BASU BHAINSA Vs. STATE OF ORISSA

JUDGEMENT

(1.) Heard argument from the parties and the Criminal Appeal is disposed of in the following manner.

(2.) Five accused persons (including the present Appellant) faced the trial in Sessions Case No. 51 of 1996 in the Court of Additional Sessions Judge, Jeypore. Charge under Ss. 148/302/149, I.P.C. was framed and at the end of the trial only accused -Appellant Basu Bhainsa was found guilty of the offence of murder of deceased Sub ash Bhainsa and accordingly he was sentenced to undergo imprisonment for life. Appellant challenged the order of conviction on various grounds, but at the time of hearing of the appeal argues on the discrepancies said to be existing in the evidence available in the lower Court's record. Before we deal with that aspect, it is appropriate to note the facts involved in the case.

(3.) According to the prosecution, on 01.11.1995 in village Nilagada under Jeypore Sadar Police Station the villagers were enjoying 'Diwali' celebrations. At about 8.00 p.m. accused -Appellant Basu Bhainsa without any rhyme or reason, being armed with a knife attacked and injured the deceased by inflicting injuries on his belly, chest, hands and legs. P.W.11, Burunda Bhainsa, the elder brother of the deceased together with Budu Harijan, P.W.15 and some others shifted the deceased to the Jeypore Sub -divisional Hospital. While proceeding to the hospital on a rickshaw, on being asked by P.W.11, the deceased told that it was the accused -Appellant who dealt the stab blows by the use of a knife. After leaving the deceased in the hospital, at about 9.30 p.m. P.W.11 went to the police station and lodged F.I.R., Ext.12. On receipt of that F.I.R. the O.I.C. of Jeypore Sadar P.S. registered a P.S. Case and took up the investigation. In course of the investigation, he reached the hospital and recorded the statement of the deceased and that statement has been marked Ext.13. After being admitted to the hospital, ultimately on 12.11.1995 the deceased succumbed to the injuries. Therefore, the police case which was initially registered for the offence under Sec. 307, I.P.C. was treated as a case for the offence punishable under Sec. 302, I.P.C. The further investigation was accordingly taken up and ultimately charge -sheet was filed against the Appellant. In the meantime mother of the deceased filed a complaint case registered as I.C.C. No. 90 of 1995, implicating not only the Appellant but also the other accused persons (who faced the trial and were acquitted), describing herself to be an eye -witness to the occurrence. After submission of the charge -sheet against the Appellant, that complaint was treated as protest petition and enquiry under Sec. 202, Code of Criminal Procedure was undertaken by the Learned Magistrate. On completion of the inquiry, Learned S.D.J.M. found a prima facie case against the co -accused persons and accordingly by a single commitment order he committed the case to the Court of Sessions forwarding the Appellant and other co -accused persons for trial. On the basis of the commitment order, the charge -sheet and the order of cognizance, Learned Additional Sessions Judge framed charge for the offences punishable under Ss. 148/302/149, I.P.C. against all the accused persons. All the accused persons denied to the charge and claimed for trial.