PRATAP ROUT Vs. STATE OF ORISSA

JUDGEMENT

(1.) The appellants four in number are in appeal against their convictions under Sections 302/34, I.P.C. During the trial the appellants along with 14 others were charged under Sections 148, 149/302 and 324/149 and the appellants Fakir Majhi, Saraju Rout and Madhu Rout were also charged under Sections 302/34 I.P.C. Besides Mayadhar Majhi, Bukshi Majhi & Sarat Rout were charged under 5. 323 I.P.C. whereas tile appellant Fakir Majhi and one Bhulu Majhi were charged under Section 324, I.P.C. Appellant Pratap Rout however was not charged under Sections 302/34, I.P.C. While all the other accused persons were acquitted, the present appellants have been convicted as above.

(2.) The case of the prosecution is that the deceased Bairagi Mallik was a Harijan belonging to the Kandara caste whereas the appellants belong to the higher castes. On the day of occurrence 28.7.1981 P.W. 8, a young girl belonging to the caste of the deceased while returning from the river after taking her bath was the object of certain comments by accused Ramesh Rout (since acquitted) which she reported to the inmates of her house and thereafter some of her relations, Kamina Mallik, Fagu Mallik and Lalit Mallik (all not examined) confronted Ramesh regarding the remarks as a result of which there was altercation and accused Ramesh threatened that he would see them. Thereafter at 12 noon the appellant Madhu Rout while returning to his house threatened Kamina Mallik abusingly that he shall set right that night the few families belonging to his sect. On the same night at about 9 P.M. while the informant (P.W. 1), P.W. 2 and PW5. 4 and 5 were sitting on the verandah of the Bhagabat Tungi of their street the deceased Bairagi went to the river for attending natures call and while he had proceeded about 7 to 8 cubits from the Bhagabat Tungi all the appellants and others came armed with deadly weapons like Lathis. Munas, Bhalis abusing the deceased and one Bharat Mallik. The deceased questioned such persons why they were abusing him and at that moment the appellant Madhu, who had a cycle chain with him all on a sudden gave a blow with the cycle chain to Bairagi and soon thereafter appellant Saraju gave a lathi blow on his head due to which Bairagi fell down. Appellant Fakir and Pratap gave Muna blows to the deceased and the other accused persons dealt Lathi blows, kicks and fist blows on him. The informant P.W. 1 on seeing the assault on Bairagi rushed to the occurrence. P.W. 4 tried to rescue the deceased from the assailants but he was given a knife blow by one Bhulu Majhi for which he received a cut injury and he also received fist blows and lathi blows from other persons including appellant Saraju. P.W. 1 had also received some injuries. P.W. 4 raised hulla, which attracted other people who saw the deceased lying almost dead. He was taken to the Hospital where the Medical Officer declared him to be dead. P.Ws. 1 and 4 also were treated for their injuries. While they were at the Hospital the police came there and P.W. 1 narrated the incident to the Officer-in-charge which was reduced to writing by P.W. 11, a constable at the direction of the Officer-in-charge. The report was read over and explained to P.W. 1 who signed the same and it was treated as the F.I.R. Ext. 1.

(3.) Mr. D. Nayak appearing for the appellants commented upon certain peculiar features of the case. In the trial Investigating Officer could not be examined since by the time of the trial, he was dead. It is the admitted case of the prosecution as disclosed in the evidence of P.W. 11 that the F.I.R. which was drawn up on 28.7.1981, was sent to the Court on 30.7.1981. On the F.I.R. which was scribed by the P.W. 11, the date 29th was changed to 28th Such change of the date though was specifically put to P.W. 11, he was not able to explain It. Ext. 6 is the seizure list. But however there also the date was changed from 29th to 28th Similarly the 161 statements of the eyewitnesses P.Ws. 1, 2, 4 and 5 were also antedated from 29th to 28th It was urged that such admitted manipulations raise great suspicion as regards the prosecution case and that the interspoliations were caused for some ulterior motive. The prosecution story as disclosed in the evidence is not the correct version and that hence the appellants should be acquitted.