TIKERAM BAG Vs. STATE OF ORISSA

JUDGEMENT

(1.) Appellant Tikeram Bag with five of his other socio criminises including his three uterine sibling brothers, namely, Bholanath Bag, Radheyshayam Bag @ Radhe and Raju Bag with two others Debeswar Bag and Gobinda Bag, were prosecuted for offences u/s. 302/34, 294/34 and 323/34 relating to police station Boden district Nuapada by Additional Sessions Judge, in C.T. Case No. 5 of 2010, The State versus Tikeram Bag and others and since the appellant only was adjudged guilty of offence u/s. 302 I.P.C. and was convicted and sentenced to life imprisonment and to pay a fine of Rs. 10000/- only and in default of payment of fine to serve additional 1 year imprisonment vide impugned judgment and order dated 28.03.2011, that he has preferred instant appeal challenging his aforesaid conviction and sentence. Albeit needless to mention but recapitulated here is the fact that rest of his associates, who were members of unlawful assembly, were acquitted by the learned trial Judge which opinion of acquittal has now attained finality as not being challenged from any quarter.

(2.) Occurrence in question, as was unfurled during the trial by the fact witnesses had occurred in village Dahanapali, P.S. - Boden district Nuapada where a Banyan tree is situated at Baragachha Chhak by the east side, at the north bend of a east - west village metalled road. Banyan tree is encircled by a cemented brick pedestal and the incident in question occurred near this Banyan tree on the metalled road. House of Balkrishna Bhoi, the informant/P.W.1 and his father Nityananda Bhoi, the deceased in the incident, lies a little more than 100 meters from the tree in Bhoi Pada, while house of the appellant is situated about 150 meters in Harijan Pada. Nearby also lies a primary school at a distance of 50 meters. From near the place of the incident another road goes to the village Takkersor.

(3.) Both the rival inimical sides are residents of the same village Dahanapali and genealogy of the prosecution sides reveals that one Chakradhar Bhoi of that village had three sons Nityananda (deceased) Bhardwaj Bhoi/P.W. 3 and one Narsingh Bhoi (injured in the incident but not examined by the prosecution). Informant Balkrishan Bhoi/P.W. 1 and Radhakrishna Bhoi/P.W. 4 are the sons of the deceased Nitaynanada, where as Gharmani Bhoi/P.W. 10 is the wife of the informant/P.W. 1. So also it transpires that one Mangal Bag of the same village Dahanapali had four sons Tikeram (appellant), Bholanath, Radheyshayam @ Radhe, and Raju (all were accused, but since acquitted). It is not decipherable from testimonies of witnesses as to whether other two acquitted accused Debeswar Bag and Gobinda Bag belonged to the same family tree or not but it is apparently unambiguous, from their statements u/s. 313 of the Code, that they were also co villagers.