STATE OF ORISSA Vs. BRAMHANANDA BHOI AND OTHERS

JUDGEMENT

(1.) This is an appeal under section 378 of the Code of Criminal Procedure preferred by the State of Orissa challenging the impugned judgment and order dated 29.11.1999 passed by the learned Addl. Sessions Judge, Jagatsinghpur in Sessions Trial Case No.548 of 1997 in acquitting the respondents of the charges under sections 336/323/436/302/34 of the Indian Penal Code.

(2.) The prosecution case as per the First Information Report (Ext.1) lodged by P.W.1 Radhu Kandi before the Officer in Charge of Naugaon Police Station on 04.06.1996 is that there was theft of utensils and other articles of Nalakana Gadibramha deity situated in village Chandakapatna in the district of Jagatsinghpur amounting to Rs.10,000/ -. The villages of Chandakapatna fixed responsibility on respondent no.2 Rabi Bhoi for such theft. Though the respondent no.2 confessed his guilt but he did not attend the village meeting which was convened for the said purpose on repeated occasions rather he formed an unholy combination with others and conspired to avoid liability of theft. It is the further prosecution case, as per First Information Report that on 04.06.1996 at about 10 a.m., the main priest of Nalakana Gadibramha namely Sankar Samal, Radhu Bhoi (hereafter "the deceased") and Pabani Samal (P.W.3) confronted respondent no.2 about the commission of theft but the respondent no.2 abused the main priest in filthy language and pushed him. The deceased and P.W.3 who were present there, protested against the conduct of respondent no.2 for which the other respondents started pelting brickbats at them as result of which the deceased sustained injuries on his left hand and abdomen and fell down on the ground. Respondent no.8 Jhatu Bhoi assaulted P.W.3 by means of lathi on his head for which he sustained bleeding injuries. Respondent no.7 Chaitanya Bhoi, his wife Manduri Bhoi (respondent no.12) and respondent no.2 Rabi Bhoi removed all the articles from the house of respondent no.7 and set fire to the house. Hearing hulla, when other co -villages assembled at the spot, the disturbance subsided. It is further stated in the First Information Report that number of co -villagers were present at the spot and they had seen the occurrence and the respondents formed an unlawful assembly and committed the crime and set fire to the house of respondent no.7 just to save respondent no.2 from the accusation of theft.

(3.) On the basis of such First Information Report, Naugaon P.S. Case No. 44 of 1996 was registered on 04.06.1996 for the offences under sections 341/323/325/336/436/34 of the Indian Penal Code by A.S.I. of Police namely Satrughana Biswal (P.W.9) of Naugaon Police Station in absence of the Officer in Charge. P.W.9 took up investigation of the case and examined the informant and other witnesses, sent the deceased who was by then in an injured condition and injured Pabani Samal (P.W.3) to Naugaon P.H.C. for their medical examination. He visited the spot and on 04.06.1996, he seized burnt straw, bamboo and some black metal in presence of witnesses as per seizure list Ext.4. He arrested some of the respondents and forwarded them to Court and on 15.06.1996, he handed over the charge of investigation to Bijoy Kumar Mallick (P.W.8), Officer in Charge of Naugaon Police Station. After taking over charge of investigation, P.W.8 arrested some of the respondents and forwarded them to Court and examined the witnesses. After the death of the deceased while undergoing treatment at S.C.B. Medical College and Hospital, Cuttack during the night on 14.06.1996, P.W.7 Debraj Bhuyan, A.S.I. of Police attached to S.C.B. Medical Outpost, under Mangalabag Police Station conducted inquest over the dead body of the deceased and prepared the inquest report Ext.2. He sent the dead body for post mortem examination under dead body challan Ext.3. P.W.10 Dr. Suniti Acharya, Associate Professor, Department of FMT, S.C.B. Medical College, Cuttack conducted post mortem examination over the dead body of the deceased on 15.06.1996 and prepared the post mortem report Ext.7 and opined the cause of death of the deceased was on account of shock as a result of peritonitis. The Investigating Officer (P.W.8) also collected the injury report of injured Pabani Samal (P.W.3) and after completion of investigation, he submitted charge sheet under sections 336/323/436/302/34 of the Indian Penal Code against the respondents on 14.09.1996.