KHOLIA NAIKO Vs. EMPEROR

JUDGEMENT

(1.) The five appellants were charged in the Court of the Sessions Judge of Ganjam Puri with being members of an unlawful assembly, the common object of which was to murder Lokhono Tripathi and with the murder of that man. Of the four assessors who assisted at the trial three were of opinion that the charges were not proved while the remaining assessor found the accused guilty of rioting with deadly weapons and of causing grievous hurt in prosecution of the common object of the assembly. The learned Sessions Judge accepted the opinion of the last mentioned assessor, convicted all the appellants under Section 426, read with Section 149 and sentenced them to six years rigorous imprisonment each.

(2.) The prosecution case as laid in Court was that at 9 P.M. on 30 January last, the deceased and his brother Baranidhi Tripathi (P.W. 3) had finished the measuring of their paddy on their threshing floor Then the deceased went home to have his evening meal leaving Baranidhi Tripathi (P.W. 3) to watch the paddy. When the deceased returned to the threshing floor, Baranidhi (P.W. 3) went home to have his meal. on his way back from his home to the threshing floor P.W. 3 saw the five appellants going from the direction of the threshing floor towards the village carrying arms. When he reached the threshing floor, P.W. 3 saw his brother lying there severely injured, and he deposed that his brother told him that he had been assaulted by the five appellants. According to the evidence of P.W. 3, an alarm was then raised which at first brought P.Ws. 4 and 5 to the scene. The story that these two witnesses told is curious and unnatural. They say that hearing a man cry out from the khaliban and hearing blows, they hastened there and found the appellants in the act of assaulting Lokhono.

(3.) On their protest the five appellants hastily withdrew. They themselves did nothing to ease the injured man but returned to the place from which they had come and said nothing to anybody. Later, when they heard P.W. 3 raise the alarm, they went to the threshing floor and they depose that on this occasion Lokhono made a statement that he had been assaulted by the appellants. While Damodar Tripathi (P.W. 4) remained at the threshing floor with P.W. 3, Hari Krishna Panda (P.W. 5) was sent to the village to inform the villagers, and it is said that then Baidyanath Panda (P.W. 6) and Dibya Sinha alias Gandu Panda (P.W. 7) arrived and that Lokhono informed them also that he had been assaulted by the five appellants.