Decided on September 10,1973

Raidhar Gouda And Dileswar Gouda Respondents


B.K.Patra, J. - (1.) RESPONDENT No. 1 Raidhar Gouda and his son Dileswar Gouda Respondent No. 2 were tried by the Sessions Judge, Sambalpur -Sundergarh on a charge under Section 302/34, Indian Penal Code but were convicted under Section 324, Indian Penal Code and each was sentenced to undergo rigorous imprisonment for one year. The State has appealed against the conviction and sentence on the ground that the learned Sessions Judge erred in not convicting the Respondents under Section 302/34, Indian Penal Code. There has been no appeal by the Respondents against their conviction.
(2.) THE prosecution case may be briefly stated. The deceased Banchhanidhi Pani was a Forest Guard posted to Binjipali forest beat. He was residing in his quarters at Binjipali. P.w. 17 Judhisthir Panda is also a Forest Guard posted to Akadanda Reserve Forest beat. He also was staying in his quarters in Binjipali mouza close to the quarters : of the deceased. On 2 -9 -1968, p.w. 17 and the deceased went to the forest on duty. While inside the forest, they detected Respondent No. 1 Raidhar grazing goats within the limits of the reserve forest. He was, therefore, fined Rs. 22/ - by the deceased. Raidhar went home, brought the amount, deposited the same with the deceased and took back his goats from the forest. P.w. 17 and the deceased went further into the forest and detected p.w. 6 Kulamani and p.w. 9 Ghasia Munda while they were returning from inside the by forest carrying bamboo sprouts. Their offence was compounded the deceased and while the compromise petition was being written, Respondent No. 2 Dileswar came there holding a lathi and an axe. After the compromise petition was written, 6 and 9 left the place. The deceased then asked Dileswar what brought him there and. Dileswar questioned the deceased as to why he had taken Rs. 22/ - from his father. The deceased explained the circumstances under which the amount was realised from Respondent No. 1 Dileswar then demanded a receipt and the Forest Guard told him that it would be issued after obtaining it from the Divisional Forest Officer. Thereafter p.w. 17 and the deceased left the place. Hardly had they proceeded a few steps, p.w. 17 who was walking ahead of the deceased heard the sound of lathi blow and looking back saw Dileswar giving two blows with his axe one on the head and the other on the right hand of the deceased. The latter fell down on the ground. Just at that moment, the other Respondent Raidhar appeared at the spot from inside the jungle carrying an axe and gave a blow with it on the head of the deceased. Immediately afterwards both made good their escape, P.w. 17 then raised an alarm hearing which Gobindaram Patel p.w. 8 reached the spot. Shortly thereafter some of the villagers also came there. They carried the deceased Banchhanidhi to the Laida Primary Health Centre where he was examined by the doctor K.C. Misra p.w. 14. The doctor found the deceased in an unconscious state. He rendered necessary first aid but as he considered the injuries to be of serious nature he sent the patient to the Burla Medical College hospital where the deceased died at about 10.30 a.m. On 7 -9 -1968. Meanwhile at about 5 a.m. on 3 -9 -1968, p.w. 17 had reported about the occurrence to p.w. 18, the Officer -in -charge of Kuchinda Police Station. The Sub -Inspector of Police recorded his statement and treated this as First Information Report under Section 333/326, Indian Penal Code and took up investigation. He arrested the accused and recovered the axe M.O. III from, the house of Respondent Raidhar. Respondent Dileswar produced before him the axe M.O. I and the lathi M.O. II.
(3.) AFTER the death of Banchhanidhi intimation was given by the hospital authorities at Burla to the Officer -in -charge of Burla Police Station who held an inquest over the dead body and sent it for post -mortem examination. P.w. 5 conducted the autopsy over the dead body and submitted his post -mortem report Ext. 5. The inquest and the post -mortem reports were sent by the Officer -in -charge, Burla to the Officer -in -charge of Kuchinda who after completing investigation submitted the charge sheet under Section 302/34, Indian Penal Code.;

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