KELU SAHU Vs. THE STATE

JUDGEMENT

(1.) APPELLANT has been convicted under Section 302, Indian Penal Code and sentenced to imprisonment for life. The prosecution case is that the deceased was in cultivation of Order 16 acre of land in plot No. 819 as bhag tenant under the Khuntias since the time of his grand -father. Plot No. 819 is Order 45 acre in area. P.W. 2 and P.W. 15 are respectively in possession of Order 13 and Order 16 acre of the balance. In 1945 P.W. 2 and P.W. 15 purchased the lands in their cultivating possession from the owners by two separate kabalas. There was a proposal for sale of the land in possession of the deceased in favour of Giridhari, the father of the deceased, and Rs. 10/ - was paid in advance to the Khuntias. As Giridhari died soon after before he paid the balance consideration, the kabala could not be executed. The deceased and his brother Sita (P.W. 1) continued to possess the disputed land as bhag tenants. 5 days before 4 -6 -1961, the date of occurrence, the deceased and his brother ploughed the disputed land and sowed Bangi variety of paddy thereon. The accused was not in cultivating possession, but 3 months before the incident, he purchased the disputed land by a registered Kabala. To enforce his right acquired by purchase, the Appellant cultivated the disputed land with the help of P.W. 10, a labourer, and sowed Kantamiriga variety of paddy. The mother of the Appellant came to the land with thick lathis. P.W. 1 was ploughing another land about a furlong away and deceased Basant was ploughing the land of one Bata Kar which was still further away. When P.W. 1 found the accused ploughing the disputed land, he went to Basant and called him. They found that the accused was still ploughing their land. Basant protested against the act of ploughing, stood in front of the plough and asked the accused to unyoke the bullocks. As the accused did not hear, he tried to unyoke forcibly the bullocks. The accused and his mother claimed to have purchased the land from the owners. The accused gave a push and Basant fell down. He immediately got up and gave a lathi below on the back side of the waist of the accused. The mother of the accused then caught hole of the deceased and the accused dealt a severe blow on the right side of the head of the deceased who fell down unconscious with his face upwards with a bleeding injury on the head. The accused and his mother began to press him sitting on his chest and gave him some fist blows. P.W. 1 gave a blow from behind on the right shoulder of the accused with the thin bamboo stick (M.O.I) The mother of the accused then hit Sita on the backside of his waist with the lathi. At this stage Sita gave another blow on the front side of the bead of the accused with the lathi of his brother which was lying on the ground. The accused retaliated by hitting Sita on his left elbow with his lathi. P.W. 1 raised an alarm and the neighboring tenants gathered on the land. The accused with his mother left the spot with his plough after unyoking the bullocks. The deceased was carried to his house and from there to Salepur P.S. which is 7 miles away and died after reaching the Thana. He was throughout unconscious.

(2.) THE accused plead not guilty. His case is that Sita and Basant were not in cultivating possession of the disputed land which is Cherpada chak and not in Thengana chak. He purchased the disputed land by a registered kabala about three months before the occurrence. Before his purchase the disputed land was in cultivating possession of one Shankar Padhan who gave up possession in favour of the accused after the latter's purchase. He had ploughed the field long before the occurrence and made the land ready for sowing. On the date of occurrence he sowed Kantamiriga variety of paddy and thereafter began to plough it himself. While he was ploughing the deceased, P.W. 1 and one Kartik Barik (P.W. 7) questioned him about his ploughing. Immediately after Basant hit him on his head with a stick (Thenga). Then his mother caught hold of Basant from the front side by putting her arms round his waist. At this stage, Sita came running with a lathi to assault his mother and tried to assault her by raising his lathi with both hands; but the blow accidentally fell on the head of Basant who fell down on the spot. Kartick gave a lathi blow on the left shoulder of the accused and Sita gave another lathi blow on the back side of his waist. The doctor (P.W. 17) examined the accused and the deceased. The deceased had the following injuries:

(3.) THERE was Some controversy regarding the identity of the disputed land and in which chak it was situate. The evidence on this point is undoubtedly somewhat discrepant. But the controversy has no significance in view of the admitted defence case that the dispute took place on the land which was purchased by the accused about 3 months before the occurrence and which is alleged by him to be in possession of Shankar Padhan till that date. It is from this land the blood stained earth was recovered.