MAGATA PANDA AND ANR. Vs. STATE

JUDGEMENT

(1.) THE Appellant Magata Panda and his son Suryanarayan Panda, who figures as the other Appellant, have been convicted under Section 302 read with Section 34 of the Indian Penal Code ('the Code' for short) and sentenced to undergo imprisonment for life. The Appellant Suryanarayan has also been convicted under Section 326 of the Code and sentenced to undergo rigorous imprisonment for a period of ten years. The Court of Session has accepted the case of the prosecution that on April 24, 1981, after Ashok Kumar Choudhury (P.W. 6) came to the mango tope and saw some children related to the Appellants collecting mangoes and challenged them and in turn, was challenged by the children for which he gave a push to Paramananda alias Babu Panda, one of the sons of the Appellant Magata, the two Appellants, on being informed about this incident by Jada Panda, a nephew of the Appellant Magata, came armed to the spot from two different directions, the Appellant Magata being armed with a gun and the other Appellant Suryanarayan being armed with a Gupti stick and in furtherance of their common intention, killed Debahari (hereinafter described as the 'deceased'), who had come to the spot on hearing about the incident, by gun shot which had been fired by the Appellant Magata and the Appellant Suryanarayan caused grievous hurt to Ashok (P.W. 6), the son of the deceased by dealing blows with the sword inside the stick. The learned trial Judge has rejected the case of the defence that the Appellant Magata was no where near the scene and that when his son Suryanarayan came running home with cut injuries on his person and he (Appellant) had been enquiring from him as to what had happened, villagers came and closed the door and the case of the other Appellant Suryanarayan that when he went to the spot and challenged P.W. 6, the latter dealt a blow on his right wrist by means of a Gupti and then the villagers came and one of them fired a gun whereafter he (Appellant) pushed aside P.W. 6 and ran to his village out of fear for his life and informed the other Appellant as to what had happened. Investigation in this case had been taken up by the police authorities on the basis of the first information report (Ext. 1) lodged by P.W. 1 as P.W. 6 was not in a position to go and the report at the police station in view of the injuries on the person and on its completion, a charge -sheet had been placed. In the course of investigation, a gun (M.O. V) had been recovered from the possession of the Appellant Magata while he was returning me from the river side and M.A. III, a sword and its cover (M.O. IV) had been recovered and seized.

(2.) TO bring home the charges, the prosecution had examined fifteen witnesses whereas in support of their, defence, the appellate had examined one witness. On a consideration of the evidence, the learned trial Judge has accepted the case of the prosecution and convicted the Appellant as stated above.

(3.) MRS . Padhi has urged that the evidence of the four witnesses to the occurrence, namely, P.Ws. 2, 3, 5 and 6 was not worthy of credence and in view of the Ballistic Expert's report that the injuries sustained by the deceased could not have been caused by firing from the gun (M.O. V) recovered from the possession of the Appellant Magata, the learned trial Judge went wrong in accepting the case of the prosecution. It could not be said from the evidence, as urged by Mrs. Padhi, that the two Appellants had shared the common intention to commit the murder of the deceased or that the Appellant Suryanarayan had caused grievous hurt to P.W. 6. According to Mrs. Padhi, the, injuries on the person of the Appellant Suryanarayan have not been explained by the prosecution which has not presented a true story as to how the occurrence started and as to what actually happened. The learned Standing Counsel has submitted and very fairly so, that the evidence would not lead 'one to a reasonable conclusion that both the Appellant had shared the common intention to commit the murder of the deceased. He has, however, submitted that the Appellant Magata can be convicted by this Court under Section 302 of the Code as he had committed the murder and that the other Appellant has properly been convicted under Section 326 of the Code. He has submitted that the prosecution has presented a true and complete picture about the e occurrence and has not suppressed any part of it.