BANAMALI NAYAK Vs. STATE OF ORISSA

JUDGEMENT

(1.) This appeal is directed against, the order passed by the learned Additional Sessions Judge, Bhawanipatna convicting the appellants under section 323 of the Indian Penal Code (I.P.C. for short) and sentencing each of them to undergo rigorous imprisonment for one year.

(2.) The prosecution case relevant for the purpose of disposal of this appeal is stated in short. Appellant Banamali was the Sarpanch, appellant Muketeswar was the Secretary and appellant Rajkishore was the Peon of the Thuamul Rampur Gram Panchayat in Kalahandi district. The Gram Panchayat had two tanks named Upar Bandh and Tala Bandh under its control for the purpose of pisciculture. In the early part of May, 1979 some fishermen including P.Ws. 5 and 7 belonging to Bolangir district and P.W. 8 belonging to a different village in Kalahandi district were engaged in catching fish from the aforesaid tanks. Fish from the two Panchayat tanks were caught. When the fishermen wanted to leave, they were asked to catch fish from one of the Panchayat tanks in the night of Monday (7-5-1979). Therefore, the fishermen including P.Ws. 5, 7 and 8 put the fishing nets inside the tank water and caught fishes. The appellants and some officials of the Gram a panchayat such as, the Gram Panchayat Extension Officer were present at that time. When the fish were caught, it was about 9 p.m. The biggest catch was sent to the local liquor vender through appellant Rajkishore for barter who brought a big jar of liquor which was consumed by the appellants and some others. Deceased Han Nayak has been engaged by the appellants on wages for the fishing operation. He happened to be present. After the officers of the Gram Panchayat left the place, the fishermen engaged in the fishing operation demanded their wages so as to leave the place. At that time deceased Han Nayak also demanded his wages which it seems were in arrears. Appellant Banamali told him to make such demand later, but deceased Han Nayak insisted and abused appellant Banamali in obscene and insulting language. Being enraged, appellant Banamali directed appellant Rajkishore to assault the deceased. Accordingly appellant Rajkishore pushed the deceased by his neck, as a result of which the latter fell down on the ground on the edge of the water of the tank. After he fell down, appellant Banamali assaulted him by kicks and fist blows. Appellant Mukteswar also assaulted the deceased by means of a stick. The fishermen including P. Ws. 5, 7 and 9 who were present saw the above incident and asked for wages to be paid. When they were threatened by appellant Banamali they left the village. Next morning they came across a Constable who intimated them that a man had died and so they came to Thuamul Rampur Police Station and learnt about the death of the deceased. In the meanwhile P.W. 1, the wife of the deceased having found that her husband who had left on Monday night on being called by appellant Rajkishore did not return home, went in search of him and noticed that his dead body was floating on the water of the Panchayat tank. She lodged FIR. (Ext. 9) at the police station and investigation commenced. The dead body of the deceased was sent for post mortem examination to P.W. 6 who submitted the post mortem report (Ext. 7). After close of investigation charge-sheet was submitted against the appellants for having committed an offence under section 302/34, I.P.C.

(3.) The appellants defence was a complete denial of their complicity in the alleged occurrence. They stoutly denied for having assaulted the deceased resulting in his murder.