MAHESWAR BEHERA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The appellants hereinafter referred to as 'the accused' have challenged the judgment and order of conviction passed by the learned Sessions Judge, Balasore, in Sessions Trial No. 61 of 1986. By the impugned judgment accused Maheswar Behera has been convicted under Sections 304, Part II, 148 and 323 read with Section 149, IPC and sentenced to undergo rigorous, imprisonment for four years for the offence under Section 304, Part II, I.P.C., to undergo rigorous imprisonment for six months for the offence under Section 148, IPC and to undergo rigorous imprisonment for one month for the offence under Section 323 read with Section 149, IPC.Accused Brahmananda Behera and Jagannath Behera have been convicted under Sections 304, Part II, read with Sections 149, 148 and 323/149, IPC and sentenced to undergo rigorous imprisonment for four years for the offence under Section 304, Part II read with Section 149, to undergo rigorous imprisonment for six months for the offence under Section 148, I.P.C.and to undergo rigorous imprisonment for one month each for the offence under Section 323/149, I.P.C.Accused Gani @ Sanyasi Behera and Prasanta @ Dhadi Behera have been convicted under Section 304, Part II read with Section 149, I.P.C.and sentenced to pay a fine of Rs. 1,000/-, in default to undergo rigorous imprisonment for two months each.

(2.) Prosecution case, culled out during trial may be briefly stated thus : Ramakanta Behera (hereinafter referred to as 'the deceased') was the brother of Raghunath Behera, P.W.1, their father being Akshay alias Thakar Behera, P.W.3. On 18-2-1986 at about 3.00 p.m. Raghunath Behera, P.W.1, his wife and sister were sitting on their front verandah while his father Thakar and the deceased were sitting in the outer Courtyard. Adjoining the courtyard their lies a passage. At this moment accused Maheswra Behera while going through that passage, wife of P.W.1 who was then suffering from cold, coughed to which he took exception and hurled abuses at her. To this when the deceased raised protests, he gave him threats and went away. About half an hour thereafter he along with other accused persons being variously armed came to the place where the deceased and others were sitting and of them accused Maheswar who was armed with crowbar, gave a blow on the head of the deceased and thereafter other accused person simultaneously assaulted him with lathis held by them. When P.W.1 and his father P.W.3 protested, they were also beaten by the accused persons. In the meantime, Chintamani Behera P.W.2 hearing hullah arrived at the place of incident whereafter all the accused persons left the spot. On being so assaulted the deceased died at the spot. P.W.1 orally reported the incident at Balasore Gadar P.S.and accordingly the F.I.R., Ext. 1 was drawn up. P.W.5, the Officer in charge proceeded with the investigation in course of which he visited the spot, examined the witnesses, seized blood stained earth and one Lungi, M.G.II, searched the houses of the accused persons and seized some lathis, held inquest over the dead body of the deceased, sent the dead body for postmortem examination, issued requisition for medical examination of P.W.1 and 3, arrested accused Maheswar who, while in custody, gave recovery of a crow-bar M.O.IV, prepared the spot map, sent the blood-stained earth and other seized articles for chemical examination and on completion of investigation, placed charge-sheet under Sections 147, 148, 149, 302 and 323, IPC against the accused persons to stand their trial.

(3.) The plea of the accused persons was a complete denial of the prosecution case. Their further plea was that the deceased being not in good terms with his father and brother, was residing in the house of accused Maheswar. At the alleged time of occurrence when the deceased attempted to have a forcible entry into his ancestral house, P.Ws. 1 and 3 obstructed and assaulted him and in turn he assaulted them with lathis, as a result they sustained injuries. Besides, while being examined under Section 313, Cr. P.C.they have taken the plea of alibi, inasmuch as at the time of alleged incident they were not present at the spot, but were present elsewhere.