D.G.R.PATNAIK, J. - (1.) BOTH these appeals separately preferred by the appellants against a common judgment and order of conviction and sentence were heard together and are being disposed of by this common judgment.
(2.) THE appellants were charged with, tried and convicted for offences under Sections 302/149, 307/149 and 148 of the Indian Penal Code, and sentenced to undergo life imprisonment, besides payment of fine, for offences under Sections 302/149 IPC, and sentenced to undergo rigorous imprisonment for ten years for offences under Section 307/149 of the Indian Penal Code. The gist of the charge against the appellants is that on 18.11.1995 they along with others had formed an unlawful assembly armed with lethal weapons and had assaulted the informant Malkan Sai, his daughter Chanchal Kumari and his son Loknath Sai causing serious injuries to the informant and fatal injuries to his two children. The case was registered on the basis of ford beyan (Ext. 7) of the informant Malkan Sai (PW11) recorded at 7.30 a.m. on 19.11.1995 by the police officer (PW13) at Chandwa. The investigation was taken up by the police against six accused persons named in the FIR. Two out of them had absconded while the present four appellants had faced trial.
(3.) THE case of the prosecution, in brief, is that a land dispute was persisting between the informant (PW11) and the appellant Amrit Sai, Jamuna Sai and Baleshwar Sai. The dispute was also in respect of purchase of kerosene oil from the shop of the informant. Further accusation was made by the appellants and members of their family against the informant claiming that he had practiced witch -craft and as a result of which the wife and a child of accused Birua Lohar (absconding) had died. It is alleged that in the evening of 18.11.1995 at 7.00 p.m. the informant (PW11) went to the house of his neighbour Kail Sai to engage some labourers and while he was returning home, he was ambushed on the way by the appellants, who were armed with Tangis in their hands. The appellant Amrit Sai attacked the informant with tangi and when the informant turned about, the blow struck on his chest. He fled away raising alarms to the house of Kail Sai and entered into the house. He was followed and chased by the appellants upto the door of Kail Sai who misled them by pointing towards another direction. The assailants thereafter came to the house of the informant and searched for him, and on not finding him there, they assaulted the informant's wife with blunt portion of the tangi and in the same transaction, they assaulted the informant's daughter Chanchal Kumari, aged 10 years who was sleeping on a mat and also assaulted the informant's son Loknath, aged 15 years. After the assailants had left the house of the informant, the later, along with Kail Sai, came to his house and found his daughter Chanchal Kumari and Son Loknath lying dead. Due to late hours of the night and in fear of further attack, he could not come out of his house. However, information was conveyed to the village chaukidar on the next morning and the informant went to the State dispensary for treatment of his injuries. On receiving the O.D. Slip from the hospital, the police officer of Chandwa Police Station came to the hospital and prepared an inquiry slip asking the doctor to provide medical treatment to the injured where -after the informant was given medical treatment. The fard beyan of the informant was also recorded at the State dispensary. After registering the case, the police officer proceeded to the place of occurrence. Dead bodies of the son and the daughter of the informant (PW11) were found in the house of the informant and a blood stained tangi was recovered by the police officer from within the courtyard of the informant. After preparing the inquest report of the dead bodies, (Ext 6 and 6/1), and preparation of seizure list (Ext.5), the investigating officer forwarded the dead bodies to the hospital for post mortem examination. Autopsy on the dead bodies were conducted by Dr. R.N. Sharma (PW5) who, on examining the dead body of Chanchal Kumari, had found the following ante mortem injuries on her body: Ante mortem incised wound on the right side of abdomen measuring 4'x2'x1' caused by sharp cutting weapon like a tangi; (i) Fracture of right humerous caused by hard substance; (ii) Intestine protruding out of the wound from abdomen; (iii) Peritoneum was found cut. Cause of death in the opinion of the doctor was shock and hameorrhage due to abdominal injuries. The doctor had also found the following ante mortem injuries on the dead body of the deceased Loknath Sai: (i) incised wound on the left side of neck 4'x2'x2' (ii) incised wound on back measuring 1'x 1/4 'x 1/8' and 1/2 'x 1/4' x 1/8'. All injuries were caused by sharp cutting weapon. Cause of death in the opinion of the doctor was haemorrhage due to neck injury. The doctor has further opined that time elapsed since death was within 12 to 24 hours prior to autopsy.;