Decided on February 20,1973

Jadu Behera And Anr. Appellant
THE STATE Respondents


B.K. Ray, J. - (1.) OF the 33 accused persons tried in the Court below, only 2, viz : Jadu and Narendra alias Nara Sethi convicted under Section 302, Indian Penal Code and sentenced to rigorous imprisonment for life each are the Appellants in the present appeal the rest having been acquitted.
(2.) THE prosecution case is as follows: Gobardhan Behera was the servant of Sripati Panigrahi, informant p.w. 13. Umakanta and Baidehi were the brother and mother respectively of Gobardhan. On 5 -9 -1968 in the afternoon, Gobardhan and Umakanta had been to the field of p.w. 13 to irrigate it. The two Appellants together with 31 others gathered near the field of p.w. 13 armed with deadly weapons, such as: swords, tangias, spades and lathis. There was some altercations between Gobardhan on one hand and some of the persons assembled on the other. Thereupon, all the persons gathered ,there including the Appellants surrounded Gobardhan and Umakanta. p.w. 13 reached the spot at that time and advised the persons assembled not to quarrel. Then Sudarsan Behera, accused in the Court below assaulted p.w. 13 with a lathi who thereafter ran away from the spot. Appellant Narendra gave a lathi blow on the head of Gobardhan. Puma Sahu and Geura Sahu, accused in the Court below gave one blow each on the head of Gobardhan, the former with a lathi and the latter with a tangia. Madhab, another accused in the Court below gave a blow with a tangia on the head of Umakanta. Gobardhan and Umakanta died on the spot, as a result of the injuries inflicted on them. Chitrasen Dipa arrived at the spot when the assault was going on and tried to prevent it. Sudarsan Behera, accused in the Court below struck Chitrasen with a lathi on his head who then ran away being injured. Baidehi also died at the spot where she had gone as a result of the assault by some of the persons assembled. Chitrasen Dipa informed about the incident to p.w. 3 who thereafter lodged the F.I.R. (Ex. 71) at 8 -30 p.m. the very same day when the occurrence had taken place. The police after investigation submitted charge -sheet against 33 persons including the Appellants and they being committed for trial to the Court of Sessions were tried by the Court below which convicted and sentenced the Appellants as mentioned above and acquitted the remaining 31 persons.
(3.) ACCORDING to the prosecution case, p.w. 13 was the person who went to the spot when altercations were going on between Gobardhan and some of the persons who had gathered there with various weapons. In his evidence p.w. 13 names 6 persons including Appellant Nara Sethi. He does not say to have seen Appellant Jadu there at the spot. p.w. 13 further says that he was struck with a lathi by Sudarsan Behera where after he p.w. 13 left the spot. The assault by Sudarsan Behera on p.w. 13 has not been believed by the Court below.;

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