DHIRENDRA DAS Vs. STATE OF ORISSA

JUDGEMENT

(1.) This appeal arises out of the conviction and sentence dated 6-12-1984 passed by Sri L. Pradhan, Second Additional Sessions Judge, Cuttack, In Sessions Trial No. 136 of 1985 convicting the appellant Dhirandra Das under Section 102 I.P.C. and appellant Niran Das under Sections 324 and 323 I.P.C. and convicting all the appellants under Section 148 I.P.C. and also convicting the remaining appellants other than Dhirendra Das and Nirart as, who have been convicted under the substantive Sections as stated above, under Sections 302, 324 and 323 I.P.C. read with Section 149 I.P.C. and under Section 148 I.P.C. and sentencing the appellants as follows: Accused Dhirendra Das has been sentenced to imprisonment for life for the conviction under Section 302 I.P.C. and to undergo R.I. for one year on each count for the offences under Sections 148 and 324/323 read with Section 149 I.P.C. It has been directed that the sentences would run concurrently. Accused Niran Das has been sentenced to undergo R.I. for three years for the offence under Section 302/1491.P.C. and one year for the offence under Section 18, 324/323 I.P.C. on each count and it has been directed that the sentences would run concurrently. Accused Niran Das, Rarnakanta Das and China Das have been convicted and sentenced to undergo R. I. for two years each for, the offence under Section 302/149 I.P.C. and one year each for the offence under Section 148 I.P.C. and further sentenced to undergo R.I. for one year each for the offences under Sections 324/149 and 323/149 I.P.C. and it has been directed that the sentences would run concurrently.

(2.) The prosecution case, briefly stated is that on 26-6-1982 at about 1 P.M. the accused appellants Dhiran. Niran and Biran who are brothers, were putting a fence on the ban land of deceased Binod. Binod protested to the action of the accused persons. Being enraged, accused Miran brought out a Katari and crowbar and attempted to assault the deceased Binod with the crowbar. The deceased, however, snatchad away the crowbar and threw the same on the ground. After that accused- appellant Miran dealt a blow on the right shoulder of the deceased Binod with the Katari causing bleading injury. Out of fear Binod ran towards Barakati village-crossing shouting for help. Accused Dhiran followed Binod with a Balam in his hand. The other appellants Niran, Biran, Ramakanta and China Das also ran after Binod. Accused Niran was holding a big knife and others were holding lathis. At the village crossing accused Dhiran reaching deceased Binod, stabbed, with the Billam on his back and as a result of that Binod fell down with bleeding injury. Karunakar Das (P.W. 1) seeing the assault on Binod ran near him to rescue him and while P.W. 1 was raising the deceased from the ground, accused Niran dealt a blow with the knife causing injury on his right side chest. It is also alleged that accused Niran dealt a blow with a crowbar on the head of P.W. 1 causing bleeding injury and accused China also assaulted P.W. 1 with a lathi on his left knee. Accused Dhirendra drew up the balam from the seat of injury of the deceased Binod but the iron portion stuck to the injury and the handle come out. Hearing hulla, many persons including the witnesses came to the spot and at that time accused persons fledaway. Hrusi Jena (P.W. 5) brought out the iron portion of the Balam from the seat of the injury of Binod and ultimately that portion was seized by the 1.0. It is also alleged that the accused persons assaulted some family members but as no materials are available, the lower court has not believed the said assault except the assault on Basanti Das (P.W. 4) by accused Niran with a crowbar. It appears that soon after the incident the members of the public mere agitated against the accused persons and some police constables guarded the accused persons in order to protect them from the public fury being molested. The accused persons also sustained injuries and as such they were medically examined. On account of the assault Binod died. The 1.0. held inquest over the dead body and sent the dead body for postmortem examination. Dr. Prasanna Kumar Dabata (P.W. 8) conducted the postmonem examination over the dead body of the deceased Binod and gave opinion that the cause of death was haemorrhage and shock on account of stab injury on the back. The injured persons were also medically examined on police requisition. The Medical Officer, Pritipur Hospital, Dr. Sarat Chandra Samal (P.W. 11) sent a written repon to the Sinjharpur P.S. and on the basis of that report a station diary entry was made and the 1.0. also proceeded\to the Hospital where he recorded the plain paper F.I.R. (Ext. 1) on the basis of the statement of Karunakar Das (P.W. 1). Durilg investigation the 1.0. seized various incriminating articles. Some blood stained articles were sent for chemical examination and serological test and on such examination human blood was found on the Iron portion of the Balamandon other articles. After due investigation, charge-sheet was submitted and the appellants stood their trial and stand convicted and sentenced as stated above.

(3.) The defence plea is that accused Dhiran, Niran, Biran and Ramakanta were rapairing the fence of their Ban and at that time the deceased armed with a Balam along with P.W. 1 and their other brother Ramesh who were armed with knife and lathi came and threatened to assault the appellants. At that time the, deceased brandished the Balam and as it struck against the pillar of the house of Rabati Bawa, the iron portion came out and few down on the ground. Because the pointed portion projected upwards and at that time the deceased Binod fell down on the projected iron portion of the Balam on his back, he sustained the injury which resulted in his death. The accused persons denied the prosecution allegation.