STATE OF ORISSA Vs. BATA ALIAS KHANDI SETHI

JUDGEMENT

(1.) These two cases arise out of Sessions Trial No. 72 of 1982 of the Court of the Sessions Judge, Cuttack. The appellant in one case was convicted under Section 302 I.P.C. and was sentenced to undergo imprisonment for life. The other accused persons in the said case who were tried along with the appellant for offences under Sections 302, 323 and 324 read with Section 34 I.P.C. were found not guilty and were acquitted. The State has preferred the other appeal against the order of acquittal of only one of the accused.

(2.) The prosecution case in brief is that P.Ws. 1 to 7 and the accused persons are agnates. Their houses and Baris in the village are at one place. Deceased Purna was the natural born son of P.W. 7 and his wife (P.W. 6) and was the adopted son of P.W. 1, the informant and his wife (P.W. 3). P.Ws. 2 and 4 are the brothers of the deceased and P.W. 5 is his widow. These persons, whom we shall refer to as the 'prosecution party' whenever necessary, had long standing land disputes with accused persons and there was no love lost between them. It was alleged that the accused persons cut down a plantain tree from the land of P.W. 1, annexed the land to their own Bari and stacked paddy thereon. For this incident, the accused persons had been abused in the previous evening. The incident took place on 31-12-1980 around 7.30 a.m. Appellant Kapila (accused) came to the house of P.W. 1 and hurled abuses. His father accused Nata intervened and took him away. Thereafter, accused Nata came to the house of P.W. 1 and called the deceased to accompany him to the land to verify if actually the plantain tree had been cut and removed. Accordingly, the deceased accompanied accused Nata and when both of them were proceeding by the nearby lane appellant Kapila stabbed him near the left side chest by means of a spear, as a result of which he fell down on the ground. Accused Shyama, brother of appellant Kapila hit the deceased by a long knife. When P.Ws. 1 to 7 on seeing the assault rushed to the place, they were indiscriminately assaulted by accused Nata, Shyama, Bata (respondent in government appeal) and Jata by means of lathis and knife. Deceased Purna died on the spot and the other members of the family were injured. P.W. 1 lodged F12 (Ext. 1) at Dharmasala Police Station. Investigation commenced and from the spot a spear and two lathis were seized. A knife was also subsequently seized. The dead body was sent for post-mortem examination and the injured persons were sent for medical examination. After close of investigation charge-sheet was submitted against all the accused person for having committed offences under Sections 302, 323 and 324 read with Section 34 I.P.C.

(3.) The defence of appellant Kapila was that he was not aware how the deceased died because, he was working in the fields. He returned at 9 a.m. and found that his father accused Nata was not in a condition to move. Therefore, he hired a rickshaw and left for hospital. On the way he met the police officer who sent them to the police station. The defence of the respondent Bata was that he was cutting bamboos when decease, Purna and all the family members came and abused his aunt. When he protested they started beating him, his aunt and sister-in-law. At that time he pierced a Farsa (Hoe) on the right shoulder of the deceased as a result of which he collapsed.