ARTA BISWAL AND ORS. Vs. STATE OF ORISSA

JUDGEMENT

(1.) ALL the three Appellants having been convicted for commission offence under Section 302/34 of the Penal Code and sentenced to imprisonment for life by learned Sessions Judge, Mayurbhanj have preferred this appeal.

(2.) CASE of the prosecution is that one Aila Bewa had three daughters namely, Debi, Sabana and Labana, In the year 1991 during Makara said Aila Bewa divided her landed property amongst three daughters. After such division of property Sabana and her father -in -law came to the village for the purpose of cultivation of land that fell to the share of Sabana and they engaged three persons, namely Arjuna Barsalia, Sukra Barsalia and Nanda Kishore Biswal to plough the land. On the date of occurrence while all these persons were ploughing land in her presence and in presence of her father -in -law, the three accused persons came armed with Barsi and Katuri. Appellant Arta asked Arjuna Barsalia to stop ploughing and when Arjuna refused Arta is alleged to have snatched the Barsi from the hands of accused Debi and dealt one blow on the backside neck of Arjuna Barsalia. Due to such assault Arjuna Barsalia sustained bleeding injury and fell down on the ground where after the accused -appellant Sarat Biswal dealt 3 to 4 blows on the head of Arjuna with the sharp side of Katuri resulting in death of Arjuna in the field itself. Sabana and other persons present nearby raised hullah and after some people gathered they removed the deceased to the village and then to the hospital. Surendra Biswal who witnessed the occurrence went to Khunta police station and lodged FIR. On these allegations the FIR was registered for commission of offence under Section 302/34 of the Penal Code and after investigation charge -sheet was submitted for commission of the said offences.

(3.) SHRI S.D. Das, learned senior counsel appearing on behalf of the Appellants challenged the findings of the trial court basically on two grounds. According to Sri Das, Debi (appellant No. 2) is the eldest daughter of Aila and Appellant No. 1 Arta Biswal is the husband of Debi. Arta Biswal was illatum son -in -law and was in possession of the entire properties of Aila and was also cultivating the same. On the basis of above it is submitted by Sri Das that in exercise of right of private defence of properties the Appellants prevented the deceased and other members from entering into the land and cultivating same and in the process the deceased died. Second submission of Sri Das is that there being no material to support the charge under Section 34 of the Penal Code, considering the nature of evidence available against the Appellant No. 2, conviction under Section 302 of the Penal Code is not sustainable.