BISWANATH PANDA Vs. THE STATE

JUDGEMENT

(1.) THIS is an appeal by the Appellant, Biswanath Panda against his conviction under part II of Section 304 of the Indian Penal Code and the sentence of rigorous imprisonment for four years. Originally, the Appellant was charged under Sections 302 and 324 of the Indian Penal Code. He had been acquitted of both the charges and is convicted as stated above. The charge was for having committed the murder of one Bhaira Swain in village Bhubanpati within the limits of Brahmgiri police Station in the district of Puri by shooting him with his gun on July 30, 1957. He was further charged for having voluntarily caused hurt by his gun to Syama Swain and Uchhab Bhoi during the same occurrence under Section 324 of the Indian Penal Code of which charge be stands acquitted.

(2.) THE prosecution case, shortly stated, is that the Appellant, Biswanath Panda of Toran in Sadar Police Station of the district of Puri was on the date of occurrence at his Khamar house at Bhubanpati. His uncle Mohanlal Panda, who lives joint with him ordinarily stays in the town of Puri where he was working as a Pleader's clerk, and subsequently, joined certain other service. For the maintenance of himself and his family at Puri, he would require rice and paddy to be supplied from the joint Khamars' of the family from different villages in the district of Puri. Appellant Biswanath was working as a Sub -Inspector of Police which office he resigned in about the year 1954 and took up the management of the Khamar houses belonging to the joint family situated in different villages. P.W. 1 and the Appellant had two other cosharers, namely, Upendra Panda and Gohardhan Panda who live at village Toran. Prosecution alleged that the Appellant had Rs. 0 -8 -0 share in the joint family properties and there was no partition of the family properties by metes and bounds. Until the marriage of the daughter of Mohanlal, there appears to have no trouble in the joint family, but dissensions arose between Mohanlal and the Appellant Biswanath since March, 1957, when the marriage of Mohanhal's daughter took place. Mohanlal's daughter was married to one Sudarsan Misra, who according to the prosecution, was also present at the time of occurrence in village Bhubanpati. The prosecution alleged that Biswanath did not supply the necessary funds for the marriage, and accordingly, the dissensions arose and the feelings gulf widened as time passed on. The result was that he stopped supplying rice and money to Mohanlal for his maintenance at Puri. On July 8, 1957, Mohanlal went to Jania for selling certain paddy from out of paddy pits (Khani). This Khamar at Janla was admittedly in charge of the Appellant and one Markand Jena was managing at the locality for. Biswanath. Markand Jena did not allow Mohanlal to sell the paddy and threatened him to be shot with 8 gun if he comes for that purpose. Accordingly, Mohanlal recorded a station -diary entry (Ext. 1) at Brahmagiri Police Station on July 9, 1957. It was alleged by the prosecution that Upendra. Panda and Pankaj Dalai contacted Appellant Biswanath and assured Mohanlal that sufficient quantity of rice and cash would be supplied to him and a partition would be effected amicably within fifteen days. On July 21, 1957. Mohanlal made another attempt to get paddy by going to Ranpada, a neighbouring village of Bhubanpati. There again he received information from the Assistant Sub -Inspector of Brahmagiri Police Station that partition would be effected amicably by selecting. 'Bhadralogs'. Nothing apparently happened. Therefore, on July 29, 1957, Mohanlal went to Bhubanpati accompanied by Bhaira Swain, the deceased, Syama Swain (p.w. 5) of village Balihat and his son -in -law, Sudarsan Misra to bring paddy from the joint Khamar. They halted for the night at Ranpada in the school building and next morning Mohanlal engaged Uchhab Bhai (p.w. 6) of Ranpada for carrying paddy. Thereafter, in the company of these people he proceeded to Bhubanpati leaving instructions with Sudarsan to engage more Bhois for carrying paddy. According to the prosecution, it was at about 6 A.M. that these people reached the Khamar and found the front door closed. Mohanlal knocked at the door calling 'Bisi, Bisi'. According to the prosecution, his companions, Bhaira Swain, Syama Swain and Uchhab Bhoi were standing at a distance at the Danda. Within a -few minutes of the knocking at the door, a gun was fired through a hole in the kitchen wall towards the Danda and all the three companions of Mohanlal were injured. All of them crawled to a certain distance and one of them fell down dead near a Sijubuda opposite to the Khamar Bad. Mohanlal and the other two persons fled away for their life. The prosecution case further is that Bhaira Swain expired at the spot, but later was removed into the courtyard of the Khamar by Biswanath Panda's people. They also set fire to the thatch of the Khamar and put it out after a while when a small portion was burnt. Chowkidar Bhikari Mallik of Madapara arrived there and a written report (Ext. B) was sent through him by the Appellant to the Police Station alleging that he was attacked by a mob with deadly weapons and in self -defence, he fired a gun and injured two persons. This report was received by the Assistant Sub -Inspector of Police at the Police Station at 7 A.M. The Assistant Sub -Inspector of Police made a station -diary entry as the officer -in -charge of the Police Station had gone to the muffasil in connection with certain other investigation. Thereafter he proceeded to the spot for verification of the matter. On arrival, he found the dead body in front of the bed room inside the Khamar house and drew up the first information report (Ext. 13) on hi own information and registered a case under Section 302 I.P.C. Although he registered a case under Section 302 Indian Penal Code, held inquest over the dead body at 11 a.m. and made arrangements for forwarding the dead body for post -mortem examination at Puri, he did not arrest the Appellant then and there. The post -mortem, however, was held by p.w. 8 the following day at about noon. In the meantime, Mohanlal appeared at the Police station at Brahmagiri at about 9 a.m. on July 30, 1927 and filed a written report before the constable in charge of the diary and proceeded to Puri as he had to attend to the injuries on Syama Swain (p.w. 5). It is also the prosecution case that since the Doctor at Brahmagiri was not available and as the condition of p.w. 5 was rather serious, he was removed to Puri in a bullock -cart. P.W. 5 on arrival at Puri was admitted into the hospital and treatment was arranged. Certain pellets were extracted from his body. It is also reported that there were some more pellets still inside his body. The other injured, Uchhab Bhoi (P.w. 6) was sent for medical examination on August 6, 1957 by the Circle Inspector and he was examined by p.w. 15. He had also some pellets embedded inside his body and they were extracted by Doctor P.V. Raghav Rao (vide Ext. 19).

(3.) FROM the injuries as noted in the post -mortem report on the person of Bhaira Swain and in the injury report of Syama Swain, it appeared from the nature and spread of the shots that these persons had been hit by gun fire inflicted from a range of approximately 30 according to the Expert. The pellets extracted from their injuries were of No. BB size which indicated that they were shot with cartridges loaded with BB shots. The small Jui plant contained some puncture marks which might have been caused by pellets resulting from gun fire, but it was not possible to say if these had been caused by BB shots. It was also not possible to say if the marks in the coconut branch, Barkoli branch and Siju thorns had been caused by pellets.