BANDHANA BARLA AND ORS. Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order dated 27.4.2004 of the learned Sessions Judge, Sundargarh in Sessions Trial No. 174 of 2003 convicting all the three Appellants for commission of offence under Section 302 read with Section 34 of the Indian Penal Code (in short 'IPC.') and sentencing each one of them to imprisonment for life and fine of Rs. 5,000/ -.

(2.) THE Appellants, the deceased and one Karma Barla are brothers. There was a partition between them and they were possessing their respective shares. Kamala Barla died without leaving behind any legal heir and his share was distributed among the surviving four brothers. The deceased had complained that he had not been given an equitable share and for that reason there was dispute between the three Appellants and the deceased. On 8.7.2002 morning, the bullocks of the deceased trespassed into the paddy filed of one of the Appellants for which all the three Appellants assaulted the deceased in his house. Thereafter, the three Appellants called the deceased to go to the police station to report the matter and they were accompanied by the first and second wife of the deceased. On the way near Andha Behena the Appellants suddenly attacked the deceased by means of lathi and knife and killed him. The second wife of the deceased tried to save him but she was also assaulted. The second wife of the deceased Sukanti, P.W.1, lodged the F.I.R. before the Officer -in -Charge of Kinjirkela Police Station whereafter investigation was taken up. On completion of investigation charge sheet was submitted against the three Appellants for commission of offence under Section 302/34 IPC.

(3.) SHRI J.R. Dash, the learned Counsel appearing for the Appellants assailed the impugned judgment on several grounds. It was contended by the learned Counsel Shri Dash that P. Ws.1 and 14 are the two wives of the deceased and claimed to have witnessed the occurrence. The occurrence took place in two parts i.e. the assault on the deceased by the Appellants in the house of the deceased and the murderous assault on the deceased on the way to the police station. P.W.1 in her evidence has ruled out the presence of P.W.14 so far as second part of the incident is concerned and, therefore, P.W.14 cannot be accepted as an eyewitness to the occurrence.