The bones underneath the said injuries i.e. frontal are fractured into many pieces and there is companylapse of the texture of the cranial cavity.
The High Court has recorded the findings in the appeal preferred by the accused, that PW 5 who was the owner of hotel nearby the place of occurrence was a natural witness to incident and PW 5s statement is companyroborated by the evidence of injured eye witness PW 7 .
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.
PW 6, who companyducted the post mortem of deceased Umakant, opined that the injuries were sufficient in the ordinary companyrse of nature to cause death and were homicidal in nature.
Both of them died on the spot.
Injury number.
The accused Dasratha was bringing poles in order to fix the same in the pits dug by the accused persons over their land.
The statement of Kanduru Barik PW 7 , who was an injured eye witness, totally supports the evidence of PW5.
Injury number 6 has caused the fracture of right maxilla and mandible into many pieces and damaged the vessels.
Accused Dasaratha dealt another stroke of axe over the head of Biswanath.
PW 4, who companyducted the post mortem of deceased Biswanath, opined that the injuries sustained by the deceased were homicidal in nature.
It is the case of the accused Kamala Mahakud, as is evident from his statement recorded under Section 313 Cr.
Lacerated injury on the right eye of the size of 1/12x1 and 4 depth damaging it companypletely i.e., the right eye.
He disposed that when they went to take tiffin to the hotel of PW5, they found that the accused persons Kamala Mahakud and Dhanu Mahakud were digging pits over their land.
Over the left ancillary area on the 5th and 6th of the thoracic ribs.
1 and 4 have damaged the left and right eyes and the under line bones.
Incised wound 2 x 1/3 on the middle aspect of pinna of right ear across the cartilage.
Lacerated injury of 2 x 1 on the tip and middle of numbere about 1 depth damaging the middle septa of numbere and the tip of the same.
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 companyplete denial to the alleged allegations set forth against them.
He also denied that just at the spur of the moment accused Kamala in order to save his life whirled the axe which he was holding and the deceased persons and injured came across and sustained injuries.
One lacerated injury 3x1 x scalp depth present one inch above the first injury on left side of the fore head companymunicating to the cranial cavity.
They started digging pits in order to fix pole therein for companystruction of a shop house.
He saw that his son Umakant went over the land and challenged the accused persons for their act also tried to take out the poles fixed by the accused persons.
When he intervened and separated his son Umakant and dragged him to a distance of 10 ft.
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.
the accused persons Dasaratha Dhanu Kamala and Pitabas chased him in order to assault and then he saw that the accused persons assaulted his son Umakant by means of axe and on receiving injuries he fell down.
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 companying from Village Bamebari, on his way he saw his uncles son Umakant Barik lying dead in an open field and there were several cut injuries on the head and face of Umakant Barik.
The incident was witnessed by Mangaraj Barik PW 5 , a hotel owner, who was having his hotel nearby the place of incident.
These companyld be caused by handle of the axe.
The injures on the deceased companyld be possible by the sharp edge of the axe and crowbar.
The accused Ganesh Mahakud and Dhaneshwar Mahakud who were holding crowbars, assaulted the deceased Biswanath when he was lying on the ground.
The trial companyrt did number accept the right of private defence pleaded by Kamala Mahakud A 5 .
The High Court has also found support to the version of these witnesses from the evidence of Nand Kishore Dandasena PW 8 , residing at a distance of 200m. from the hotel who had companyfirmed the presence of the accused appellants at the place of occurrence.
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 .
However, on the basis of the evidence led by the prosecution, the High Court has held that the offence under Section 302 IPC was found proved against the accused appellants and companyvicted them on the basis.
Dr. Raghunath Hembram PW 11 , who examined PW 7, opined that the injuries were simple in nature and companyld possibly be caused due to rough object.
Just at that time, accused Kamala who was having the axe rushed towards the deceased Biswanath and gave one stroke of axe over his head.
Biswanath fell down.
The accused caught hold of the neck of his son Umakant and his brother Biswanath challenged the accused persons.
On dissection of skull, there is fracture of the frontal bone of both side and also there is fracture of parietal bone.
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.
All the injuries are companyered with blood clots and are antemortem in nature.
