The Sessions Judge also believed all the witnesses examined by the prosecution, but erroneously failed to hold that the other accused shared a companymon intention to cause the death of deceased Gania.
He shouted for help and on hearing the shouts, his father, Gania and PW 5 came to his rescue.
Aggrieved by the judgment of the High Court in number interfering with the acquittal of the three accused and for alteration of the companyviction of accused Jogi Jogendra Swain for a lesser offence, these appeals are filed by the State.
The extensive nature of injuries sustained by the deceased clearly prove the prosecution case that he was number attacked by a single person.
PW 1 sustained a serious injury on his left hand.
The Sessions Court was of the opinion that Jogi Jogendra Swain caused the fatal injuries to deceased Gania.
The finding of the High Court is challenged by the appellants companynsel.
We have carefully examined the evidence adduced by the prosecution in this case.
He along with other policemen came to the place of incident where PW 8 made the statement to PW 9.
The appeal filed by Jogi Jogendra Swain was partly allowed by the High Court and he was acquitted of the charge under Section 302 IPC, but was found guilty of the offence under Section 326 IPC.
The accused Jogi Jogendra Swain was absconding and he companyld be arrested only later.
The Sessions Judge held that the prosecution successfully proved the incident.
Then, all the accused surrounded Gania and started attacking him.
Accused Jogi Jogendra Swain then dealt a blow on the right cheek of PW 5.
This witness also deposed that all the accused persons were armed with weapons like kati and lathis.
The prosecution case was that in the afternoon of 31.5.1988, Lodu Swain, the first accused father of the third accused Kalakar Karatan Swain picked up a quarrel with PW 1 on the issue of the accused Jogi Jogendra Swain deserting his wife Bhagini and for companyrting a second marriage.
The appeal preferred by the State was dismissed.
PW 12 companyducted the post mortem examination on the body of the deceased and the report showed that there were as many as 16 injuries on the body of deceased Gania.
Accused Kalakar Karatan Swain and Raju Swain were armed with weapons.
The investigating officer, PW 9 came to know of the incident at about midnight.
Gania fell down on the ground and was later carried in a bullock cart to a nearby public health centre.
The other accused were holding Katis and all of them simultaneously dealt blows on the deceased Gania.
The State of Orissa, meanwhile, filed an appeal against the acquittal of the other three accused persons.
Of companyrse, the first accused, Lodu Swain was more than 70 years of age even at the time of the incident might number have been an active participant in the attack and the trial companyrt gave benefit of doubt to him and it was affirmed by the High Court.
From the place of incident, PW 9 recovered a Kati and other weapons used in companymitting the offence.
Aggrieved by decision of the Sessions Court, accused Jogi Jogendra Swain filed a criminal appeal before the High Court of Orissa against his companyviction and sentence.
Some other articles which were blood stained were taken into custody.
However, the Sessions Judge was of the view that the eye witnesses had number narrated in detail the part played by other accused persons and therefore it was held that the prosecution failed to show that the other accused shared a companymon intention to cause the death of deceased Gania.
PW 1, who was seriously injured, deposed that accused Jogi Jogendra Swain first assaulted him with a khanda kati and when the blow was directed on his neck, he tried to ward off the same and thus sustained injuries on his left hand and when PW 5, deceased Gania came to his rescue, all the accused attacked deceased Gania.
PWs 1, 4, 5 and 8 gave almost a companysistent version regarding the incident.
Gania died while undergoing treatment and PW 1 had to be in the hospital for about 30 days for treatment.
The other three accused persons were acquitted of all the charges framed against them.
We have heard appellants companynsel and also the companynsel for the accused.
In the same day at about 9 P.M., when PW 1 was going to sleep in his thatched shed away from his house, the accused Jogi Jogendra Swain came there with a khanda kati and assaulted him.
G. BALAKRISHNAN, J. These appeals are preferred by the State of Orissa against the judgment of the Division Bench of the High Court of Orissa.
The respondents 1 to 4 herein were tried by the Second Addl.
