Decided on September 10,2020

Rasananda Jena Appellant


SANJU PANDA,J. - (1.) Appellants have preferred this appeal challenging their conviction U/s.302 read with section 149 of Indian Penal Code (in short the I.P.C.) and sentence to undergo life imprisonment passed by learned Addl. Sessions Judge, Kendrapara vide judgment dtd.11.10.1999 in S.T. No.41/433 of 1996.
(2.) Adumbrated in brief, prosecution case is that on 21.5.1995 at about 1.30 P.M. at Ketuapala Irrigation Embankment, deceased Rusi Sethi was attacked by accused persons and succumbed to injuries on way to hospital. In this regard, his son, informant (P.W.1), lodged an F.I.R. (Ext.1) in written on the next day at 8:30 A.M. It is alleged therein that the accused persons including the appellants, seventeen in numbers, on the occurrence day at morning approached their villagers violently and destroyed the building of one Ananta Kishore Das (D.W.2). Thereafter at about 9 A.M., deceased went to ascertain fact from Sarapancha Baidhar Naik. His son, informant, was following him. Near Panchayat office appellant accused Rasananda Jena accosted others to kill the deceased. Accused Duryodhan dragged the deceased towards embankment. Accused Gugula dealt a Farsha blow to the right leg. Accused Baidhara dealt Bhujali blow to the left hand, accused persons Rajat and Ashok dealt kick blows putting him on the ground. The informant could not react as he was threatened by accused Naba. Thereafter he along with Rajendra, Niranjana and others took the deceased to Kantipur Government Hospital. Doctor referred the deceased to Jajpur Hospital, but on the way, near Binjharpur, he succumbed to his injuries. After returning, at 3 P.M. the F.I.R. was lodged at spot which was registered at Aul Police Station vide P.S. Case No.70 of 1995, corresponding to G.R. Case No.518 of 1995. In course of investigation the post mortem was conducted by doctor P.W.10 referring Binjharpur U.D. P.S. Case No.12 of 1995. The seized articles including one Farsha were dispatched for chemical examination. After completion of investigation charge-sheet was submitted by O.I.C. Sumanta Swain. The S.D.J.M., Kendrapara took cognizance. As one accused namely Mantua Naik had absconded, the case against him was split up. The case was committed to the Court of Addl. Sessions Judge, Kendrapara against eighteen accused persons who faced charge U/s.302 and 506 read with section 149 of I.P.C. On being asked, the accused persons pleaded not guilty and claimed trial.
(3.) The plea of defence is denial simplicitor. Prosecution examined 12 witnesses in all. Defence examined three. P.W.1 is the informant and son of deceased. P.W.2 is also a son of deceased. P.W.10 is the doctor who conducted P.M. vide Ext.2. P.W.11 is a doctor who examined D.W.3 an injured. P.W.12 is the A.S.I. of police who proved the S.D. entry (Ext.4) as to the information received first at police station and formal F.I.R. Ext.1/4. The Investigating Officer Sumanta Kumar Swain is not examined for having expired. P.Ws.3, 4, 5, 6, 7, 8 and 9 are witnesses to the occurrence. P.Ws.3, 6, 7 and 9 have not stated anything about incident. P.Ws.1, 2, 6, 7 and 9 are declared hostile. The contradictions with regard to their statements recorded U/s.161 Cr.P.C. marked X, Y, Z and Z/1 could not be proved due to non-availability of the Investigating Officer. P.Ws.4, 5 and 8 are co-villagers and stated to have seen the occurrence. F.I.R., P.M. report, injury report of D.W.3 and the Station Diary Entry (earliest report by O.I.C.) are the four documents exhibited on behalf of prosecution. No material object is produced in the court during trial. Three witnesses are examined on behalf of defence out of whom D.W.1 is the tea stall owner near the spot. D.W.2 is the owner of the house which was destroyed in the morning for which incident the deceased was going to make query from Sarapanch. D.W.3 is the injured whose injury report is proved vide Ext.3. From the side of defence six documents, i.e., certified copy of the complaint petition and F.I.R. vide Ext.A to Ext.F are marked to prove prior enmity between the parties and with investigating officer-cum-O.I.C., Aul. ;

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