SURU MAHAR AND ORS. Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS criminal appeal is directed against the judgment and order of conviction dated 23.12.1993 passed by Learned Addl. Sessions Judge, Bolangir in S.C. Case No. 59/21 of 1993 convicting all the Appellants Under Section 302, Indian Penal Code and sentencing them to undergo imprisonment for life, further sentencing to each of them to undergo R.I. for a period of six months under each count Under Section s. 148 & 323, Indian Penal Code and S.I. for 10 days Under Section 341, Indian Penal Code directing that all the sentences shall run concurrently. The Appellants in this appeal challenge the aforesaid conviction and the sentences passed by the Court below.

(2.) THE prosecution case in brief is that on 8.1.1993 at about 2.30 P.M. while the informant Kartika Behera was coming to the village danda after taking his meals, he saw that the accused persons being armed with Lathies, tangia, merraha and tabli are chasing his maternal uncle, Bilam Budek to assault. When he rushed to them to come to his rescue, the accused Deba Mahar gave a Merrha blow on his back. While he fell down on the ground on receipt of the said blow, other accused persons also assaulted him. He raised hue and cry and on hearing so, his father Abhi Behera and brothers Sartika and Biranchi ran to the place of occurrence and as soon as they arrived at the place, the accused persons also assaulted them. Accused Bhuban gave a Tabli bow to the back of Biranchi as a result of which he sustained injury and fell down. Thereafter, the accused persons hurriedly ran away. The neighbours who assembled there shifted the injured to Chudapali hospital by a bullock cart and thereafter he was shifted to Bolangir hospital. While coming to Bolangir on the way at Sadar Police Station the informant gave an oral report to P.W. 11 - OIC of Sadar Police Station, who reduced the same into writing. P.W. 1 informant subscribed his signature to the FIR (Ext. 1) at 4.40 P.M. on the same day. The OIC (P.W. 11) registered the complaint as Sadar P.S. Crime No. 8/93 under Sections 147/148/241/294/326/325/323/302 and 149 of Indian Penal Code against the accused persons. Then he examined the informant and his brother Sartika and father Abhi and sent the injured to the hospital for treatment where Biranchi breathed his last. On getting this information the OIC sent a constable to guard the dead body and he himself came to hospital and examined some witnesses and then proceeded to the place of occurrence. He visited the spot prepared rough sketch, examined some witnesses and arrested the accused persons. During investigation he seized the Tabli, axe, lathi in presence of witnesses. He conducted inquest on the dead body of deceased on 9.1.1993 at 7.00 a.m. in presence of the witnesses and prepared inquest report. and thereafter he sent the dead body with requisition for conducting autopsy. On the same day at 11.45 a.m. the wearing apparels of the deceased were seized and on disclosure statement of accused Tanka, a tabli was recovered and seized. The OIC (P.W. 11) sent the seized weapons to the doctor for examination and opinion. On 25.02.93 he gave requisition to the SDJM, Bolangir to send the material objects for chemical examination. On completion of the investigation, the police submitted charge sheet against the accused persons in the Court of SDJM, Bolangir, who in his turn, committed the case to the Court of sessions for trial.

(3.) ONCE it is held that the deceased met a homicidal death, the next question arises as to who are responsible for causing his death. Prosecution in this regard has relied upon the evidence of P. Ws. 1,3,4,6,7 and 10. Amongst them, P. Ws. 1,7 and 10 are injured, who have been examined by the Medical Officer, District Headquarters Hospital, Bolangir on the very day of occurrence. Therefore, the evidence of these witnesses carries great importance. P.W. 1, the brother of the deceased, who is also the informant in this case, has deposed that on 8.1.1993, at about 2 P.M. while he was sitting on his Verandah saw the accused person chasing Bilam Budek (P.W. 8). He immediately rushed to the spot and tried to rescue P.W. 8. At that time, he was assaulted by the accused Deba by means of a Geda (Lathi) on his left shoulder., Subsequently, other witnesses, namely; Kartika (P.W. 1), Sartika (P.W. 7), Biranchi, the deceased, arrived there. The accused persons assaulted them; as a result, some of them received injuries. Accused Suru instigated the other accused persons to kill them. At this, the accused Bhuban dealt a Tabli blow on the back side of the head of deceased Biranchi. As a result, there was profuse bleeding and he fell down. The deceased was first removed to Chudapali P.H.C. and subsequently to the Headquarters Hospital where he was declared dead. The evidence of P.W. 7 and 10, who had come to the spot and seen the assault on P.W. 8, are consistent with the evidence of P.W. 1. Both the witnesses to the occurrence have deposed that on being instigated Bhuban gave a blow by means of tabli (M.O.I) on the head of the deceased which caused profuse bleeding injury. Though the witnesses were grilled by the defence during the cross -examination, but their evidence could not be discounted so as to impeach their credibility. Since all the three witnesses have received injuries, their presence at the scene of occurrence and seeing the assault on the deceased cannot be disbelieved. Further, P.W. 8, who was first assaulted by the accused persons categorically, deposed that all the above witnesses reached the spot to rescue him. Besides the above, there are also other witnesses who have seen the assault. P. Ws. 3 and 6 have also narrated the details of the incident starting from assault on P.W. 8 to the deceased. They are not only the co -villagers, but also they were having their houses close to the spot. All of them have unequivocally deposed that the accused Bhuban dealt a blow on the deceased as a consequence he received bleeding injuries. Combined reading of the evidence of all the witnesses P. Ws. 1, 3, 4, 6, 7 and 10 it can safely be concluded that the accused Bhuban is the author of the crime and the deceased died due to the assault.