TUNU Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioners in both the revisions assail the appellate judgment and order passed against them holding them guilty of commission of offences punishable under Ss.326 and 324 read with S.34 of the Indian Penal Code (for short, the 'Code') and sentencing each of them to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.500/- and in default of payment thereof, to undergo rigorous imprisonment for a further period of ten days passed under S.326 read with S.34 of the Code without any separate sentences having been passed under S.324 read with S.34 of the Code. The appellate Court has set aside the order of conviction and sentences passed against the petitioners by the trial Court holding them guilty of the charge under S.307 read with S.34 of the Code and sentencing each of them to undergo rigorous imprisonment for a period of five years and to pay a fine Rs. 2000/- and in default of payment thereof, to undergo rigorous imprisonment for a further period of six months.

(2.) The petitioners stood charged under S.307 read with S.34 of the Code with having attempted to commit the murder of Jugal Singh (P.W.14) in furtherance of their common intention at the Janhapada Canal bridge situated in the Attabir a Police Station area on June 16, 1981, at about 11.30 P.M. while P.W.14 had been driving his car with his Munshi Nidha Mahar (P.W.11) and two other co-villagers, namely, Malia Karan (P.W.8) who had lodged the first information report and Somanath Bhoi (P.W.9), seated in the vehicle. The allegations against the petitioners were that while P.W. 14 was on the Janhapada Canal bridge with two walls on either side, the petitioner Dhuma alias Saplister Kumbhar, who was said to be working then as a servant of the petitioner Tunu alias Tirthankar, blocked the way of P.W.14 by standing on the middle of the road with a bicycle. The petitioner Tunu alias Tirthankar by means of a knife and the petitioner Rajendra Majhi by means of a Bhujali dealt multiple blows on the person of P.W.14 inside the car whereafter they dragged him out and pressed him against the stoney wall of the canal. P.Ws.8, 9 and 11 had taken to their heels for their own safety after the petitioner Tunu dealt his first blow by means of a knife on the person of P.W.14. This was the case presented by the prosecution. On the basis of the first information report lodged by P.W.8, who had disowned the contents thereof at the trial and had not supported the case of the prosecution for which he was put leading questions under S.154 of the Evidence Act, investigation was taken up in course of which the petitioners were arrested and a Bhujali with suspected stains of blood (M.O. III) was seized from the house of the petitioner Rajendra and steps were taken for the treatment of P.W.14 first at Attabira hospital and then in the Medical College Hospital at Burla where P.W.14 was confined to his bed for twenty-two days. On the completion of investigation, a charge sheet was placed for prosecution of the petitioners for the commission of an offence under S.307 read with S.34 of the Code. The plea of the petitioners was one of denial and false implication.

(3.) The details of the case of the prosecution have been set out in the judgments of the Courts below and need not be restated in this revisional order. The trial Court held the charge to have been established and convicted and sentenced each of the petitioners as indicated above. The appellate Court took the view that the acts and conduct of the petitioners would not give an indication that they had the intention of committing the murder of P.W.14, but that they had voluntarily caused grievous hurt and simple hurt to P.W.14 in furtherance of their common intention and accordingly, while setting aside the order of conviction and sentence passed against each of the petitioners under S.307 read with S.34 of the Code, the petitioners were convicted and sentenced for commission of the offences punishable under Ss.326 and 324 read with S.34 of the Code, as already indicated.