GOURANGA NAIK Vs. STATE

JUDGEMENT

(1.) These two appeals arising out of the same judgment and order have been heard together and will be governed by this common judgment.

(2.) We would, at the outset, give a brief outline of the case of the prosecution and the steps taken in the course of investigation. The appellants in these appeals with two other co-accused persons, namely, Bharat Chandra Pani and Prafulla Kumar Pani, stood their trial in the Court of Session. The appellant Maheswar Pani stood charged under S. 302 of the Penal Code ('the Code', for short) for having committed the murder of Brahmananda Pani (to be described hereinafter as 'the deceased') by dealing a blow on his head with a crow-bar on Nov. 3, 1978, at Jaleswarpur in the district of Cuttack and the appellant Gouranga and the two other co-accused persons stood charged under S. 302 read with S. 34 of the Code for commission of the same murder in furtherance of their common intention. The appellant Gouranga stood separately charged under S. 341 of the Code for wrongfully restraining the deceased by catching hold of him which, according to the prosecution, facilitated the appellant Maheswar to deal the blow on the head of the deceased. The two appellants and the other two co-accused persons stood charged under S. 324 read with S. 34 of the Code for voluntarily causing hurt to Niranjan Pani (P.W. 1), Netrananda Pani (P.W. 8) and the deceased by means of a crowbar and lathis which, used as weapons of offences, were likely to cause death.

(3.) The deceased, the injured witnesses, the appellants and the co-accused persons belonged to the same village. The appellant Maheswar and the co-accused Bharat, being the sons of Nanda Kishore and the co-accused Prafulla, being the son of Gajendra, both Gajendra and Nanda Kishore being the sons of Krushna, are brothers. There had been long standing dispute between the two groups which had led to various litigations and on the day previous to the day of occurrence, Sarat Pani (another son of Gajendra), also belonging to the group of the appellants and the co-accused persons, had reported at the Mahanga Police Station against the complainant's party for damage to paddy crops. In the morning of Nov. 3, 1978, while Balabhadra (P.W. 3), the son of the deceased, was returning after taking his bath, the co-accused Bharat abused him for cutting away his paddy crops during the previous night to which the former protested and on being called out by the co-accused Bharat; the other three accused persons came to the scene, the appellant Maheswar being armed with a crow-bar and the accused Prafulla having two lathis. The appellant Gouranga had come to the scene without any instrument. The deceased, who had gone out to arrange labour, was then returning. The appellant Gouranga caught hold of him and the appellant Maheswar dealt a blow with the crow-bar on his head which ultimately proved fatal and the deceased fell down. Niranjan (P.W. 1) came to the rescue of the deceased when he was dealt a blow by means of the crow-bar on his head by the same appellant Maheswar. Similarly when Netrananda (P.W. 8) came to the scene, he was dealt a blow by the same appellant, which hit his head, by means of the crow-bar. The co-accused Prafulla and Bharat, it was alleged, had been brandishing lathis on the scene of attack. When a number of persons gathered, the two appellants and the co-accused persons took to their heels in the direction of the house of Kailash Tripathy and while leaving the spot, the appellant Maheswar Had thrown away the crow-bar (M.O. I) on the spot which had later been picked up by Pravakar Pradhan (P.W. 5) and made over to Rangalata (P.W. 6), the widow of the deceased, who, in turn, had produced it in the course of investigation and it was seized. The deceased was carried to the Primary Health Centre at Mahanga and the two injured persons Niranjan (P.W. 1) and Netrananda (P.W. 8) also went to that place for treatment. On the basis of the report (Ex. 1/1) made by P.W. 1, investigation followed in the course of which the deceased and the two injured persons were examined by the Medical Officer (P.W. 12) at Mahanga as per the injury reports (Exts. 5 to 7) and attempts were made to remove the deceased for medical treatment at Cuttack, but no vehicle could be available and the deceased succumbed to the injuries sustained by him. In the course of investigation, the Officer-in-charge of the Mahanga Police Station (P.W. 14) took steps for the autopsy over the dead body of the deceased which was done by the doctor (P.W. 13) as per the postmortem report (Ex. 8) and the Investigating Officer seized M.O.I, on production by Rangalata (P.W. 6), the clothes of the deceased (M.Os. II and III) and bloodstained and sample of earth from the spot. On his transfer, he made over charge of the investigation of the case on Aug. 17, 1979 to P.W. 11 who submitted the charge-sheet in Nov., 1979.