Arijit Pasayat, J. - (1.) Challenge in these appeals is to the Judgment of a Division Bench of the Orissa High Court allowing the appeals filed by the State. - Two appeals were filed against the common Order/Judgment of Learned Sessions Judge, Dhenkanal in Sessions Trial No. 25 D of 1983. The Trial Court directed acquittal of all the accused persons who were charged for commission of offences punishable under Sections 302, 307, 148, 302/149 of the Indian Penal Code, 1860 (in short the IPC). However the present appellant was convicted in terms of Section 304 Part II IPC and was sentenced to undergo rigorous imprisonment for three years. The State questioned the acquittal of the respondents as well as the conviction of the present appellant in terms of Section 304 Part II, IPC in place of the Section 302 IPC. The present appellant filed an appeal questioning the order of conviction. Both the appeals were placed together and disposed of by the common judgment.
(2.) The skeletal picture of the prosecution case as unravelled during trial is as follows: Village Saruali is consisted of three hamlets, namely, Gopal Sahi, Dehury Sahi, and Parida Sahi. There was no love-lost between the villagers of Gopal Sahi and Dehury Sahi on one hand and Parida Sahi on the other. The long standing enmity existed on account of a dispute over some forest land as such land was allegedly under the possession of the people of Dehury Sahi. Owing to such animosity the people of Dehury Sahi stopped rendering service to the people of Parida Sahi for the last 6 to 7 years preceding the occurrence. Since there was serious law and order problem, therefore there was a proceeding under Section 107 Cr.P.C. and several suits were pending between the people of Dehury Sahi and Parida Sahi. The respondents in Government Appeal belong to Parida Sahi whereas the victim as well as the prosecution witnesses belong to Dehury Sahi and Gopal Sahi. It was alleged that in the night of Kumar Purnima falling on 1.11.1982 the Dehury Sahi people had carried the image of Goddess Laxmi to the house of Bali Parida of Parida Sahi with whom Dehury Sahi people had developed some friendship. Therefore, the appellant-respondents who belong to Parida Sahi raided the house of Bali Parida.
(3.) On the following day i.e. on 2.11.1982 between 9.00 and 9.30 A.M. the respondents belonging to Parida Sahi being armed with lathis and four muzzle loading guns proceeded to Dehury sahi and on their arrival near the house of Banka Dehury the appellant - respondent No. 1 Batakrushna Parida fired a gun shot at Sahadev Dehury who was then engaged in washing his face in the backyard of Banka Dehury. After receiving such gun shot Sahadev fell down with bleeding injury and instantaneously died. Respondent Dibakar Parida fired another shot from his gun towards Chhota Dehury as a result of which the latter received injury in his knees. Respondent Sankar Parida fired a shot from his gun towards Gopal Sahi and the pellet from his gun, of course, hit on the forehead of Athani Das as a result of which Athani Das fell down under a Mahua tree. After the respondents fired three successive shots from their guns the villagers of Dehury Sahi chased them as a reason whereof the respondents ran hither and thither towards their hamlet 'Parida Sahi'. While they were running, on being chased by the prosecution witnesses, appellant Batakmahna Parida received a lathi blow by one Sikar Dehury (P.W.11) as a result of which the gun held by him fell down from his hand and Braja Dehury (P.W.9) picked up the said gun. Respondent Sankar Parida chased Sikar Dehury (P.W.11) to give him a push with the gun, but he managed to snatch away the gun from the hand of respondent Sankar Parida. Kusana Dehury (P.W.7) and one Kashi Behera chased respondent Lambodar Parida, but respondent Lambodar Parida fired a shot at them as a result which Kusana Dehury (P.W.7) sustained bleeding injury near his neck.;