K. LACHHEYA PATRA Vs. STATE OF ORISSA

JUDGEMENT

(1.) Both the appeals arise out of judgment and order of conviction and sentence passed by the learned Second Additional Sessions Judge, Berhampur in Sessions Case No. 37 of 1993 (S.C. 255/93 G.D.C.). The appellants in Criminal Appeal No. 261 of 1994 have been convicted for commission of offence under Sections 302/34 of the Indian Penal Code (in short 'I.P.C.') and sentenced to imprisonment for life. They have also been convicted for commission of offence under Section 148 IPC and sentenced to imprisonment for two years. All the appellants in Criminal Appeal No. 290 of 1996 have been convicted for commission of offence under Section 148 of the Indian Penal Code and each of them has been sentenced to imprisonment for two years.

(2.) As it appears from the record, twenty five accused persons faced trial being charged for commission of offences under Sections 148, 302/149, 326/149 and 379/149 IPC for being members of an unlawful assembly armed with deadly weapons and causing murder, grievous hurt and theft in furtherance of the common object of such assembly. The case of the prosecution is that the village in which both the deceased and accused persons were staying was divided into two rival camps. The deceased was leader of one faction whereas the accused persons belonged to other faction. There used to be regular quarrels between the two groups. On 31.8.1992, accused A. Gurunath (Appellant in Criminal Appeal No. 290 of 1994) created some disturbance in the Pooja Pendal of Lord Ganesh and P.W.2, the son of the deceased cautioned him not to do so. Relating to the said incident, all the accused persons being variously armed shouted using abusive language and incited slogans in the village. The deceased being a leading member of the village tried to subside the matter. A meeting was convened on 1.9.1992 and it was conducted in the premises of the village deity. It is alleged by the prosecution that on 1.9.1992 at 12.30 P.M. while the informant was present near his house, the accused persons being armed with deadly weapons like sword, spear, farsa and lathis reached there and the accused Gajendra (appellant in Criminal Appeal No. 290 of 1994) tied the neck of the informant with a napkin and the other accused persons surrounded him. The informant was dragged towards backyard of the appellant Gajendra but he managed to free himself and ran away from the spot. P.W.2, the brother of the informant, who requested the appellants to release P.W.1 was assaulted by means of a lathi by the accused Purusottam which hit on his legs. Out of fear, P.W.2 ran away from the spot. Thereafter, all the accused persons indiscriminately pelted stones at the roof of the house of the deceased and it is alleged that the accused Krishnama lifted a tape-recorder from the house of one Satyama. When they saw the deceased passing through that street, all the accused persons surrounded him and the appellant Gajendra instigated the accused persons to assault the deceased. It is alleged that appellant Gajendra assaulted the deceased by means of a sword, appellant Purusottam assaulted the deceased by means of a Farsa and appellant Gurunath assaulted the deceased by means of a spear whereas rest of the accused persons assaulted the deceased by means of lathis and as a result such assault, the deceased fell down unconscious and ultimately succumbed to the injuries within few minutes. On receipt of information about the said incident, police arrived at the spot and information was lodged by the informant, which was reduced to writing and a case was registered for commission of the aforesaid offences. On completion of investigation, charge-sheet was also filed for commission of the said offences.

(3.) Prosecution examined fifteen witnesses to support the charges and out of fifteen witnesses, P.Ws. 1 and 2 are the sons of deceased and P.W.1 is the informant. P.Ws. 3 to 6 were examined as eye-witnesses to the occurrence, out of whom, P.W.3 sustained injuries in course of incident. P.Ws. 8 and 9 are the doctors, who examined the injured persons namely, P.Ws. 3 and 2 respectively. P.W.11 is the doctor, who conducted post mortem examination. P.W.7 is a witness to the seizure and also claims to have seen the accused persons giving recovery of the weapons of offence while in police custody. P.W.10 is a Police Constable, who accompanied the dead body of the deceased for post mortem examination. No witness was examined on behalf of defence. The trial Court accepting the evidence of eye-witnesses found the appellants in both the appeals guilty for commission of offences as stated earlier and convicted them thereunder. Rest of the accused persons were acquitted of the charges.