahin. Mora Pila Chhua Tote Lagile." Subsequently the wife of the deceased came there and seeing the condition of her husband started fainting repeatedly. On the suggestion of one Ganeswar Mohanty that further delay should not be made in carrying the deceased to the hospital, the empty manure cart was brought up and the deceased was placed inside the Lodara. But when the cart came to the road, P. W. 1 and others discovered that the deceased had died. The cart, therefore, was stopped at that place with the dead body of the deceased inside it and P. W. 1 after making arrangement for the nursing of his sister, proceeded to Dhen-kanal Sadar police station 16 Kms away on a cycle and lodged the F. I. R. at 2.20 p. m. (Ext. 1), The I. O. (P W. 12) left the police station at 2.40 p. m. and reached the spot at 3.30 p. m. He held inquest over the dead body at 4.45 p. m. and drew up inquest report (Ext. 8/2). He seized bloodstained earth from the field of Bansidhar Pani where the deceased ultimately fell down after being assaulted. He also seized the Bhala (M. O. I) from the south-western corner of the room of the accused persons under seizure list (Ext. 5/2). He sent the dead body for post-mortem examination which was held by P. W. 13 at Dhenkanal Hospital at 9 a. m. on 17-4-1974. He did not find the accused persons in the village and attempted to trace them but without success. He examined some witnesses including P. W. 4. On 17-4-1974 he went to village Biswanathpur with his A. S. I. in search of the accused persons as their brother was living there but did not find them. He returned back to the police station at 7 a. m. On the same day he again went to the village of occurrence and other neighbouring villages in search of the accused persons but found no trace of them and learnt that they had Hone to Dhenkanal to surrender. He returned to the police station at 3 p. m. By that time the accused persons had been arrested by P. W. 11, second officer in charge of the police station, and a bloodstained cloth had been seized from the person of accused Dharani under seizure list (Ext. 9). He got the sketch map of the place of occurrence prepared by the Revenue Amin. On 27-4-1974 he received the postmortem examination report and found that the doctor had not mentioned about the injury on the right upper arm of the deceased which he had found at the time of inquest. Therefore, he made enquiries regarding it to find out how and under what circumstances he had not mentioned about the injury on the upper right arm of the deceased, and whether the injury on the abdomen could be caused by the Bhala (M. O. I) and whether the injuries on the deceased were sufficient to cause death in the ordinary course of nature. He received the reply of the Medical Officer (Ext. 14/1). He seized some documents from the local record room and kept the same in the zima of the Record Keeper. He took steps for sending M. O. I. bloodstained earth, sample earth. Dhoti and Gamuchha of the deceased and Dhoti of accused Dharani for chemical analysis and Serologist's report-After completion of investigation, he submitted charge-sheet against both the appellants under Section 302/34. I. P. C on 31-7-1974.