NANDA SETHI & OTHERS Vs. STATE OF ORISSA

JUDGEMENT

(1.) The appellants, namely, Nanda Sethi, Maya@Maheswar Gouda and Kalia Gouda are convicted under Sections 302/34 I. P. C. and sentenced to undergo imprisonment for life for commission of offence under Sections 302/34 I. P. C. , vide judgment and order dated 9th May, 2003 passed by the learned Sessions Judge, GanjamGajapati at Berhampur in Sessions Case No. 368 of 2001 (arising out of G. R. Case No. 961 of 2000 of the file of learned S. D. J. M. , Berhampur, corresponding to Berhampur Sadar P. S. Case No. 130 (6) dated 09. 10. 2000), which is under challenge in this appeal.

(2.) As would reveal from the FIR, the prosecution case in brief is that 10 to 12 days before the date of occurrence, i. e. , 09. 10. 2000, appellant-Nanda Sethi had attempted to rape the niece of one Budha Teli. At this, the victim warned Nanda Sethi (appellant No. 1) to disclose the fact before A. Fakira, who would wipe out his name (kill him). Due to the said incident, the appellants as well as one Sambhu Rao (not charge-sheeted) were searching for an occasion to kill A. Fakira (the deceased). On 09. 10. 2000 at about 9. 30 P. M. , A. Fakira (the brother of the informant A. Ganesh Dora-P. W. 1) along with others was playing Gudugudu Palli (gambling) at Bado Gurji Chowk of village Ankushpur. At that time, Nanda Sethi-appellant No. 1, Maheswar Gouda-appellant No. 2 and Kalia Gouda-appellant No. 3 along with said Sambhu Rao came from Bada Sahi side being armed with katis and swords. At that time, the informant was sitting on the Verandah of betel and grocery shop of one Nunu Dora. Suddenly, Nanda Sethi dealt a Kati blow on the head of A. Fakira. Thereafter, Sambhu, Maheswar and Kalia also dealt blows by means of swords indiscriminately on the head and neck of the deceased. Seeing the incident, the informant, while proceeding to the spot of occurrence, two brothers of Maheswar Gouda, namely, Panchu Gouda and Deba Gouda arrived there from the direction of Majhi Sahi being armed with Katis. P. W. 5-A. Dillesu Dora (an injured), a brother of A. Fakira who was present near the spot, tried to save his brother and in the process was also assaulted by the assailants present there, as a result of which he received injuries on his right shoulder and left leg. By the time, the informant reached at the spot, all six assailants fled away from the spot with the weapons of offence towards Majhi Sahi. Thereafter, the deceased was shifted to M. K. C. G. Medical College and Hospital, Berhampur in an auto rickshaw of Narsu Raulo accompanied by A. Dillesu Dora, where the Doctor declared A. Fakira to be brought dead. The incident was also witnessed by one Shyam Sundar Dora, Suduru Sahu and others, who were present near the spot. The matter was reported at Berhampur Sadar Police Station by P. W. 1 at about 11. 00 P. M.

(3.) Upon receiving the FIR (Ext. 1) the O. I. C. , Berhampur Sadar Police Station, P. W. 11, registered the P. S. Case No. 130 dated 09. 10. 2000 under Sections 302/34 I. P. C. As Ext. 1 disclosed cognizable offence, PW-11 took up investigation. In course of investigation, P. W. 11 deputed Havildar, Bharat Sethi (P. W. 10) and Constable, P. K. Sahu to M. K. C. G. Medical College and Hospital, Berhampur to guard the dead body of A. Fakira by issuing command certificate (Ext. 14). He also deputed A. S. I. , K. C. Satpathy and Havildar, B. B. Gouda to guard the spot of occurrence at Ankushpur. P. W. 11 also examined some witnesses on 10. 10. 2000 and visited the spot at about 7. 00 A. M. and prepared the spot map, Ext. 16. He seized blood stained earth and sample earth at the spot in presence of witnesses vide seizure list Ext. 2. He also conducted inquest over the dead body of the deceased at M. K. C. G. Medical College and Hospital, Berhampur and prepared inquest report (Ext. 3) in presence of witnesses and examined few witnesses. Thereafter, he dispatched the dead body for postmortem along with dead body challan Ext. 3/4. On that day, he issued injury requisition of A. Dillesu Dora (P. W. 5) for medical examination vide Ext. 17. The Doctor, who examined A. Dillesu Dora, gave the injury report on the carbon copy instead of the original of the requisition. On the very same day, i. e. , on 10. 10. 2000 at about 5. 00 P. M. , he seized wearing apparels of the deceased being produced by the escort team after the postmortem and prepared the seizure list (Ext. 15). On 11. 10. 2000, he received the opinion on injury in respect of injured-A. Dillesu Dora. On the same day, also he received the postmortem report from the Professor, FMT vide Ext. 12.