BHONDARI KANHU AND ANR. Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE two Appellants herein Bhondari Kanhu and Epili Nilakantho were convicted on a charge of murder of one Sigadana Sarango punishable under Section 302/34 Indian Penal Code an sentenced to imprisonment for life. They were also convicted on a charge of the offence of alleged rioting punishable under Section 148 Indian Penal Code and sentenced to rigorous imprisonment for two years; the sentences are to run concurrently.

(2.) THIS case arises out of a dispute over an alleged grazing grounds (Gochar land) in a village within the vicinity of Digapahndi Police out post sixteen miles from Berhampur town, which ultimately led to the incident where was a free fight with mutual assaults between the prosecution party and the defence party resulting in injuries on both sides and the death of Sigadana Sarango. The relevant facts, which are few and simple, are these : On August 19, 1960 at 8 a.m. in the morning this incident took place at village Potanda about sixteen miles from Berhampur Taluk Police Station. The deceased's son -in -law p.w. 1 Jamuna Sarathi lodged the First Information Report with a Police Officer (p.w. 14) then camping at Digapahandi Out Post which is within 2/3 miles from the place of occurrence at 1 p.m. in the afternoon the same day. The formal First Information Report was lodged at Berhampur Taluk Police Station on the following day at 4 p.m. In course of investigation by the police, Appellant Epili Nilakantho who was also grievously injured in the fracas was arrested while in the hospital on August 20, 1960, and Appellant Bhondari Kanhu was arrested on August 22, 1960. Along with the two Appellants there were 63 others including Mohanti Nilakantho, Epili Mohihathi, Amogana Chatura and Sikha Ramachandra who were also arrested and charge sheeted by the police but all the other 63 accused persons were subsequently discharged by the committing court. The two Appellants were duly committed and sent up for trial. The Learned trial Judge convicted and sentenced the Appellants in terms as aforesaid.

(3.) THE defence is a plea of dough of private defence of both property and person. The defence denied the deceased's alleged possession of the land in question and contended that the land was all along lying vacant as Gochar land and that the Potanda villagers of defence party have been paying cast therefore. The defence version of the case in substance is this: On the day previous to the date of the incident, the deceased, by way of threat, sent advance intimation to the defence party of village Potanda to the effect that the deceased would cultivate the laid in question on the day following and asked the defence party not to obstruct. The following morning, the prosecution party said to be about 30 to 40 persons including the deceased, his, sons, son -in -law and brothers -in -law all armed with deadly weapons came to the spot and forcibly cultivated the land. Thereupon the said four accused persons of village Potanda who were charge sheeted but subsequently discharged as aforesaid, came to the spot and implored the deceased not to cultivate the Gochar land, but the said four accused persons were assaulted by the prosecution party. The defence case is that it was at that stage that the two Appellants then working in the neighbouring fields came to the rescue of their said four covillagers of Potanda but the deceased gave three blows with a Khanati on the head of the Appellant Epili Nilakantho. The other Appellant Bhondari Kanhu tried to save him but the deceased and his sons and his wife's brother attempted to assault Appellant Bhondari Kanhu. Then Appellant Bhondam Kanhu in fear of his own life dealt a blow with a Katua on the head of the deceased, and the other Appellant Epili Nilakantho, also in fear of his own life, snatched a Kati from the hand of p.w. 2 Sigadana Gobinda Dora and gave a liow with the Kati on the head of the deceased. In their examination under Section 342 Code of Criminal Procedure the Appellants did not specifically mention that they had dealt blows on the head of the deceased. Appellant Bhondari Kanhu said that he hurled the Katua which he was holding and that he could lot say whom it struck. Appellant Epili Nilakantho said that he aimed a blow with a Kati but he could not say whole it struck. In cross -examination of the prosecution witnesses the defence clearly suggested that the Kati blow of Appellant Epili Nilakantho and Katua blow of Appellant Bhondari Kanhu struck the head of the deceased. Thus apart from the somewhat vague statements in examination under Section 342 and the bare suggestions to the prosecution witnesses in cross -examination the defence did not lead any evidence in respect of their alleged right of private defence.