DAMAN BHOI Vs. STATE

JUDGEMENT

(1.) THE appellants have challenged the judgment dated 3 9 1991 passed by Shri S. K. Patel, Sessions Judge, Balangir in Sessions Case No 84 of 1990 convicting them under section 307/34 of the Indian Penal Code (for shott 'I.P.C.') and sentencing appellant Mangan Bhoi to undergo rigorous imprisonment for ten years and to pay a fine of Rs.2,000.00, in default to undergo rigorous imprisonment for one year more; appellant Daman Bhoi to undergo rigorous imprisonment for five years and to pay a fine of Rs.1,000.00, in default to undergo rigorous imprisonment for six months more and sentenc ing appellants Kiaban Bhoi and Asadhu Manhira to undergo rigorous imprisonment for two years and to pay a fine of Rs. 500.00 each, in default to undergo rigorous imprisonment for further three months. Since appellant Mangan Bhoi expired on 1 3 1992 as per the report of the Sessions Judge, Balangir, his name has been deleted from the Memo of Appeal vide order No. 6 dated 6 4 1998 of this Court.

(2.) PROSECUTION case, briefly stated, runs as follows : The informant (p.w. 1) who belongs to Scheduled Caste community had been given a piece of land measuring Ac. 1.78 decimals bearing Holding No. 66/22 appertaining to plot No. 447 under Welfare Scheme in Mouza Palabandha under Tarabha police station in the undivided district of Balangir. In the morning of 19 6 1990 while the informant was ploughing his land, the appellants whose land adjoins the land of the informant went there and prohibited him from ploughing the land and assaulted him by means of axe and lathis, as a result of which the informant fell down and became unconscious. The minor son of the informant (p. w. 2) who was present at the spot rushed to his bouse and informed his mother (p. w. 3) about the assault on p. w. 1. P. w. 3 rushed to the spot and removed unconscious p. w. 1 to the house and administered water on him. After some time p. w. 1 regained consciousness and went to Tarabha police station and lodged the F. I. R. (Ext. 7) at 11 a.m. before the O. I. C. of the police station (p. w. 11) who registered the case and lookup investigation. During investigation p. w. 11 examined witnesses, sent the informant for medical examination to Tarabha P. H. C., searched tbe bouses of the accused persons and seized the axe (M. O. I) from the house of deceased appellant Magan Bboi, one bamboo lathi from tbe house of Chandrasekhar Bboi who was named as an accused in the F. I. R., one bamboo lathi from the house of appellant Kiaban, one wooden lathi from the house of appellant Daroan and one wooden latbi from the house of appellant Asadhu Manhira. He also seized one plough on production by one Linga Nag and and left the same in the Zima of one Basudev Nag. He arrested the accused persons on 21 6 1990 and forwarded them to court in custody. He also seized bloodstained cloth of the informant and requisitioned the services of the Revenue Inspector, Kamsara for demarcation of the disputed land. He sent the seized axe (M. O. I) to tbe medical officer for his examination and opinion. After completion of investigation he submitted chargesheet against the four appellants who stood their trial. The I. O, did not send up Chandrasekhar Bboi and Chandramani Bhoi who had been named as accused persons in the F.I.R. for trial. The defence took the plea of denial and right of private defence.

(3.) MR . N. C. Pati, learned counsel appearing for the appellants, and the learned Addl. Standing Counsel for the State were heard at length. While Mr. Pati contended that the impugned judgment of conviction is unsustainable in law due to improper and incorrect appreciation of evidence on record, learned Addl. Standing Counsel supported the impugned judgment.