SARBESWAR MALIK Vs. STATE

JUDGEMENT

(1.) The appellant stood charged under S. 302 of the Penal Code (for short, 'the Code') for intentionally causing the death of Narayan Mallik (to be referred to hereinafter as 'the deceased') on May 18, 1980, in village Bayakuda in the district of Puri. The appellant with the co-accused Ramachandra Mallik, his father, also stood charged under S. 302 read with S. 34 of the Code for committing the murder of the deceased in furtherance of their common intention. A separate charge had been framed against the co-accused Ramachandra under S. 323 of the Code for voluntarily causing hurt, to Mali alias Malati Dei (P. W. 1) and Pramod Kumar Mallik (P. W. 2), the widow and son respectively of the deceased. We would briefly narrate the case of the prosecution. The deceased was a co-villager of the appellant and the co-accused and had his residential house adjacent to the coconut garden of the appellant and the co-accused. Raghu Senapati, who originally owned the homestead land on which the residential house of the deceased stood and the deceased had been on litigating terms and Raghu had been negotiating with the co-accused for alienating a portion of the residential site in his favour. For this, there had been ill-feeling between the co-accused and the deceased. On the day prior to the date of occurrence, P. W. 1 rebuked the appellant. On the day of occurrence, the co-accused Ramachandra went with a lathi and asked the deceased as to why his wife had rebuked on the previous day. The deceased refuted this allegation. There was hot exchange of words between the co-accused and the deceased and to the spot came P. Ws. 1 and 2 and also P. W. 5, another son of the deceased. The appellant had also arrived on the scene with a lathi. When the co-accused raised a lathi to deal a blow on the deceased, the deceased and P. Ws. 1, 2 and 5 snatched it away from his hands. The appellant then assaulted P. Ws. 1 and 2 by the lathi he was holding. On being directed by the co-accused, the appellant went to a nearby coconut tree, picked up a Sabal (crowbar) lying there, rushed back to the spot and pierced the crowbar (M. O. I.) into the left side of the chest of the deceased as a result of which the latter fell down and died. P. W. I, the widow of the deceased, lodged the first information report (Ex. 1/1), being accompanied by Brahmananda Mallik (P. W. 6) who had taken from the spot M. O. I. and had produced it at the police station and this weapon of attack was seized at the police station. The Officer-in-charge (P. W. 12) of the Gop Police Station took up the investigation and examined the witnesses. His successor (P. W. 11) completed it and placed the charge-sheet. A counter case had been started on the basis of the first information report (Ex. 14) lodged by the appellant against the other side for causing hurt to him and his father Ramchandra. That case was simultaneously investigated into and a charge-sheet was placed against P. Ws. 2 and 5. On commitment, the accused persons in both the cases were tried in the two separate cases.

(2.) Of the twelve prosecution witnesses, P. Ws. 1 to 5 had figured as witnesses to the occurrence. P. W. 6, who had gone to the scene of occurrence immediately thereafter, had picked up M. O. I. from the spot and had produced it at the police station. P. W. 8 was the doctor who had conducted autopsy over the dead body of the deceased. P. Ws. 11 and 12 had investigated into the case.

(3.) The plea of the appellant and the co-accused was one of denial about their complicity in the commission of the offences. A case was sought to be made out that the deceased was the aggressor and had, with the assistance of his wife and sons, assaulted and caused hurt to the appellant and his father and while doing so, fell near the fence and a pointed material accidentally pierced into his chest which resulted in his death.