NITYANANDA PASAYAT Vs. STATE

JUDGEMENT

(1.) Appellant Nityananda Pasayat alias Beda has been convicted under S.302, Indian Penal Code, and has been sentenced to undergo rigorous imprisonment for life for having intentionally caused the death of deceased Banabasa Barik by the learned Additional Sessions Judge, Sambalpur. Along with him four other accused persons stood charged under Ss.148, 149, 323, 324 and 302, Indian Penal Code. Accused Kulamani alias Kuladhar, Krushna, Debarchan and Satyananda were separately charged under S.323, Indian Penal Code. The learned Trial Judge convicted the accused-appellant only under S.302, Indian Penal Code, and so far as the other accused persons are concerned, they were convicted under S.323, Indian Penal Code, and were sentenced to pay a fine of Rs. 150/- each, in default to undergo rigorous imprisonment for fifteen days each. All other charges against the other accused persons as well as the appellant were held not to have been established. The other accused persons have not preferred any appeal against their conviction under S.323, Indian Penal Code, and hence in this appeal, we are concerned with the conviction of the appellant under S.302, Indian Penal Code.

(2.) Prosecution case, briefly stated, is that accused Nityananda alias Beda and deceased Banabasa were adjacent neighbours. On 23-12-1982, which was a Thursday, a portion of the roof of the house of Beda which had projected towards the courtyard of deceased Banabasa had fallen down on the courtyard of Banabasa. Deceased Banabasa accordingly informed the said fact to accused Beda. Accused Beda, however, alleged that it was Banabasa who had broken the projected portion of the roof and a quarrel ensued between them. Three days thereafter, on one Sunday, accused Beda and Kuladhar repaired the broken roof. On Monday morning at 6.30 a.m. deceased Banabasa went to the place of occurrence and told Kuladhar as to why he had projected the roof of the house towards his courtyard and on that account a quarrel ensued. In course of the said quarrel, accused Krushna arrived there and both Krushna and Kuladhar caught-hold of both the hands of deceased Banabasa. Accused Satyananda and one Daktar came armed with sticks and began assaulting the deceased. At that point of time, accused Beda, the appellant in this appeal, came from his house with an axe in his hand and dealt one blow on the head of the deceased from his back with the sharp side of the weapon. Receiving the said axe blow, the deceased fell down with profuse bleeding. Seeing such bleeding, Upendra, the son of the deceased (PW 10), came running. He was also assaulted by accused Satyananda and Daktar as well as by accused Beda. He also fell down on the ground. Thereafter Gainu (PW 11) and Sankar (PW 5), the brother and the son of the deceased Banabasa respectively, came and carried the deceased to his house and from there to the police station. PW 10 also came to the police station in injured condition and gave a report which was treated as F.I.R. The deceased was seriously injured at that point of time and was sent to the hospital for treatment and while under treatment he expired in the hospital. Pursuant to the F.I.R. (Ext. 12) given by PW 10 the Officer-in-charge had registered a P.S. Case under different Sections and directed PW 12 to take up investigation. PW 12 was the A.S.I. of Police attached to Bargarh P.S. and had taken up the investigation, made some seizure and had also examined some witnesses. He received information from the Sub-Divisional Medical Officer of Bargarh that injured Banabasa died in the hospital. He then went to the hospital, held inquest over the dead body and sent the dead body for post-mortem examination. At Bargarh he had also seized the bed-head ticket (Ext. 16). He had also made a query from the Sub-Divisional Medical Officer, Bargarh, as to whether the injuries received could be caused by the axe which had been seized. The seized materials were also sent to the Forensic Laboratory for chemical examination and serological tests. On completion of investigation, he submitted the charge-sheet. Accused Kulamani had also lodged an F.I.R. which was registered as Bargarh P.S. Case No. 330 of 1982 on the same day at about the same time and the said case was treated as a counter case to the present case and it is admitted that both the cases arose out of the same occurrence at the same place and out of the same dispute. On being committed, the accused persons stood their trial before the learned Additional Sessions Judge.

(3.) The defence plea is that the deceased and his brother Gainu with their sons being armed with weapons attacked the accused persons. Sankar, son of the deceased, dealt an axe blow on Kulamani and Satyananda. It is only thereafter accused Beda snatched away the axe from the hand of Sankar and waved it in order to protect them. While waving, the axe hit the deceased and injured him. It was also the further plea of the defence that they were assaulted by Banabasa, Gainu and their sons and even Aparsini, a daughter of Kulamani, was also injured being attacked by the deceased and his party-men.