SIKHAR BEHERA Vs. STATE OF ORISSA

JUDGEMENT

(1.) There are 14 appellants. They along with 25 others were tried for offences punishable under Secs. 302, 302/34, 302/149, 232, 324 and 324/149, I.P.C. The trial Court convicted 16 of them and acquitted the rest. On appeal, the High Court acquitted two of them namely A-2 and A-7 and convicted the rest. The 14 convicted accused have preferred this appeal.

(2.) The prosecution case is as follows : The accused, two deceased persons and the material witnesses belong to Villages Khajuria and Dimirisena. There was a longstanding dispute between the two parties regarding possession of the lands belonging to the deity installed at village Dimirisena. The deity owns 150 acres of lands out of which 100 acres were in possession of the tenants and the remaining 50 acres were being let out for bhag cultivation annually. The prosecution party claims that 40 families belonging to their party were in possession of those 50 acres of lands. Indra Kumar Patnaik, a trustee, entrusted the management of the affairs of the deity and its properties to the villagers of Dimirisena to which the prosecution party mainly belongs. There were Section 145, Cr. P. C. proceedings and a compromise and since then the prosecution party has been in possession of the land. The present dispute relates to the lands of the deity which are locally known as Panchamania lands, an area of 2.04 acres. In one of the plots, paddy was cut and just before the present occurrence, a proclamation under Section 144, Cr. P. C. was issued and both parties were restrained from going to the fields. The order under Section 144 was served on some of the accused and a notice under Section 107, Cr. P. C. also was served on the accused as to why they would not be called upon to execute bonds for keeping peace. On 28-11-74, P.W. 5 A.S.I. went to village Damirisena for serving the order under Section 144 and the notice under Section 107 on some of the other accused persons. When P.W. 5 read out and explained the contents of the order to the members of the prosecution party and wanted to serve the notice, but they refused to accept the same. The members of the accused party also refused. After refusing to receive the notice, a group of about 20 to 30 members of the prosecution party went to cut paddy from the Panchamania lands. Subsequently a group of about 15 persons of the prosecution party went towards the said lands for carrying the paddy sheaves. While the second group had proceeded up to the Kalapatriri burial ground they found that a group of 25 persons of the accused party going there with lathis, bhalis, tentas and other deadly weapons. The party was led by Mahant Gobinda Das. At the same time another group of 50 persons of the accused party came armed with various deadly weapons. The members of the accused party surrounded the members of the prosecution party. Mahant Gobinda Das fired a shot from the gun which hit Kulamani Dehera (deceased No. 1, a member of the prosecution party and he fell down on the ground. Then Gobinda Das snatched away a tenta from the hand of acquitted accused Chhaila Samal and stabbed deceased No. 1. Thereafter other persons assaulted him with deadly weapons as a result of which he died on the spot, When Kunja Samal (deceased NO. 2, came to the rescue of deceased No. 1, he was stabbed by A-16 as a result of which he fell down on the ground. Some of the other accused persons also assaulted deceased No. 2 as a result of which he became unconscious and subsequently died. In the course of the same incident, P.Ws. 2, 3, 4, 6, 7, 8 and 9 also received several injuries. P.W. 5, A.S.I. of Police, who was present on the spot, sent a report through a village servant on the basis of which a case was registered. All the injured persons were brought to Brahmagiri Hospital and the Medical Officer, P.W. 11 gave first aid and sent all of them to District Headquarters Hospital at Puri. P.W. 11 recorded Ex. P.4, the dying declaration of Kunja Samal, deceased No. 2. He also examined the injured witnesses. Later post-mortem was conducted over the dead bodies of the two deceased, The accused were arrested.

(3.) Daitari Behara, one of the accused persons, also gave a report on the basis of which a counter case was registered against 63 persons belonging to the prosecution party including the injured witnesses. In that case 40 persons were convicted under Sections 148, 324/149 and 323/149, I.P.C. Coming to the present case, the trial Court relied on the evidence of the injured witnesses and discussed their evidence in respect of each of the accused persons and ultimately held that 16 of them were members of the unlawful assembly and accordingly convicted the 16 accused as mentioned above and sentenced each of them to undergo imprisonment for life. In the trial Court, the convicted accused admitted their presence but asserted that they were in possession of the disputed lands and raised paddy thereon and coming to know that the prosecution party armed with deadly weapons were coming to cut the paddy forcibly, they also went towards the paddy fields. Seeing them the prosecution party attacked them and inflicted injuries on two of the accused persons. Having examined this plea, the trial Court held that the plea of the accused persons cannot be relied upon to determine as to how the occurrence took place. The trial Court also noted that the A.S.I., namely P.W. 5, gave a different story but the same can be relied upon as he was an independent witness. According to P.W. 5s version and as accepted (by ) the trial Court, the prosecution party had already got engaged in cutting paddy and seeing the accused party coming, the prosecution party ran towards them carrying their deadly weapons and there was a fight between both the parties. The learned trial Judge, however, found that the fight between the parties was not a sudden fight and that the parties went to the lands being armed with deadly weapons and each party had an intention to fight with the other. Then the trial Court proceeded to consider whether the accused party could get benefit of the right of private defence of property and person. The trial Court held that there is no clear proof that the accused persons were in actual possession of the disputed lands. The trial Court further observed that some members of the accused party received injuries which were not explained by the prosecution Ultimately, the trial Court held that the accused were members of the unlawful assembly and they were responsible for causing the death of the two deceased persons and for inflicting a number of injuries on the witnesses which were more grave and serious in comparison to the minor injuries received by the accused party. In this view of the matter, the trial Court held that the accused intentionally caused the death of the deceased persons with cutting weapons and they had gone to the fields with a view to fight and also assault the prosecution party and even to cause death and ultimately convicted the 16 accused whose presence was established.