NILAMBAR PATRA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The appellant and three other accused persons, namely, Prahallad Mobapatra, Anirudba Sethi and Bhola Alias Raamachandra Lenka, stood trial in the court of the Sessions Judge, Balasore, being charged under section 395 of the Indian Penal Code (for short, the CodeT) for commission of dacoity in the house of Ashamani (hereinafter described as the deceasedT) in village Bajana in the district of Balasore during the night of March, 3, 1983, after she was dragged out of her house and assaulted in a filed and while the appellant Nilambar guarded her in the field where she lay injured, the companion accused persons broke open her house and removed articles. The appellant and the co-accused Prahallad and Anirudha also stood charged under section 304 Part 1 read with section 34 of the code for having committed culpable homicide not amounting to murder in furtherance of their common intention by dealing fist blows and kicks to her in the field on March 30, 1983 which, the prosecution sought to show, resulted in her death on August 18, 1983.

(2.) To bring home the charges, the prosecution had examined nine Witnesses including the first- informant (P.W. 1) who had testified that the deceased was his TPiusi (father's sister). P.W. 1, Niranjan Dwivedy (P.W. 4) and Surendra Das (P.W. 7), two co-villagers of the deceased, had deposed about the verbal dying declarations said to have been made by the deceased. There was, in addition, the dying declaration (Ex. 9) of the deceased recorded in the course of investigation by the Sub-Inspector of Police (P.W. 8) which been admitted in evidence in spite of the objection raised by the defence. In the course of investigation, the Sub-Inspector of Police (P.W. 8) had seized from the possession of the co-accused Bhola alias Ramchandra some articles said to have been removed during the commission of the offence of dacoity.

(3.) The appellant and the co-accused persons had denied the charges framed against them and had pleaded that they had been involved falsely.