Decided on January 12,1973

Jamini Ranjan Parida and Anr. Appellant
STATE Respondents


K.B. Panda, J. - (1.) THE two Appellants, Jamini Ranjan Parida (Appellant No. 1) and Pravakar Parida (Appellant No. 2) have been convicted under Sections 324 and 323, Indian Penal Code, and consequently sentenced to six months ' R.I. and to pay a fine of Rs. 100/ -, in default to undergo R.I. for a fort -night respectively by the Additional Sessions Judge. Dhenkanal on 30 -9 -1969.
(2.) THE present appeal arises out of Sessions Trial No. 24 of 1969 which is a counter case to Sessions Trial No. 14 of 1969 disposed of by the same Judge on the same day. The Appellants in this case are two brothers. So far as this case is concerned the prosecution alleges that on 31 -8 -1968 at about 8 A.M. Appellant No. 1 and his deceased brother Krushna while grazing cattle, allowed them to stray and damage the mung crop of the informant, p.w. 1. due to previous hostility. When the informant whose house was close to the field alleged to have been damaged by the cattle protested the deceased Krushna challenged the informant to come near him and Appellant No. 1 advised his brother Krushna to cut him to pieces. At this, the informant caused his brother Bhagaban and when both the brothers, i.e., p.ws. 1 and 2 attempted to drive the cattle to kine house, Appellant Jamini obstructed and shot two arrows at p.w. 2, Bhagaban. The first arrow missed Bhagaban but the second arrow pierced near the left eye -brow of p.w. 2. At that time Bhagaban 's mother Kuntala p.w. 6 is said to be going to take her bath in a tank and so she came running to Bhagaban and caught hold of him. Appellant No. 2 is said to have appeared at that time at the scene being called by Appellant No. 1 and dealt a blow on the head of Kuntala, p.w. 6 in consequence of which she received a bleeding injury. While p.w. 1 came to the rescue of his mother, Appellant No. 2 dealt two lathi blows on the right fore -arm of the informant and deceased Krushna who was armed with a Tabala dealt a blow with it on the head of the informant. When Krushna, the deceased was going to give a second blow, the prosecution case is that the informant to save his life aimed a blow with his tangia at the hands of Krushna but as Krushna receded, the tangia fell on the shoulder of Krushna causing his death. The first information in this case, Ext. 1 was lodged by the informant at Angul P.S. and a case under Sections 323 and 324, Indian Penal Code, was registered against the accused persons. The charge -sheet was submitted under Sections 326/323/34, Indian Penal Code. However, in the Court of Sessions Appellant Jamini was charged under Section 307, Indian Penal Code and Appellant Pravakar under Section 323, Indian Penal Code but convicted as set out above. The defence which is the case of the prosecution in the counter case, is that on the alleged date and time Krushna Parida, the deceased and Appellant Jamini were proceeding with 30 heads of cattle for grazing. While they passed through Balijori Nala in front of the cow -shed of the informant p.w. 1, his three brothers and their wives and mother of Banshi, Bhagaban, Gunanidhi and Chandramani, i.e., Kuntala p.w. 6 picked up quarrel with them falsely alleging that the cattle had damaged their mung crop and attacked them with various weapons. Banshi, p.w. 1 is said to have been armed with a tangia and so too Gunanidhi. Kuntala was armed with bow and arrow and Bhagaban and Chandramani with lath is. Gunanidhi is said to have pelted stones at Appellant Jamini, one of which hit his right leg and Bhagaban p. w. 2 dealt a lathi blow on the bead of Appellant Jamini. While Krushna brother of the two accused who died in the incident) came to the rescue of Appellant Jamini, the informant with his family members surrounded Krushna and Gunanidhi at the instigation of the informant dealt a cut blow on the right side of the neck of Krushna as a result of which he died at the spot. The two Appellants deny to have assaulted any body of the informant 's party.
(3.) THE learned Additional Sessions Judge on a perusal of the evidence came to the finding that there was no intentional damage caused to the mung crop by letting into it 30 heads of cattle, but it might have been that one or two had strayed into it. Due to previous hostility between the two families unnecessarily the informant 's party took offence and both the parties got ready for a free fight. In the trial of strength both the parties received injuries but unfortunately one Krushna, brother of the two Appellants succumbed to the injury on his neck. Thus, he held both the parties responsible for the offence they have committed in the affray and convicted them accordingly. Admittedly, there are injuries on both sides.;

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