PADMAN MEHER Vs. STATE OF ORISSA

JUDGEMENT

(1.) Padman Meher and his son Bhagabat Meher who were tried along with Bidhu Meher on a charge under Section 302 read with Section 34 Indian Penal Code and acquitted by the learned Sessions Judge of Bolangir Kalhandi but, who were convicted, on appeal by the State by the High Court of Orissa under Section 302 read with Section 34 and sentenced to imprisonment for life are the appellants in this appeal. The case of the prosecution briefly was that the appellants were in possession of and cultivating the lands of the deceased Narayan and his uncle P. W. 1. P. W. 1 was living in a different village from his childhood and it was for that reason his lands were being cultivated by his relatives, the accused. The deceased had sold some and leased out the rest of his lands to the accused. A few months before the occurrence P. W. 1 came to the village and got a Panchayat convened to recover possession of his lands. He also petitioned to the Gram Panchayat. In this petition he made allegations against the deceased also. However, according to the case of the prosecution P. W. 1 and the deceased were making common cause against the accused. On September 6, 1969 at about 5 a. m. P. W. 1 and the deceased went to one of the lands in dispute for the purpose of cultivating it. After sometime P. W. 1 returned home for a bath leaving the deceased in the field. After bathing, P. W. 1 again went to the field. He found the accused assaulting the deceased. Padman was attacking him with a Tangia (axe) and Bidhu was attacking him with a lathi while Bhagabat was standing near with a spear in his hand. He raised a cry whereupon the accused persons left the place. He went near the deceased. The deceased told him that the two appellants and the son-in-law of the first appellant whom he did not name, had attacked him. P. W. 1 then gave some water to the deceased and went to the village. He informed P. W. 7, the Member of the Panchayat about the occurrence. P. W. 7, P. W. 8, the wife of the deceased, and others came to the scene of occurrence. The deceased repeated the statement which he had made to P. W. 1 to P. Ws. 7 and 8 also. P. W. 1 then went to the Police outpost at Lachhipur and gave a report. The Assistant Sub-Inspector made an entry in the Station Diary and forwarded it to the Officer-in-charge of the Police Station at Dungripali. The Sub-Inspector went to the village, held inquest over the dead body (the deceased having died in the meanwhile), and arranged to send the body for post-mortem examination.

(2.) At the trial the prosecution examined P. Ws. 1 and 4 as eye-witnesses to the occurrence and also relied upon the oral dying declarations made to P. Ws. 1, 7 and 8. The learned Sessions Judge found that the prosecution had failed to establish its case beyond reasonable doubt and acquitted the accused. The State preferred an appeal against the order of acquittal. On a reappraisal of the evidence, the High Court confirmed the acquittal of Bidhu Meher but convicted the two appellants as mentioned above.

(3.) The question for consideration is whether the Sessions Judge had taken such an unreasonable view of the evidence that the High Court was justified in interfering with the order of acquittal. One crucial circumstance upon which the learned Sessions Judge placed considerable reliance was that the nature of the injuries sustained by the deceased was such that it was impossible for him to have made the dying declarations attributed to him by P. Ws. 1, 7 and 8. The medical evidence shows that the deceased suffered several injuries, of which injury No. 5 was as follows :