RATNAKAR MALLIK Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE above criminal appeal has been filed challenging the judgment and order dated 23.03.1987 passed by the 1 st Addl. Sessions Judge, Cuttack in S.T. No. 78 of 1986 convicting the appellants under Section 304 -II read with Section 34, I.P.C. and sentencing them to undergo rigorous imprisonment for five years. During pendency of the appeal, appellant No. 1 -Ratnakar Mallick has died. Therefore, the appeal stands abated as against him.

(2.) THE case of the prosecution, as unfolded during trial, is that on 31.08.1985 when Musei Dhal (since dead) was performing weeding operation in his land, the accused persons being armed with deadly weapons all on a sudden surrounded him. Accused -appellants Ratnakar, Michhu (son of Ratnakar) and Lokanath assaulted the deceased with lathis and Bahuings. The other accused persons assaulted Biswanath @ Biswambar, Bhagaban, Purna, Shyamsundar and Siba. On the same day, FIR was lodged at 9 p.m. at Badachana P.S. by the deceased himself and on the basis of the said FIR the case was registered. The informant was sent to Badachana P.H.C. for treatment, but the Medical Officer, Badachana P.H.C. referred him to the S.C.B. Medical College and Hospital, Cuttack, where he succumbed to the injuries on 02.09.1985. The Police seized a lathi (M.O.I.) from the house of the accused Raghu, two lathis (M.Os.ll and III) from the house of accused Babaji and two lathis (M.Os. IV and V) from the house of accused Michhu. After completion of investigation, final form was submitted again 13 accused persons including the above appellants.

(3.) THE plea of the appellants was complete denial of the charges. Their case was that when accused Ratnakar (since dead) and Michhu (son of Ratnakar) were cultivating the Anabadi land of the Government, Musei Dhal and Sukadeb Mohanty (P.W.2) and others came there being armed with deadly weapons and asked them not to cultivate the Anabadi land. When they did not agree, those persons attacked Ratnakar and Michhu (son of Ratnakar) and assaulted Lokanath along with Sarbeswar Mallik, Duryodhan Mallik, Raghab Mallik,Michhu Mallik (son of Pari) and Gurubari Mallick, who came to their rescue, causing grievous injuries. In order to prove its case, prosecution examined as many as sixteen witnesses including the doctors and the I.O. and proved 28 exhibits. Defence also examined three witnesses in support of its case and proved Exts. A to N.