The injured eye witness, Kanduru Barik PW 7 had suffered the following injuries.
Accused Dhanu Mahakud gave piercing blow of crowbar over the head of Biswanath.
His son told them that before fixing the poles they should utilize the services of an Amin for demarcation of the land to find out the true position and they should have fixed the poles thereafter.
From the statements of these witnesses, it is clear that when the accused person were digging pits for fixing the poles, the companyplainant party reached to the spot, Umakant Barik approached the accused appellants and restrained them from doing the act and asked them to get the measurement done by the Revenue Authority before putting poles, at that juncture one of the accused caught hold of his companylar, to save him his uncle Biswanath reached to the sopt and they were attacked by the accused appellants simultaneously using the axe and crowbars which they were holding.
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 companystruction 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.
The injuries companyld be caused by heavy sharp cutting weapon like axe.
Thereafter, all the accused person assaulted Umakant on different parts of his body by means of axe, crowbar and lathi with which they were armed and then the accused fled away.
The same were fatal and were sufficient in the ordinary companyrse of nature to cause death.
Injury number 3 has damaged the nasal bones and the surrounding tissues extensively.
In his cross examination, the only thing which was brought out is that he stated before the police that the accused Ganesh Mahakud was bringing poles by means of a bullock cart and the accused Dhanu was digging pit and the accused Kamala Makahud was also digging pit.
Thereafter, the accused Kamala attacked with the axe over the right side of Biswanath.
The version of the prosecution was supported by medical evidence of Dr. Bibhuti Bhusan Mohanty PW 4 and Dr. Surendranath Sahu PW 6 .
On that, they left the hotel.
x 1/4 cm.
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.
Incised wound 1 3/4 x on the front parietal area on the left side.
Biswanath, Umakanta and injured Kanduru and one Raghaba PW2 being armed with weapons came to the spot and tried to attack the accused person.
The doctors found the following injuries on dead bodies of Umakant Barlik and Biswanath Barik Injuries on the dead body of Umakant Barik as found by PW 6 on post mortem External Injuries One lacerated injury 3x 1 scalp deep present on medial angle of the left eye damaging the left upper eye lid and eye ball and companymunication to the cranial cavity.
Internal Injuries The internal injuries of the deceased companyrespond to the external injuries described.
The plea of alibi taken by Dasratha Mahakud A 4 was also rejected and companysequently verdict of guilt was recorded.
When the right of self defence of Kamala Mahakud was put to this witness, he specifically denied that while the accused persons Kamala and Dhanu were digging pits to fix poles, the deceased persons viz.
The bone chips were there inside the brain matter.
He saw the wife and daughters of his uncle sitting and crying near the dead bodies.
Injuries on the dead body of Biswanath Barik as found by pw 4 on post mortem External Injuries One incised wound 1 3/4 x 3/4 on the frontal area of the head of right side.
The deceased Biswanath and the injured Kanduru, uncle and father, rushed to the spot to rescue Umakant.
Lacerated injury of 3x2x2 on right cheek 2 lateral to the numbere under which there is fracture of right maxilla and mandible bones.
Dhaneshwar Mahakud and Ganeswar Mahakud were carrying crowbars, whereas Dasratha Mahakud and Kamala Mahakud were armed with axes.
PW 7, father of Umakant, who was trying to take Umakant from the place, was attacked by Kamala over his head from the back side of the axe and Kamala also attacked Umakant by axe on his head.
There was laceration of the brain matter with haemorrhage involving both hemispheres.
Biswanath Barik was attacked first and thereafter the attack was directed towards Umakant Barik.
Lacerated injury of 2 x 1 x 4 on the right side of forehead just above the right eye companymunicating freely to the brain cavity.
Internal injuries Injury number.
Biswanath fell down.
1, 2 and 5 companymunicate freely to the brain i.e. cranial cavity through which brain matter is companying out.
The trial companyrt relying on the evidence of pw 1, Pw 5 and pw 7 companycluded that intention was apparently to cause death of the deceased and cause injuries to Kanduru Barik.
The appellants, are therefore, before this Court challenging the order of the High Court.
P. NAOLEKAR J. 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 .
