SIKHAR BEHARA Vs. STATE

JUDGEMENT

(1.) THE appellants, sixteen in number, were jointly tried along with twenty -five others and were variously charged for offences under Section 302, 302/34, 148, 302/149, 323, 324, 323/149 and 324/149, I.P.C. After trial, the appellants were convicted under Section 148, 302/149, 323/149 and 324/149, I.P.C. and sentenced to undergo imprisonment for life for the offence under Section 302/149, I.P.C. No separate sentence was awarded for the other offences.

(2.) THE prosecution case runs thus : - The accused persons belong to villages Khijuria and Dimirisena and members of the prosecution party belong to village Dimirisena. There was a long standing dispute between the parties regarding possession of the lands belonging to the deity Balunkeswar installed at village Dimirisena. The deity owns 150 acres of lands out of which 100 acres were in possession of the tenants and the remaining 50 acres were being let out for bhag cultivation annually. The prosecution party claims that 40 families belonging to their party were in possession of those 50 acres of lands. It was alleged that one Chandra Sekhar Patnaik was the trustee of the deity and after him his son Indra Kumar Patnaik managed the properties as a trustee for some time. Indra Kumar Patnaik entrusted the management of the affairs of the deity and its properties to the villagers of Dimirisena according to terms of a compromise in a proceeding under Section 145, Criminal Procedure Code and since then the members of the prosecution party have been in possession of the lands. The present dispute relates to the lands of the deity which are locally known as PANCHAMANIA lands with an area of 2.04 acres appertaining to plot Nos. 2273, 2275 and 2276. The occurrence arose on account of cutting of paddy from plot No. 2273. Just before the occurrence a proceeding under Section 144, Cr. P.C. had been started and the members of both the parties were restrained from going upon the lands. P.W. 5, the A. S. I. of Police of Jodapadar out -Post served the order under Section 144, Cr. P.C. on appellant No. 11 Bhramar Samal and appellant No. 13 Jugal Samal on 27.11.1974. He also served a notice under Section 107, Cr. P.C. on some of the accused persons to show cause as to why they would not be called upon to execute bonds for keeping peace. On 28 -11 -74, P.W. 5 went to village Dimirisena for serving the order under Section 144, Cr. P.C. and the notice under Section 107, Cr. P.C. on the other accused persons and there an order under Section 144, Cr. P.C. restraining the members of the prosecution party from going upon the lands was made over to him by appellant No. 11 Bhramar Samal. When P.W. 5 read over and explained the contents of the order to the members of the prosecution party and wanted to serve the notice on them, they refused to accept the same. The members of the accused party also refused to accept the order under Section 144, Cr. P.C. and the notice under Section 107, Cr. P.C. After refusing to receive the notice, a group of about 20 to 30 members of the prosecution party went to cut paddy from the PANCHAMANIA lands. Subsequently a group of about 15 persons of the prosecution party went towards the said lands for carrying the paddy sheaves. While the second group had proceeded up to the Kalapatiri burial ground they found that a group of 25 persons of the accused party going there with lathis, bhalis, tentas and other deadly weapons. Mahant Gobinda Das was leading the accused party and he was armed with a gun. At the same time another group of 50 persons of the accused party came there being armed with deadly weapons. Seeing the first group led by Mahant Gobinda Das the persons who were going to carry the paddy crops shouted for help and some of the persons who were cutting the paddy crops rushed towards Kalapatiri burial ground. The members of the accused party surrounded the members of the prosecution party. Mahant Gobinda Das fired a shot from the gun which hit Kulamani Behera, a member of the prosecution party and he fell down on the ground. Then Gobinda Das snatched away a tenta from the hand of accused Chhaila Samal (since acquitted) and stabbed Kulamani with it. Thereafter the other accused persons assaulted Kulamani with deadly weapons as a result of which he died at the spot. When Kunja Samal, a member of the prosecution party, came to the rescue of Kulamani and entreated the accused persons not to commit any further assault, appellant No. 16 Prahallad Bhoi stabbed him (Kunja Samal) with a tenta as a result of which he fell down on the ground. Some of the other accused persons also assaulted Kunja Samal with deadly weapons as a result of which he lost his consciousness and subsequently succumbed to the injuries at the Headquarters Hospital, Puri. In course of this incident P.W. 2 Madhab Das, P.W. 3 Banchhanidhi Swain, P.W. 4 ? Balabhadra Palei, P.W. 6 Arjun Behera, P.W. 7 Doma Samal, P.W. 8 Nakul Behera and P.W. 9 Sahadeb Das also received injuries.

(3.) THE appellants pleaded not guilty to the charges and contended that they were in possession of the panchamanya lands and had raised paddy crops during the year of occurrence. On the date of occurrence, they got information that the members. of the prosecution party were going to cut unripe paddy. So they went to protest against it. Seeing them, the members of the prosecution party came running towards them carrying deadly weapons. When appellant No. 5 Daitari Behera said that they had raised the paddy and the prosecution party should not cut the same. Kunja Samal directed others to assault the accused party and Kulamani Behera shot an arrow which hit the left hand of Daitari. P.W. 4 Balabhadra Palei gave a lathi blow on the head of Daitari as a result of which he fell down. P.W. 18 Bhimasen Behera and P.W. 3 Banchhanidhi Swain also assaulted appellant No. 9 Diji Behera. On account of the assault by the prosecution party the accused persons fled away from the spot.