BHAGABAN DAS Vs. STATE OF ORISSA

JUDGEMENT

(1.) The appellant has assailed the judgment of the learned Addl. Sessions Judge, Balasore, recorded in S.T. No. 12/81 of 1991 holding the appellant guilty of charge under Section 326 of IPC simpliciter and sentencing him to undergo punishment of 6 years rigorous imprisonment on that count.

(2.) According to prosecution case, the appellant along with others formed an unlawful assembly armed with deadly weapons in the village- Kundisasan on 01.01990 at 3 p.m. and caused death of Babaji Das (hereinafter referred to as "the deceased") by inflicting simple and grievous injuries. According to prosecution, the offences under Sections 148, 302 read with Section 149 of IPC were committed by the appellant and his associates. The defence of the appellant and his associates was denial of the occurrence in the manner as alleged by the prosecution. According to the accused persons, the prosecution case was false. They examined defence witnesses and also proved documentary evidence. The defence witnesses were examined to support of the defence that prosecution party was aggressor and the appellant was assaulted by them. The injury sustained by the appellant was proved by Dr. Srikanta Mohanty (D.W.1) as Ext. G. The trial court while acquitting the appellant and his associates of the charge under Sections 148, 149 and Section 302 of IPC, returned the judgment of conviction and order of sentence against the appellant, as stated earlier.

(3.) Analysing the evidence brought on record, the learned counsel for the appellant contended that the prosecution having failed to explain the multiple injuries sustained by the appellant where the genesis and origin of the occurrence shrouded in deep mystery erroneously held the appellant guilty under Section 326 of IPC. The learned counsel also contended that once the learned trial court observed that the appellant while wielding the stick in course of that occurrence where he sustained multiple injuries accidentally came in contact with the head of the deceased, but unfortunately held him guilty under Section 326 of IPC for voluntarily having caused grievous hurt which is neither sustained in fact nor in law.