PICHARU BHATI Vs. STATE OF ORISSA

JUDGEMENT

(1.) APPELLANTS 1 to 8 in Criminal Appeal No. 38 of 1962 are respectively respondent Nos. 1 to 8 in Government appeal No. 20 of 1962. They have been convicted under Section 148, I.P.C. and each has been sentenced to R.I., for one year thereunder. Accused No. 1 (Picharu Bhati) has been further convicted under Section 324, I.P.C. and sentenced to R. I. for 1 years. Accused No. 2 (Banshi Bhati) has been further convicted under section 304, Pt. II, I.P.C. and sentenced to R.I. for 4 years. Accused No. 3 (Rajaram Dinda) has been further convicted under Section 325, I.P.C. and sentenced to R. I. for 3 years - (though imposition of fine is compulsory under Section 325, no fine has been imposed on him). Accused 4 (Bhaira Bhati) has been further convicted under Section 323, I.P.C. and sentenced to R. I. for one year. Accused 5 (Chaitan Bhati) has been further convicted under Section 324, I.P.C. and sentenced to R.I. for one year. Accused 6 (Jujesthi Raha) has been further convicted under Section 323, I.P.C. and sentenced to R.I. for 6 months. The sentences inflicted are to rim concurrently. Against the order of convictions and sentences, the accused have filed Cr. App. 38/62. They have been acquitted of the charges under Sections 302 and 302/149, I. P. C. and Government appeal has been filed to set aside the order of acquittal and to convict them under the aforesaid sections.

(2.) THE prosecution case is as follows : Within the village limit of Padampur, Kudobhatta is a hamlet which is mostly inhabited by the family members of Ex -Gountia and Gandas. The main village Basti in Padampur is inhabited by the tenants of the village. In between the village and the hamlet there is a Jakhar Kata (plot No. 344), which is an irrigating tank. Kata is an irrigating tank having an embankment (Adi) on one side only. Originally the area of this Kata was 1.62 acres in 1938. Satyanarayan Bag, who was teen the Gountia -Thikadar of village Paciampur, applied for lease of a portion of the bed of this Tank for converting it into a paddy field. After enquiry, the ex -State Government of Bolangir -Patna granted lease of 0.80 acre which was allotted a separate plot No. 1107 and is known as Kadalimunda Bhag land of the ex -Gountia. In a partition amongst the Gountia and his sons, plot 1107 fell to the share of Jogeswar Bag (P.W. 1). The rest of 0.82 acre continued as Kata. The Adi of this Kata has on the eastern side of the Kata and is plot No. 86 - Plot No. 1107 is to the south of the Kata and launches the southern extremity of tile Adi. After the abolition of the Gountia system, the management of the tank was taken over by the Gram Panchayat. In 1958 some tenants of Padampur applied for grant of some money for improvement of this Kata for storing larger quantity of water in it. Rs. 400/ - was allotted by the Gram Panchayat and accused 1 who was the ward member of the Gram Panchayat, took the money for effecting implement. On July 11, 1958, P.W. 1 filed an application (Ex. 2) alleging that the tenants of Padampur were closing the Ghai (the passage through which water is let out) of the Kata which was on the Adi, and as a result of which damage would be caused to his land if the water would, exceed beyond a certain level. The Sarpanch (P.W. 13), Damabrudhar Meher made a local inspection and asked accused No. 1 to put embankment on all sides of the Kata covering it into a full -fledged tank. The Sarpanch was prepared to grant further money for the purpose, if necessary. But accused 1 and other tenants were obstinate and did not listen to the Sarpanch. They only strengthened the Adi by raising its height six feet more. As a result of this, large quantities of water accumulated in the Kata and the Kadalimunda Bhag land in plot 1107 and other lands of P.W. 1 were submerged in the year 1958 and no crop could be grown on them. When the height of the Adi was raised, one Biswanath Bag, a cousin of P.W. 1 was in the party of the tenants. In 1950, he changed the party and came over to the side of P.W. 1. On July 10, 1960, P.W. 1 and his servants cut the embankment to bring down the level of the water. In the morning of July 12, 1960, P.W. 1 went to the spot with 8 field servants to plough the land. Some of the accused persons, led by accused 1, rebuked P.W. 1 for cutting the ridge and opening the Nala, and also assaulted and drove them away from the field. First Information report was lodged in the Police Station by a person from the side of P.W. 1. This morning occurrence is not the subject -matter of the present dispute. The Sub -Inspector of Police deputed a constable to the two villages for having an enquiry at Belpara P.S. Padampur, the village of parties, and Belpara P.S. are intervened by a river named Lant. At about 3 p.m. P.W. 1 with his 4 field servants and 13 Gandas (his labourers) went to Kadalimunda Bhag land for weeding the grass to make it fit for transplantation of paddy. When they were weeding the grass on the land, 29 accused persons, armed with various lethal and dangerous weapons, led by accused 1 to 4, came in a body on the ridge of the Kadalimundi Bhag land, abused the Gandas for cultivating the land and asked them to leave the field. When the Gandas replied that they were coolies and prepared to work for wages, accused 1 asked the mob to assault the party of P.W. 1. He himself suddenly gave a blow with a Tabal on the head of deceased Subanath Bibhar. When Subhanath turned, he gave another blow as a result of which Subhanath fell down on the land. Accused 2 assaulted deceased Hagru with a Tabal on his head and Hagru fell down. Accused 3 gave two blows with Gujar Bari (a pointed iron rod fixed to a lathi) on the head of deceased Guman Kumbhar and two blows on both sides of his neck as a result of which Guman fell down. Accused 5 assaulted P.W. 5, Ambila Kumbhar, the sen of Gimian, with a tangi. Accused 4 assaulted Guman Kumbhar with a lathi, Accused 6, 7 and 8 had lathis in their hands. Accused 6 assaulted P.W. 8 (Musru Kumbhar) with lathi. Subanath died about one hour after the occurrence. Hagru died in the hospital on July 14, 1960 at about midnight. Guman died in the hospital on July 15, 1960 at about 10 a.m. F.I.R. (Ex. 1) was lodged by P.W. 1 at Balpara P.S. on July 13, 1960. It is the common case of the parties that there were heavy rains on 11th and 12th July and that river Lant was in high floods.

(3.) THE learned Sessions Judge held that the occurrence took place at the southern end of the Adi where the Ghal was opened by the complainant's party. On a reference to the spot map it would be clear that clot 1107 and the that touched each other. In fact plot 1107 has been carved out of the Kata itself. He has farther held that it may be that some men of the complainant's party were inside the field in plot 1107 which enjoins the Kata Adi to the Southern -most corner, but the deceased persons and the Gandas were at the Ghai cannot be disbelieved. In view of the close proximity of the Adi to plot 1107, the finding is correct and cannot be assailed. Whether the occurrence took place at the Adi or inside plot 1107 close to the Adi has not much material bearing on the ultimate decision of the case.