ISWAR @ KISHORE NAIK Vs. THE STATE

JUDGEMENT

(1.) THE Appellant along with three others, viz., Mandira Naik, Jadumani Naik and Dasaratha Naik were jointly tried by the learned Sessions Judge of Mayurbhanj -Keonjhar. The Appellant and Mandira Naik were charged under Section 302/34 , Indian Penal Code with having caused the death of one Garjan Padhan in furtherance of their common intention. Accused Dasaratha Naik stood charged under Section 325, Indian Penal Code and accused Jadumani Naik under Section 323, Indian Penal Code for having caused hurts to P.W. 7 Biswanath Palei and P.W. 6 Khageswar Padhan respectively. After trial, the learned Sessions Judge acquitted accused Jadumani and Dasaratha but convicted the other two accused persons under Section 302/34, Indian Penal Code and sentenced each of them to undergo imprisonment for life. This appeal has been preferred by the Appellant alone challenging his conviction and the sentence.

(2.) PROSECUTION case was that in the early morning of 29 -7 -1975 P.W. 2 Trutiya Padhan, his brother Garjan Padhan (the deceased), his son Khageswar Padhan (P.W. 6) and his co -villagers P.W. 5 Purandar Giri and P.W. 7 Biswanath Palei had been to a reserve forest to collect mushrooms. After they collected mushrooms each of them cut a piece of sal tree and came out carrying the trees and the mushrooms. While they were proceeding, the accused persons obstructed them and shouted to catch hold of them. P.W. 6, the deceased Garjan Padhan and P.W. 7 Biswanath Palei were corning in the front while P.W. 2 Trutiya Padhan and P.W. 5 Purandar Giri were following them. When the deceased and P.Ws. 6 and 7 were obstructed, P.Ws. 2 and 5 ran away from the spot. The convict Mandira and the Appellant caught hold of the deceased. Accused Jadumani and Dasaratha caught hold of P.Ws. 6 and 7. The Appellant dealt a blow with his Tangia on the head of the deceased as a result of which he fell down. Then he dealt a second blow with the blunt side of the axe near the right ear of the deceased. The convict Mandira also assaulted the deceased with a bow which he was then holding. When the deceased struggled on being so assaulted, Mandira took the axe from the Appellant and dealt two blows on the legs of the deceased. Accused Jadumani then assaulted P.W. 6 with his Lathi and accused Dasaratha assaulted P.W. 7 with a lathi. Then P.Ws. 6 and 7 went to village Gandubarei carrying the cut pieces of the sal trees as directed by the accused persons. The accused persons took P.Ws. 6 and 7 to the Police Station at Baria and lodged F.I.R. against them on the allegation that they had committed theft. P.W. 2 Trutiya Padhan also lodged F.I.R. at the Baria P.S. on 29 -7 -1975 at 11.30 a.m. to the effect that the deceased had gone to collect mushrooms from the forest but did not return and that be found the dead body of the deceased lying near a hillock. After investigation, the police submitted charge -sheet against the accused persons as indicated above.

(3.) THAT the death of the deceased was homicidal admits of no doubt. The doctor (P.W. 4) held post mortem examination over the dead body of the deceased on 30 -7 -1975 at 10 a.m. and found the following injuries: