UPENDRA MAGAR & OTHERS Vs. STATE OF ORISSA

JUDGEMENT

(1.) The appellants herein call in question the judgment of conviction and order of sentence dated 27.08.1992 passed against them in Sessions Case No.37 of 1992 on the file of the Sessions Judge, Balangir, Camp at Patnagarh. By the impugned judgment, the learned trial court while acquitting the appellants of the charge under Section 302 read with Section 34 of the Indian Penal Code, 1860 (for short "the IPC"), held them guilty of the charge under Section 304, Part-I of IPC and sentenced each of them to undergo R.I. for three years.

(2.) Prosecution case as placed before the trial court is that on 26.07.1991 at about 4 p.m. the appellants in one side and some of the prosecution witnesses on the other side fought each other on village 'Danda' of Lachhimal over land dispute. In course of that, one Raisingh Khandhapani (hereinafter referred to as "the deceased") arrived at the scene of occurrence and made an attempt to dissuade the wearing party from fighting each other. The appellants mistook him to be a tout and immediately attacked him with lathis. In course of such attack and counter attack, the appellant - Bisal @ Harihar Padhan inflicted a blow on the head of the deceased by a thick lathi causing profuse bleeding and the deceased fell down on the road. While he was still lying, other appellants also inflicted lathi blows over his body indiscriminately, for which he sustained multiple injuries. In a precarious condition he was shifted to hospital where in course of medical treatment he succumbed to the injuries sustained. The matter was reported at Khaprakhol Police Station vide Khaprakhol P.S. Case No.36 of 1991 whereafter investigation was taken up. On completion thereof, charge-sheet was laid against the appellants under Section 302 read with Section 34 of IPC. The S.D.J.M., Patnagarh committed the case to the Court of Sessions. The trial court on the basis of material placed by the police framed charge under Section 302 read with Section 34 of IPC against all the appellants who pleaded not guilty to the charge and claimed to be tried. Prosecution examined 8 witnesses, exhibited 15 documents and 15 M.Os. to substantiate its allegation against the appellants. The appellants who had taken a plea of denial and false implication examined one Sara Banda as a defence witness and exhibited 5 documents in support of their plea to show that it is the appellants and not the prosecution witnesses who had sustained injuries in course of that occurrence. On conclusion of the trial, while acquitting the appellants of the charge under Section 302 of IPC, the learned trial court held all the appellants guilty under Section 304, Part-I read with Section 34 of IPC and sentenced them as aforesaid.

(3.) Heard the learned counsel for the parties at length and perused the materials placed on record with care and caution.