Dhaneshwar Mahakud And Ors vs State Of Orissa

The appellants herein namely, Dhaneshwar Mahakud, Ganeshwar Mahakud, Dasratha Mahakud and Kamala Kanta Mahakud (originally A-2 to A-5) alongwith two other persons, namely, Pitabash Mahakud (A-1) and Sanjeeb Kumar Mahakud (A-6) were tried for the offences punishable under Sections 148, 302/149 and 323/149 of the Indian Penal Code (IPC). The Court of Sessions convicted and sentenced all the six accused to undergo life imprisonment for causing death of two persons, namely, Biswanath Barik and Umakant Barik. In an appeal filed in the High Court, A-1 and A-6 were acquitted, whereas the accused appellants (A-2 to A-5) were not found guilty under Sections 148 and 149, IPC, but their conviction under Sections 302 and 323, IPC and the sentence of life imprisonment for the offence under section 302 IPC was confirmed. No separate sentence had been passed under Section 323 IPC. The appellants, are therefore, before this Court challenging the order of the High Court.

The brief facts of the case are as follows: As per prosecution version, on 23rd March, 1992 at about 7.30 a.m., Dhaneshwar (A-2) Ganeswar Mahakud (A-3), Dasratha Mahakud (A-4) and Kamala Mahakud (A-5), the appellants herein, went to the disputed piece of land situated by the side of Palasapanga-Bamebari road located in village Malda. Dhaneshwar Mahakud and Ganeswar Mahakud were carrying crowbars, whereas Dasratha Mahakud and Kamala Mahakud were armed with axes. They started digging pits in order to fix pole therein for construction of a shop house. Umakant Barik (deceased) along with Kanduru Barik (his father) and Biswanath Barlik (deceased) (his uncle) reached the spot and objected to the said act of the accused persons. On this, they were assaulted by the accused persons with crowbars and axes resulting in the death of Umakant Barik and Biswanath Barik and causing injuries to Kanduru Barik (PW-7). The incident was witnessed by Mangaraj Barik (PW-5), a hotel owner, who was having his hotel nearby the place of incident. At about 9.00 a.m., Sankhali Barik (PW-1), relative of the deceased, lodged the FIR in Joda Police Station that about 8.00 a.m. while he was coming from Village Bamebari, on his way he saw his uncle's son Umakant Barik lying dead in an open field and there were several cut injuries on the head and face of Umakant Barik. The body of Biswanath Barik was also lying dead in a pool of blood who had sustained injures on different parts of his body including head. He saw the wife and daughters of his uncle sitting and crying near the dead bodies.

The prosecution has mainly based its case on the evidence of two eye witnesses, namely, Mangaraj Barik (PW-5) and Kanduru Barik (PW-7) and the statements of the doctors who performed the autopsy on deceased Umakant Barik and Biswanath Bairk, namely, Dr. Bibhuti Bhusan Mohanty (PW-4) and Dr. Surendranath Sahu (PW-6) The plea of the accused persons is of complete denial to the alleged allegations set forth against them. It is the case of the accused Kamala Mahakud, as is evident from his statement recorded under Section 313 Cr. P.C., suggestions put to the prosecution witnesses in their cross- examination and the evidence of Nandu Munda (DW-3), that while he was engaged in the construction of a shop room over his land and for the said purpose was dagging pits to fix poles, the deceased persons along with injured (PW-7) armed with deadly weapons came to the spot and attacked him and in order to save his life he whirled the axe which he was holding whereby the deceased persons sustained injuries and died. In short, Kamala Mahakud pleaded right of self-defence and property, whereas Dasratha Mahakud by examining DW-2 (Bimbadhar Mahanta) had set up the defence of alibi.

Internal injuries

3. Injury no. 3 has damaged the nasal bones and the surrounding tissues extensively.

5. All the injuries are covered with blood clots and are antemortem in nature.

Internal Injuries The internal injuries of the deceased correspond to the external injuries described.

2. Abrasion of 4cm. x 3cm. x 1/4 cm. Over the left ancillary area on the 5th and 6th of the thoracic ribs.

The nature of injuries sustained by the deceased clearly indicates the intention of the accused-appellants to do away with the deceased. The evidence of the witnesses along with the injuries reported in post-mortem reports clearly bring out the common intention of the accused-appellants and we do not think that the accused-appellants would be prejudiced merely because the charge was framed under Section 302 read with Section 149, IPC and not under Section 302 read with Section 34, IPC. From the evidence of two witnesses, PW-5 and PW-7, it would appear that the accused appellant shared the common intention to cause death of victims.

In overall consideration of the evidence, we find no infirmity in the conviction of the accused, appellants. We, however, convict and sentence the accused-appellants under Section 302 read with Section 34, IPC for life imprisonment instead of Section 302 simpliciter.

The appeal is dismissed in the above-said terms.