STATE OF ORISSA Vs. DOMANA MAJHI

JUDGEMENT

(1.) THIS is an appeal filed by the State of Qrissa against an order of acquittal passed by the Sessions Judge, Bolangir -Kalahandi in Sessions Trial No. 19 -K of 1072, wherein six of the respondents, namely, Domana Majhi (Respondent No. 1), Lakhidhar Majhi (respondent No. 2), Mahadev Majhi (respondent No. 3), Dhanu Bhoi (respondent No. 4), Prahal -kd Majhi (respondent No. 5) and Khageswar Majhi (respondent No. 9) were facing trial under Sections 302, 323 and 324, Indian Penal Code and 324 Indian Penal Code and all the 30 respondents under various sections such as Sections 148, 302/149, 326/149 - and 324/149; Penal Code.

(2.) THE deceased Butla Sindur as well as all the respondents belong to village Jhikimiki under Kalahandi Sadar Police Station lying at a distance of 19 kilometers from the P.S. 'The deceased was in possession of certain communal grazing land for ,10 to 12 years. In the year 1971, he had raised Kulthi (horse gram), Rasi(Til), Mania and paddy crdps in the said land. The villagers did not relish the and am that account he had enmity with almost all the villagers. : The prosecution ease is thous on 14 -10 -1971 the deceased went to wateh his airproofs. Khageswiar Majhi Rorer who is a arm servant of Domana Bhoi alias Majhi (R. 2) strayed his cattle and damaged the ,crop of the deceased When vie deceased, protested' gainsaid this action. It is .alleged, that respondent No., 2 geese nutmeat, threat with dire consequences. The deceased returned home in a depressed, 'mood' about noon on account of the damage is his crops and the that and feldspar to his often Hlfim -tbars Including; We wife. Some time after he paid otmtvpteto his wife -to obtain rice. His wife (P.W. 1) purchased some rice from the house of Bhutunga Bhoi (R. 14) and while returning home found that all the respondents had gathered in the thrashing floor of respondent No. 1 armed with lathis and were talking amongst themselves to wipe out the family of the deceased and to drive them away from the village at ell cost. P.W. 1 returning home with rice narrated what she had seen and heard. Soon after, the respondents armed with lathis came upon their house. Three of the respondents dragged the deceased from his front verandah to the courtyard and dealt blows on his head. Some one pulled out a Tangi (axe) that was lying there and dealt blows with that also. The deceased's son, and two of the daughters -in -law of the deceased who had concealed themselves in a room adjacent to it for fear of life were also not spared. Six of the assailants broke open the door and caused various injuries on them. Seeing this the wife of the deceased with her younger daughter -in -law (P.W. 4) some how slipped out of the house to village Aphuapada to the house of her another daughter named Kalimati (P.W. 6). While so fleeing, they found how their cottage was levelled to the ground. Then P.W. 1 with her son -in -law Buti Sunari proceeded to Bhawanipatna P.S. and lodged the T. I. R. (Ex. 1) at about 11 p.m. On receipt of the F. I. R., P.W. 10 the Offi -cer -in -charge of Bhawanipatna P.S. drew up the formal F. I. R. (Ex. 29) and (immediately deputed Shri V. G. Sahu, Sub -Inspector of Police to the spot in a police vehicle. While P.W. 10 was still present at the Police Station, the said Sub -Inspector returned with eight of the respondents including Dhanu, Domana, Lakhidhar, Mahadeb and Khageswar who were arrested at about; midnight. Thereafter P.W. 10 visited the spot, took steps for medical examination of the injured persons, held inquest and after some seizure and completion of the investigation submitted charge sheet against the respondents under Sections 147, 452, 143, 326, 427, 307 and 302 read with Section 149, Indian Penal Code. All the 30 respondents were committed to the Court of Session on the above charges which were heaver modified, in that six of them, namely, Domana. Majhi, Lakhidhar Majhi, Mahadev Majhi, Dhanu Bhoi, Prahallad Wajhi, an& Khageswar Majhi, as above -mentioned were, charged under, Sections 302, 326 and 324. Indian Penal Code specifically and they along with all the rest were charged with Sections 148, 302/149, 328/149 and 324/149, Indian Penal Code. But all the accused persons were acquitted of all the charges against them resulting in this appeal by the State.

(3.) THERE are 14 witnesses for the prosecution out of whom P.Ws. 1, 2, 3, 4 and 5 are eye -witnesses to the occurrence. P.Ws. 6 and 7 are two post -occurrence witnesses of village Aphuapada. As already said P.W. 1 with her daughter -in -law (P.W. 4) had escaped to the house of P.W. 7 (her daughter P.W. 6's father -in -law) for shelter. P.Ws. 6 and 7 learning all about the act of lawlessness and vandalism 'at sunset time came to the house of the deceased and found the father dead, the son injured and speechless under debries and P.W. 3 (a daughter -in -law) lying injured almost naked with her two children crying helplessly and the cottage pulled down. P.W. 8 the only' witness of the village turned hostile -P.W. 9 a witness to the various seizures (Sampans of Dadpur Gram Panchayat) deposed in chief that 'the roof of the house of the deceased appeared to have collapsed with the walls having given way' but in cross -examination explained it away saying that it was due to heavy rain and storm 'the -previous night'. If this witness is to be given any credence, then this must have been a very peculiar and discriminating rain and storm that appeared only to affect the cottage of the deceased and no other. P.Ws. 11, 12 and 13 are the three doctors; the first held post -mortem over the dead body end the other two examined the injured P.Ws. 2 and 3. P.Ws. 10 and 14 are the two Investigating Officers and the rest are formal witnesses. There is only one witness for the defence - Phangal Majhi, who supports the plea of alibi taken by Nilambar Bhoi (R. 16).