GADADHAR PATI Vs. BANSHIDHAR PATI

JUDGEMENT

(1.) The appellate modifying judgment is under challenge in this revision.

(2.) The parties are step brothers being the sons of same father and their houses were adjacent to each other in village Katijhuri, P. S. Baisinga, district Mayurbhanj. The opposite party, as complainant, filed the complaint on 9- 7-1982 alleging that there was a partition of their ancestral properties long long ago between him and the petitioner and they were in separate possession of their respective shares and that on 6-7-1982 at about 7 a.m. while the complainant was performing his routine morning duties, the petitioner approached him in a furious mood making allegation of uprooting the fence and the pillars erected by him. It was also alleged that when the opposite party replied that he had merely mend the fence, the petitioner abused him in filthy language and came rushing with a sword, which he got from his house in the meanwhile, shouting on the way to kill him and out of fear the opposite party ran in to his house being chased by the petitioner and bolted the entrance door from inside. It was further alleged that the petitioner remained outside the door for sometime and thereafter disappeared hurling threat of killing him in the event of his coming out of the house. On the next day, the petitioner lodged information at Baisinga Police Station which was entered in the station diary, but as per direction of the police the complaint was filed in court and cognizance of the offences punishable u/ Ss. 352, 504 and 448, IPC was taken.

(3.) The petitioner, while denying the charges, attributed prior enmity to the filing of the complaint. During his examination under S. 313 Cr. P.C. his specific defence was that the opposite party had been to Baripada to execute a registered sale deed in respect of ancestral land to which he objected and the same was the immediate cause for filing of the complaint. Two witnesses were examined on his behalf. D.W. 1 Kati Majhi was examined to say that in the year in question in the month of Shravan he worked in the land of the complainant as a labourer with P.W. 2, and others. D.W. 2 Chandramani Chowdhury, the sister of the complainant was examined to say that in connection with the marriage of her son which was held on the last Wednesday of the month of Asadha last year the accused had gone to her house Dhanghar under Khunta Police Station on the preceding Monday and he had gone to Baripada on Tuesday to arrange a car for the marriage ceremony.