NAKULA MALLIK Vs. STATE OF ORISSA

JUDGEMENT

(1.) The appellants, who are three out of eight charge-sheeted accused persons, faced trial for the offences under Sections 148, 448, 354, 506, 324/ 302, IPC read with Section 149, IPC in the Court of learned Addl. Sessions Judge, Khurda in S.T. No. 23/127 of 1997 as the other charge-sheeted accused persons, remained absconding and were not available for trial. Trial Court taking note of the evidence available on record found the appellants guilty of the offence under Sections 302 and 148, IPC and sentenced each of them to undergo imprisonment for life under Section 302, IPC and in view of such sentence, did not award any separate sentence for the offence under Section 148, IPC. In addition to that, learned Addl. Sessions Judge found the appellants Nakul and Sahadev guilty of the offence under Section 324, IPC and sentenced them to undergo rigorous imprisonment for one year each with specific direction that the sentence awarded would run concurrently.

(2.) According to the case projected by the prosecution a tamarind tree was the cause of dispute. On 20-2-1997 when the deceased Anitha Mallick and his two brothers, Dukhishyam Mallick (P.W.7) and Chakradhar Mallick (P.W. 1) were absent from the house, the charge-sheeted accused persons formed an unlawful assembly came and cut some branches of the tamarind tree. When the ladies of the informant household raised protest, they were molested and humiliated by accused persons. The deceased, P.Ws. 1 and 7 returned to the house and on learning about the highhanded behaviour of the accused persons, they went and confronted the accused persons questioning them as to why they cut the branches of the tamarind tree and misbehaved with the ladies. As a matter of retaliation, all the accused persons variously armed attacked the informant party. In the process, accused Duryodhan (appellant No. 3) dealt a blow on the backside of the neck of the deceased by means of a sized wood. On receipt of the blow, the deceased tried to escape, but the other accused persons stopped him and Duryodhan gave the second blow on the head of the deceased. The third blow given by accused Duryodhan some how hit on the ground resulting in breakage of the sized wood into two pieces. When P.W. 1 came for rescue of the deceased, he was assaulted by accused Nakula. Similarly, when P.W. 7 came for the rescue of the deceased, he was assaulted by accused Sahadev. After the incident, the deceased was admitted as an indoor patient and the matter was reported to Khurda Police Station, where a case under Section 307, IPC was registered. On the requisition by the police, the injured persons were examined and injury reports were submitted. On 22-2-1997 at about noon time the deceased succumbed to the injuries and accordingly the case was converted to a case of murder and further investigation was taken up accordingly.

(3.) Charge was framed on six heads as indicated in the initial paragraph. To substantiate the charges, prosecution examined as many as 12 witnesses and relied on various documents, marked Exts. 1 to 22. Among the witnesses, P.Ws. 1, 2 and 6 to 9 have been projected as eye-witnesses to the occurrence. P.W. 3 is the doctor who granted the initial treatment and the injury certificate to the deceased as well as to P.Ws. 1 and 7, P.W. 11 is the doctor, who conducted autopsy on the dead body of the deceased and P.W. 10 is the Investigating Officer. Ext. 17 is the FIR Ext. 21 is the post mortem report, whereas Exts. 6, 7 and 8 are the injury certificates of the deceased, P.W. 7 and P.W. 1 respectively. Exts. 9 to 11 are the opinion reports of the doctor (P.W. 3) on different queries made by the I.O. The alleged Katari, which was used to cause injury on P.W. 1 was marked as M.O. II and 4 Nos. of lathies were marked as M.O.III, the batton which was allegedly used to cause injury to the deceased was marked as M.O. IV.