BHABAGRAHI Vs. STATE

JUDGEMENT

(1.) The Criminal Appeal and the government Appeal arising out of the same judgment and order have been heard together and will be governed by this common judgment.

(2.) The convicted prisoner Bhabagrahi Mohanty has appealed against the order of conviction passed against him by the court of trial under S. 302 of I. P. C. (for short, 'the Code') sentencing him to undergo imprisonment for life and the State is in appeal against the order of acquittal recorded in respect of the co-accused Sudam alias Babaji Pradhan. The two accused persons stood charged under S. 302 read with S. 34 of the Code with having committed the murder of Muralidhar Sahu (to be described hereinafter as 'the deceased') in furtherance of their common intention by assaulting the deceased on his head with lathis some time before the evening of Sept. 7, 1980, at Kurtang in the district of Cuttack and the reason for this was said to be a sudden quarrel between the deceased on the one hand and the two accused persons on the other as the deceased had removed a blockage put by the two accused persons to prevent water flowing from the land of the deceased and in the course of the quarrel, the appellant Bhabagrahi had picked up a split bamboo from the fence nearby and the other co-accused Sudam took out a bamboo pole from the roof of a temple on the spot and dealt blows on the head of the deceased who was first taken to the Raghunathpur Public Health Centre where the doctor (P.W.10) examined the deceased and also Harihar Sahu (P.W.4), son of the deceased, who had sustained injuries also at the hands of the co-accused Sudam, as alleged by the prosecution, during the occurrence and P.W.14 was the Assistant Professor in the Neuro Surgery Department of the S.C.B. Medical College Hospital at Cuttack who had conducted the operation and had removed the broken pieces of the frontal bone of the deceased who succumbed to the injuries. Another doctor (P.W. 9) had conducted the autopsy over the dead body. While the case of the prosecution was that death of the deceased was homicidal in nature, the defence wanted to make out that it had been caused by an accidental fall as a result of which the head of the deceased had hit the stoney place on the spot. To bring home the charges, reliance had been examined by the prosecution on the evidence of fourteen witnesses. No witness had been examined by the accused persons in their defence. The trial court held that the charge under S. 302 read with S.34 of the Code had not been brought home to the accused persons. It also held that the charge under S. 323 of the Code against the co-accused Sudam had not been established. Accepting the case of the prosecution that the injuries sustained by the deceased on his head as a result of the assault by the appellant Bhabagrahi had resulted in his death and holding that the appellant Bhabagrahi had the intention of causing his death, the trial court found that this appellant was liable to be convicted under S. 302 of the Code and he was accordingly convicted and sentenced as stated above.

(3.) Mr. B. K. Sahu, appearing on behalf of the appellant Bhabagrahi has taken us through the relevant evidence and has submitted that the appellant Bhabagrahi could not be convicted under S. 302 of the Code and that the evidence led by the prosecution against him was unworthy of acceptance. The learned Standing Counsel has contended that there was no reason as to why the evidence of a large body of eye-witnesses should have been discarded by the learned Sessions Judge and it had correctly been concluded that the appellant assaulted on the person of the deceased which resulted in his death. An initial attempt was made by the learned Standing Counsel to support the Government Appeal, but ultimately he contended that it could not be said on the evidence that the finding of acquittal in respect of the respondent in the Government Appeal could not have been recorded on the evidence on record. Mrs. Padhi has supported the order of acquittal recorded against the respondent in the Government Appeal.