Decided on August 10,2020

Prasana Kumar Behera (Since Dead) Appellant


D. DASH,J. - (1.) The appellants by filing this appeal have assailed the judgment of conviction and order of sentence dated 14.04.1988 passed by learned Sessions Judge, Keonjhar in S.T. Case No.61 of 1986. By the said judgment, the appellant no.1 (accused) has been found guilty for commission of offence under sections 304-II and 324 of the Indian Penal Code (for short, 'the IPC') and the appellant no. 2 (accused) has been held guilty for commission of offence under sections 324 and 326 IPC. Accordingly, both of them have been convicted thereunder. The appellant no. 1 has been sentenced to undergo rigorous imprisonment for a period of eight years for committing the offence under section 304-II IPC and rigorous imprisonment for one year for the offence under section 324 IPC with the stipulation that the sentences are to run concurrently. The appellant no. 2 has been sentenced to undergo rigorous imprisonment for a period of one year for committing the offence under section 324 IPC and rigorous imprisonment for a period of five years and pay fine of Rs.500/- in default to undergo rigorous imprisonment for one month with the stipulation that substantive sentence of imprisonment imposed on both the counts would run concurrently.
(2.) In response to the letter of this Court, report has come to be received from the Superintendent of Police, Keonjhar that the appellant no. 1 (accused-Prasana) has expired on 3.6.2020 on account of sudden illness. On 16.06.2019, Mr. Debi Prasad Patnaik, learned counsel filing Vakalatnama had appeared on behalf of the appellants. He submits to have no such instruction either from the legal representatives of appellant no. 1 or the appellant no.2 (accused- Muralidhar) to further pursue the appeal in so far as appellant no.1 is concerned. He however submits to have the instruction to argue the appeal in assailing the judgment of conviction and order of sentence in respect of appellant no.2 (accused-Muralidhar). In view of the above, the appeal in so far as the appellant no. 1 (accused-Prasanna) is concerned stands abetted and it now runs only at the instance of the appellant no.2 (accused-Muralidhar)
(3.) The case of the prosecution in short is that on 9.8.86 around 5.30 P.M. the informant namely, Bhaskar Chandra Sethi (P.W.1) was there in front of their house running by the side of the road of village Karanjia under Champua Police Station in the district of Keonjhar. The informant was then talking with Dayanidhi Behera (P.W.3) and Pratap Charan Giri (P.W.4). Around that time, accused Prasana Behera (appellant no.1-since dead) returned from the village football field side and questioned P.W.1 as to why he addressed his brother Hrushikesh Behera as Mulia (Servant). P.W. 1 having denied to have said so, wanted a direct confrontation. It is said that accused Prasana then got enraged and while scolding, went to his house. Immediately, thereafter, he returned from the house being followed by his brother accused Muralidhar (appellant no.2), his parents, namely Jadumani and Raimani. It is further stated that accused Prasana lifted a stone from the ground and threw it as such. He then came towards P.W.1 to assault him. At this sight, P.W.1's mother and father i.e. Fulmani (deceased) and Nakfodi (P.W.2) came to rescue P.W.1. After words accused Prasana scolded P.W. 1 and having come closure brought out a 'Chhuri' (Knife) from near his waist and attempted to stab at P.W. 1. In the process, P.W.1 having been able to avoid the said blow to the sit aimed at, the knife struck at his left hand finger causing bleeding injury. At this point of time, when his mother came on the front to save P.W. 1, the attempted second blow by the accused Prasana hit at her belly resulting severe bleeding injury and bulging of the intestine. Having received the blow, she made a cry that accused Prasana had killed her and went to the veranadah of Khetrabasi Sahu (P.W.5) where she fell down and died. It is further stated that at that time, accused Muralidhar in respect of whom the appeal is being prosecuted dealt axe blow on the face of the father of P.W. 1 examined as in the trial P.W. 2 resulting bleeding injury on his person and causing loss of 2/3 teeth. He then called out Khetrabasi (P.W.5) to have been so assaulted. When Khetrabasi (P.W.5) and others rushed to the place, accused persons Prasana and Muralidhar holding the weapons fled away. It is stated that informant's father i.e. P.W. 2 had purchased a piece of land measuring Ac.0.30 decimals from the father of the accused persons and in respect of the said transaction as also the possession of the land, there was dispute between the accused persons on one hand and the informant P.W. 1 on the other. So there was ill-feeling for which accused Prasana purposely made false allegation that his brother namely, Hrushikesh had been addressed by P.W.1 as 'Mulia' (Servant) with the sole intention to see that quarrel would ensue so that he would fulfill his evil desire in assaulting the informant (P.W.1) and others for being visited with fatal consequences. Khetrabasi Sahu (P.W.5) having first reported the incident at Champua Police Station; the Sub-Inspector of Police (P.W.11) present there entered the said fact in the Station Diary Book of the police station vide Entry no. 253 dated 9.8.86 (Ext.17). The S.I. of Police Station (P.W.11) then informed the fact to the Office-In-Charge of the Police Station (P.W.12) by VHF as he was then on duty at Jhumpura. He proceeded to the spot and there the plain FIR Ext. 1 from P.W. 1 was received which led to the registration of the case. In course of investigation, the informant and other witnesses were examined; post mortem examination was held over the dead body of the deceased; the injured persons P.Ws. 1 and 2 were medically examined and incriminating articles were also seized and sent for chemical examination. On completion of investigation, charge sheet having been submitted against the accused persons (appellants), they faced the trial being charged with the commission of offence under section 302/324/326/34 IPC. ;

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