GULA @ DIBYA LOCHAN NATH Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE appellants call in question the judgment and order dated 24.8.1993 passed by the Sessions Judge, Sambalpur in S.T. Case No.213 of 1992 convicting the accused -appellants for the offence punishable under Sections 302/307 both read with Section 34 of I.P.C. and sentencing each of them to undergo imprisonment for life for the offence under Section 302/34 of I.P.C. and not passing separate sentence for the offence under Section 307/34 of I.P.C.

(2.) SUCCINCTLY stated, case of the prosecution is that on 24.8.1992 at about 6.00 P.M. there was a hot discussion between accused Santosh Nath and deceased Bhaktaram Nath near a tamarind tree in their village, Mundhepali, relating to damage of ridge of the paddy field belonging to the latter. During this time accused Gula @ Dibya Lochan Nath, the father of the accused Santosh being armed with Lathi rushed to the spot and inflicted a blow with it on the head of the deceased causing bleeding injury. Sometime thereafter, accused Santosh Nath, Surya Nath and Gula Nath assaulted the deceased near their house with axe, knife and Lathi respectively causing severe injuries. Hearing hullah, raised by the deceased, when his wife Maithili Nath came to his rescue all the accused persons assaulted her to do away with her life, but she could be saved providentially. Immediately thereafter, while P.W.1 (son of the deceased) and the injured Maithili (P.W.2) with the assistance of Kalpeswar Majhi and Kumuda Kisan were shifting the deceased in a tempo to Sambalpur District Headquarters Hospital, on the way near Sindurpanka he succumbed to the injuries. On 25.8.1992 during morning hour, the S.I. of Police Gaurpalli Outpost (P.W.7) on hearing a rumour about the assault on Bhaktaram Nath and his wife and their shifting to Sambalpur District Headquarters Hospital and the death of injured Bhaktaram Nath on the way, entered the same in the Station Diary and then proceeded to Sambalpur District Headquarters Hospital where he reached at 10.00 A.M., There, P.W.1 orally reported the incident before him, which he reduced into writing vide Ext.1/1. As the allegations contained in the F.I.R. revealed a cognizable case, P.W.7 sent the F.I.R. to the O.I.C. of Jamankira Police Station for registration and accordingly the case was registered. P.W.7 held inquest over the dead body, prepared the inquest report, sent the dead body to V.S.S. Medical College, Burla for autopsy, sent the injured, Maithili Nath (P.W.2) to hospital for examination, arrested the accused persons and forwarded them to Court, seized some material objects including the weapons of offence, examined the witnesses and after completion of investigation submitted charge sheet against all the accused persons. The case having been committed to the Court of Session, accused persons stood trial under Sections 302/307, both read with Section 34 of I.P.C. The plea of the accused persons is that on the evening of the date of alleged occurrence the deceased and his wife (P.W.2) trespassed into their house in drunken state and while the deceased was strangulating the child of accused Surya, the latter tried to separate him and in the process the deceased and P.W.2 fell down on the door and thereafter left their house. They denied to have committed murder of the deceased or assaulted P.W.2.

(3.) TO bring home the charges levelled against the accused persons, prosecution mainly relied on the evidence of P.Ws. 1, 2, 5 and the doctor (P.W.4). It would be profitable to deal with the order of conviction under Section 302/34 of I.P.C. first.