Judgment:
Pradeep Kumar, J.
1. This appeal is directed against the judgment of conviction and order of sentence dated 4-9-2001 passed by Shri Prabhu Nath Lal, 1st Additional District & Sessions Judge, Seraikella in Sessions Trial No. 03 of 1996 against the appellants namely Shano Singhdeo and Birbal Gopal by which both the appellants have been found guilty for the offence Under Section 326/34 and 307/34 of the Indian Penal Code and sentenced them each to undergo R.I. for 7 years and to pay a fine of Rs. 5,000/- each and in default of payment of fine, they will further undergo S.I. for 3 months.
2. The prosecution case was started on the F.I.R. given by the informant (P.W.3), Abhimanyu Nayak on 8-3-1993 at 14.45 hours stating therein that on the same day at about 2.30 in the after noon, after playing holi, he along with Baijnath Behera and Dilip Kumar Pali alias Kalia Pati were going towards the river for bath and when they reached near the Jagannath Temple, then suddenly the appellants/accused namely Birbal Gopal and Shano Singhdeo along with one unknown person came and there upon the accused Shano Singhdeo stated that 'he is Baijnath Behera, kill' him'. Where upon all the accused persons caught hold of Baijnath Behera and accused Birbal Gopal who had a 'Murga Kati' (sharp cutting weapon) in his hand gave a blow in his stomach. Due to the injuries his intestine and other things came out. The informant and his colleagues wanted to catch hold the accused persons, but they ran away. When they were taking the injured Baijnath Behera, then the police came there and he gave his statement. On the basis of the said fardbeyan police registered a case Under Section 341, 326, 307/34 of the I.P.C. and after investigation, police submitted charge sheet Under Section 307, 324/34 of the I.P.C. Since the case was exclusively triable by the court of Sessions, therefore learned A.C.J.M. took cognizance of the case and committed the case to the court of Sessions. Finally the case was tried before the 1st Additional Sessions Judge, Seraikella who after trial found the accused guilty and convicted and sentenced them as aforesaid.
3. In course of trial, the prosecution has examined seven witnesses. P.W. 1 is Gopal Chandra Dash who is a formal witness, who has proved the signature of Investigating Officer, Anil Kumar on the fardbeyan. P.W. 2 is the injured Baijnath Behera. P.W.3 is Abhimanyu Nayak , the informant of the case who has been declared hostile and not supported the prosecution case. P.W. 4 is Ashim Khandait, who has also been declared hostile and not supported the prosecution case P.W. 5 is Parthosarathi Gope who has been declared hostile and not supported the prosecution case. P.W.6 is Dr. Murlidhar Das, who has examined the injured Baijnath Behera and proved the medical report. P.W.7 is Dilip Kumar Pati, who was tendered for cross examination, but nothing was asked from him.
4. It is submitted by the learned Counsel for the appellants that the prosecution case is not supported by any of the witnesses except P.W.2, Baijnath Behara and P.W. 6, Dr. Murlidhar Dash. Learned Counsel for the appellants has submitted that as far as appellant No. 1 Shano Singhdeo is concerned, the injured P.W.2 has given a contradictory evidence from what has been given in the fardbeyan by the informant and as such it is difficult to accept that the appellant No. 1 had a common intention to commit murder of the injured, Baijnath Behera. Moreover, the prosecution has failed to prove that there was any motive for causing any injury on the person of Baijnath Behera either by the appellant No. 1 or even appellant No. 2.
5. On the other hand learned Counsel for the State has submitted that evidences of P.W.2 and P.W.6 fully supported the prosecution case that both the appellants had a common intention to commit the murder of the injured, Baijnath Behera and with that intention a fatal injury was caused by 'Murga Kati' ( sharp cutting weapon) on the stomach of the injured and the learned court below has rightly found the appellants guilty and convicted and sentenced them as aforesaid.
6. After going through the prosecution case and the evidences, 1 find that although the prosecution has examined seven witnesses, but none of the witnesses have supported the prosecution case except P.W.2, Baijnath Behera the injured and the doctor, P.W.6 Murlidhar Das. PW .2 in his examination has stated in the court that on the date of occurrence i.e. on 8-3-1993 when he was going with his friend Abhimayu and Dilip for taking bath after holi and when they reached near Jagganath Temple, then suddenly accused Birbal Gopal alias Birbal Gope and Shano Singhdeo along with one unknown person came there. Accused Shano Singhdeo stated that 'he is Baijnath'. He caught hold of him and there after by a 'Murga Kati' (Sharp cutting weapon) accused Birbal Gopal inflicted injury on his stomach. When Abhimanyu and Dilip were taking him to the hospital, then police came there and took him to the Seraikella Hospital in police jeep from where he was sent to the Tata Main Hospital. In his cross examination, he has stated in para 2 of his deposition that he knew Shano Singhdeo and Birbal Gopal from before. He has also stated that he had no fight with Shano Singhdeo from before. In para 5 he has stated that on hulla other people also assembled there.
The next evidence to be considered is that of the doctor Murlidhar Das, P.W.6 who has examined the injured on 8-3-1993 at 3 p.m. and found incised wound on the entire wall of the abdominal cavity and whole of small intestine are outside of the abdominal cavity. The length of the wound is 81 /2' X 4' X abdominal cavity whole. In his opinion the injury was caused by sharp cutting weapon and it was sufficient to cause death.
7. Thus, after going through the evidence of these two witnesses, it is clear that the injury which was sufficient to cause death was inflicted by Birbal Gopal, but as far as appellant No. 1, Shano Singhdeo is concerned, the prosecution has failed to prove beyond reasonable doubt that he had common intention to inflict the said fatal injury on the person of the injured, Baijnath Behera. The informant had turned hostile in the court while examined as P.W 3. He has stated in the fardbeyan, Ext. 1 that Shano Singhdeo, after identifying the injured Baijnath Behera, gave a call to Birbal Gopal to kill him, but the injured, Baijnath Behera, himself when he was examined as P.W.2, only stated that Shano Singhdeo caught hold of him and there after fatal injury was inflicted by Birbal. He cannot say that a call to commit his murder was given by Shano Singhdeo. In that view of the matter, since, there is no corroborative evidence available in the record, it is difficult to say that the appellant No. 1, Shano Singhdeo had any common intention to commit murder of the injured, P.W.2, Baijnath Behera or to inflict a fatal injury on the body of the injured.
7A. In that view of the matter, appellant No. 1, Shano Singhdeo is entitled to get benefit of doubt which is given to him and he is accordingly acquitted from the charges levelled against him.
8. However, although it has been submitted that the appellant No. 2, Birbal Gopal died on 25th of April 2008, but there is no document on record and as far as evidence against him is concerned, the evidences of P.W.2 and P.W. 6 clearly shows that he with intention to cause fatal injury on the stomach of he injured gave a blow by 'Murga Kati' to P.W. 2, Baijnath Behera and as such he had rightly been found guilty Under Section 307, of the I.P.C. and sentenced to undergo R.I. for 7 years. The appeal of appellant Birbal Gopal is accordingly dismissed. The learned trial court is directed to issue warrant of arrest against him and his bail bond is cancelled. However the appeal of Shano Singhdeo is allowed and he is discharged from the liability of his bail bond.
9. Accordingly, the appeal is allowed in part.