GODABARISH MOHAPATRA Vs. STATE OF ORISSA

JUDGEMENT

(1.) Godabarish Mohapatra and Janardan Mohapatra (A-2 and A-3) appellants in Criminal Appeal No. 18 of 1991 and Hatim Mahammad and Chandrasekhar Mohapatra (A-1 and A-4) appellants in Criminal Appeal No. 19 of 1991 faced trial in Sessions Case No. 28 of 1989 in the court of the Sessions Judge Kalahandi Bhawanipatna. Hatim Mahammad. A-i stood charged under Section 302. Godabarish Mohapatra. A-2 stood charged under section 326. Janardan Mohapatra. A- 3 stood charged under section 307 Chandrasekhar Mohapatra. A-4 stood charged under sections 302,307 and 326 read with section 114 and all the accused persons also stood charged under section 302 read with section 34 of the Indian Penal Code. Learned Sessions Judge upon trial, convicted Hatim Mahammad. A-1 under section 302 I.P.C. and sentenced him to undergo imprisonment for life, Chandrasekhar Mohapatra A-4, under sections 302, 324 and 326 read with section 114, I.P.C. and sentenced him to undergo imprisonment for life, Janardan Mohapatra, A-3 under section 324, I.P.C. and sentenced to undergo rigorous imprisonment for three months and to pay a fine of Rs. 500/-, in default to undergo rigorous imprisonnient for a further period of one month, and Godabarish Mohapatra, A-2 under section 326, I.P.C. and sentenced to undergo rigorous imprisonment for three months and to pay a fine of Rs. 500/ -, in default to undergo rigorous imprisonment for a further period of one month. Aggrieved by their conviction and sentence, the accused persons have preferred separate appeals as aforesaid. The State has preferred Government Appeal No. 20 of 1991 challenging the order of acquittal of Godabarish Mohapatra, A-2 and Janardan Mohapatra, A-3 of the charge under section 302/34. I.P.C. and also Janardan, Mohapatra, A-3 of the offence under section 307, I.P.C. Though in the memorandum of appeal an the accused persons have been arraigned as respondents, but leave has been granted in so far as Godabarish Mohapatra, A-2 and Janardan Mohapatra, A-3 are concerned.

(2.) Prosecution case culled out during trial may briefly be stated thus: Godabarish Mohapatra. A-2 and Janardan Mohapatra, A-3 are real brothers, being sons of Chandrasekhar Mohapatra, A-4, Nishamani Mohapatra is the maternal grand-mother of Amarendra Mohapatra, informant W.W. 2). Husband of Nishamani Mohapatra and Chandrasekhar Mohapatra, A-4 are two brothers. P.W. 2's mother is the only daughter of Nishamani. Umesh, Chandra Mohapatra thereinafter referred to as the deceased) is the father of P.W. 2. He along with his Wife and children were looking after the properties of Nishamani. The accused persons were trying to dispossess the deceased from the lands of Nishamani and for that there were some litigations. The incident in the present case took place on 20-10-1988 at about 5 p.m. which was a Dushera days. On that day the deceased along with his sons Amarendra (P.W.2), Sangram (P.W. 11) and Debasis (P.W. 15) were returning from the house; of Nishamani after attending Nabarna festival. At this time Godabarish, A-2 hurled abusive words at them. Hearing this, they turned back and found the accused persons following them being armed with lethal weapons. Of them, Godabarish, A-2 was holding a Katari, Janardan, A-3 was holding a Tangla (axe) and Hatim Mahammad, A-i was holding a Gupti. Chandrasekhar, A4 was instigating the accused persons to kill the deceased and others. In the meanwhile, Janardall, A-3 gave an axe blow on the left hand of Sangram (P.W. 11) and Hatim Mahammad. A-1 pierced a Gupti on the right side chest of the deceased. Godabarish, A-2 and Janardan, A-3 simultaneously assaulted the deceased with weapons held by them. When P.W. 2 tried to intervene to rescue the deceased, Godabarish, A-2 aimed Katari blow at his head. To ward off the blow he raised his hand as a result, it struck on his right palm causing bleeding injury. P.W. 2 snatched away the TKatari from the hand of Godabarish. A-2.The latter shouted calling Hatim Mahammad A-2 to come to his rescue. Immediately Hatim Mahammad. A- 1 rushed there and having snatched away the TKatari from his hand Janardan. A-3 aimed a blow on his head. He however, stretched his head as a result the blow fell on his back. After assaulting the deceased and others as aforesaid all the accused persons went towards the house of Chandrasekhar. A-4. The deceased and the injured persons were brought to Bhawanipatna hospital. The doctor on examination of the deceased declared him dead. Amarendra (P.W. 2) and Sangram (P.W.ii) were treated as inpatients in the hospital. Officer-incharge of Bhawanipatna P.S. rushed to the Hospital to whom Amarendra (P.W.2) reported the incident. Thereupon F.I.R. Ext. 1 was drawn up under sections 302, 307, 326/34. I.P.C. and investigation commenced and on completion thereof charge-sheet was placed against all the four accused persons to stand their trial for various offences.

(3.) The accused pleaded not guilty to the charges and urged that they were falsely implicated. Besides. Hatim Mahammad A-1. while denying his involvement in the incident contended that during his absence police had visited his house on 17-11-1988 in connection with this case and so he surrendered before the Magistrate but he was refused to be taken to judicial custody since he had not been arraigned as accused in the F.I.R.