PAPPU ALIAS SUSANTA DAS Vs. STATE

JUDGEMENT

(1.) These two appeals are interlinked being directed against the judgment of learned Additional Sessions Judge, Berhampur convicting the present appellants (hereinafter referred to as the 'accused' by their respective names) for commission of offences punishable under S.302 read with S.34, and under S.307 read with S.34 of the Indian Penal Code, 1860 (in short, 'IPC'). Each one of them is sentenced to undergo R.I.for life for the first offence and for five years for the second offence.

(2.) In trying to save dignity and honour of his sister, a brother has lost his life and another sustained severe injury. This is the background of accusations which led to the trial and ultimate conviction. Essentially the facts are as follows : Bharati Moharana (P.W.1) is the sister of Narendra Moharana (hereinafter referred to as the 'deceased'). She at the relevant point of time was a student of Post Graduate Science course of Berhampur University. On 16-11-1990 she was coming to Kamapalli Chhaka to catch the University bus. While coming to the bus stop, she had to pass through the level crossing. At that time accused Braja Padhi was sitting near a betel shop and made obscene comments. She took exception to it and retorted, and then went to University. On returning home, she naratted the incident to her mother who advised her not to enter into exchange of words with the accused. On the next day i.e., on 17-11-1990 at about 10 a.m. while she was going to University, accused Brajamohan Padhi and five others accosted her near the railway level crossing. Braja Padhi asked her as to why she replied back to him on the previous day. When she questioned him as to why he had made obscene comments, Braja told that he would kick her. She saw the accused persons except Budhi Pradhan, there. They did not allow her to go to the University and while she was returning to her house, Braja told that he would be following her. She narrated the incident to her mother in her house, Bharati, her mother (P.W.2) and her elder sister came out of their house. Hardly had they gone few steps from the house, when they found Braja in the company of four others waiting near a water pipe, Braja abused them and told P.W.1 that he would rape her on the main road and none would come to her rescue. He abused them in very obscene language. At the intervention of one gentleman of the locality they went away. P.W.1 and her sister went to Nehru Nagar and informed the matter to P.W.6, who happened to be their cousin being their maternal uncle's son, and requested him to inform their elder brother Narendra, the deceased about the incident. Deceased had a betel shop in Rukmani Cinema Hall. Both P.W.6 and the deceased came to the house of Narendra, who took P.W.1 with them to identify the accused persons. When P.W.1 came along with them, she saw only accused Bhagaban near a betel shop. She identified Bhagaban to her brother. Being advised by her brother, the deceased, she proceeded towards her house. While coming near a turning, she looked back and found that 10 to 15 persons armed with different types of lethal weapons had surrounded her brother. Out of fear she went to her house and informed her mother that Harendra had been surrounded. While returning by a motor cycle, P.W.6 saw accused Braja and deceased quarrelling. Braja gave a fist blow on the right side cheek of deceased. P.W.6 went there and enquired about the matter. Braja abused him and asked others to assault him. Deceased asked P.W.6 to report the matter in the Police Station. While both of them were coming on their respective motor cycle, Braja gave a tangia blow to P.W.6, who out of fear started running being followed by the deceased towards railway station being chased by the accused persons. While crossing the railway track, P.W.6 stumbled down. The deceased tried to lift him, Braja pierced a tenta on the chest of the deceased. Thereafter other accused persons assaulted him with sword, tangia and tenta. When Pramod Choudhury (P.W.8) and Pramod Sahu (P.W.10) raised alarm, the accused persons fled away. Shortly thereafter, Sudan Pradhan (P.W.9) came there and arranged an auto rickshaw to remove the deceased and P.W.6 to hospital. On the way P.W.6 narrated the incident to P.W.9, and told him that Bapini Padhi (Braja) of Ram Nagar and others assaulted him and the deceased. On the way to hospital, the deceased breathed his last. On the basis of information received, Sudam (P.W.9) lodged the first information report. Investigation was undertaken, and on completion thereof charge sheet was placed against the appellants and Bhagaban, who has been acquitted by the learned Addl. Sessions Judge, Berhampur.

(3.) In order to establish its case, 12 witnesses were examined on behalf of the prosecution. Out of them P.Ws. 1, 6, 8 and 10 claimed to be eye-witnesses to the occurrence. Bharati (P.W.1) and her mother (P.W.2), according to the prosecution, had seen the first part of occurrence. P.W.3 is the Judicial Magistrate, first class, who conducted T.I.parade, P.Ws. 11 and 12 were two police officers who conducted investigation.