SUDARSAN KONHAR AND ORS. Vs. STATE OF ORISSA

JUDGEMENT

(1.) APPELLANTS are the accused in S.T. No. 25 of 2000 of the Court of the Additional Sessions Judge, Boudh arising out of Harabhanga P.S. Case No. 39 of 1999 and G.R. Case No. 385 of 1999 of the Court of the S.D.J.M., Boudh. The impugned judgment was delivered on 15.02.2001 and the present accused -appellants were found guilty for the offence under Section 302/34 of the Indian Penal Code. They were accordingly convicted and sentenced to imprisonment for life. The co -accused i.e. 5th accused, Chakradhar Mallick has been faced the same trial under Section 302/34 of the Indian Penal Code and was however, granted an order of acquittal on the ground of lack of evidence against him. That judgment and order of conviction is under challenge in this appeal by the convicted accused persons.

(2.) IT reveals from the lower court records that the prosecution case is that Kishore Chandra Behera, the deceased was having land dispute with the accused persons. On 05.09.1999 the deceased went to village Gochhabadi to purchase rice. At about 8 A.M. while he was returning after purchasing rice, as alleged by the prosecution, the accused persons attacked and assaulted him. According to the prosecution, at that time accused Sudarsan and Duryodhan were armed with lathies, accused Bhima was having a knife and accused Bhagaban was having a falsia i.e. an axe. It is further alleged by the prosecution that in course of assault, accused Bhagaban inflicted injuries on the right hand, left leg and head of the deceased, accused Bhima inflicted injuries on the right eye below the eyelid and accused Sudarsan and accused Duryodhan dealt lathi blows. The axe was being differently named like falsia, tabla and farsa, but that indicates to only one weapon i.e. an axe. When the occurrence of assault took place there was no eyewitness around but hearing the hullah, P.W. 2 Ranjita Behera (daughter of the deceased) and P.W. 3 Urmila Behera (wife of the deceased) rushed to the spot and found the accused persons being so armed and on seeing them (witnesses) they ran away from the spot. P.Ws. 2 and 3 went and took care of the deceased and on their asking the deceased, who was in sense, narrated about the assault on him by the aforesaid accused persons in the above indicated manner and also asked them to take him to hospital. The other co -villagers arrived there and with their help the deceased was first taken to the house and then from there he was carried towards hospital. P.W. 1, Sitaram Behera is the brother of the P.W. 3. On getting information from one Binod Sahoo about the occurrence of assault by the accused persons in the above indicated manner he rushed to the house of the deceased. There he was informed by P.W. 3 that the deceased in injured condition was being carried to the hospital i.e. Banigochha Primary Health Centre. He followed and could reach them near village Gandapaju. There he found the deceased being in sense and was capable to speak in feeble voice. On being asked by P.W. l the deceased narrated about the assault on him by the aforesaid four accused persons in the above indicated manner. Before they could reach the hospital, the deceased succumbed to the injuries and therefore, on the advice of the villagers, who were carrying the deceased in injured condition, he (P.W. 1) went and reported the matter at Harabhanga Police Station. By the time, he reached the police station, only one Constable was present and, therefore, he took the help of one Khadiratna, who scribed the report for him. After arrival of the Police, Officer, P.W. 7, the F.I.R. Ext.5 was accepted and P.S. Case was registered. Later on, Officer -in -Charge of the Police Station (P.W. 8) on coming to the Police Station, took charge of the investigation. P.W. 5 is the Doctor, who conducted post -mortem examination on the dead body of the deceased and proved the postmortem report Ext. 2. Ext.1 is the inquest report Exts. 3, 4, 6, 7 and 9 to 13 are different seizure lists relating to seizure of incriminating materials. Ext. 15 is the forwarding letter of material objects to S.F.S.L. and Ext. 16 is the report from the S.F.S.L. Amongst the seized materials the axe was marked as M.O.I and one Sisu Lathi (Lathi made of Rose wood) was marked as M.O.II.

(3.) LEARNED Additional Sessions Judge, relying on the evidence of P.W. 5 recorded the finding that the deceased suffered homicidal death. In that respect, he did not give any credence to the opinion of P.W. 5 given in cross -examination that the deceased could have suffered the injuries because of fall from the bicycle. He found the defence plea totally devoid of merit to make out such a case.