JAMBESWAR PAL Vs. STATE OF ORISSA

JUDGEMENT

(1.) BOTH the appeals are being disposed of by this common judgment as these are directed against the same judgment dated 6.10.1994 passed by the Second Additional Sessions Judge. Puri in Session Trial Case No. 41/335 of 1990 convicting the appellant Jambeswar Pal under Section 302 as well as under Section 323 of the Indian Penal Code and sentencing him accordingly to suffer life imprisonment and rigorous imprisonment for six months respectively. The other appellants namely, Prahallad Pal, Narayan Pal, Umakanta Pal and Dhaneswar Pal were also convicted under Section 326/34 and under Section 323/34 of the Indian Penal Code. They were sentenced to suffer rigorous imprisonment for seven years in respect of their conviction under Section 326/34 I.P.C. They were also sentenced to suffer rigorous imprisonment for six months in respect of their conviction under Section 323/34 I.P.C. with a direction that all these sentences would run concurrently.

(2.) THE prosecution story in brief is that on 23.6.1988 at about 5 P.M., P.W. 8, Maheswar Pal lodged a written complaint before the Asst. Inspector of Police, Gop Police Station at Charichhak Primary Health Centre. In the said complaint, the informant inter alia alleged that on 22.6.1988 at about 4 P.M. he was in his house. At that time, he saw that the appellant Dhaneswar Pal had climbed the coconut tree situated on the back side of the house of the informant and was about to pluck coconuts. Jambeswar Pal was seen holding a sharp cutting weapon locally called 'Farsa'. The remaining appellants apart from other persons mentioned therein were also present at that place and were holding lathis in their hands. Seeing this the informant went to the spot and asked the appellants as to why they were plucking coconuts as on the 30th of that month the case between them would be decided on the question who could pluck the coconuts? Soon after that the appellant Jambeswar Pal assaulted the informant with Farsa on his head and nose. Soon after that the son of the informant went to the field to bring other brothers of the informant. Both the brothers came and asked the appellants party as to why after plucking coconuts they have injured the informant ? Despite this, the appellants scolded and hackled them. The informant's younger brother inflicted injury on the left leg finger and head of Chhabi Pal (since deceased). The other appellants namely, Narayan Pal, Pahali Pal hackled them with lathis: Accused Pahali Pal, Dhruba Pal, Basanta Pal, and Raju Pal hackled Rabi Narayan Pal (P.W.7) with lathis. Noticing this incident, when wives of informant and deceased came for help, they were also beaten up with lathis by accused Narayan Pal, Basanti Pal and Dhruba Pal. On the basis of the said complaint, F.I.R. under Sections 341/323/324/326/307/34 I.P.C. was registered at the Gop Police Station against the appellants and other accused persons named therein. On conclusion of usual investigation, police submitted charge sheet against the appellants under Sections 302/326/324/307/34 I.P.C. In usual course the case was committed to the Court of Sessions Judge, Puri. On transfer the case was tried before the trial Court. On perusal of the materials on record, learned trial Court framed charges under Sections 302/34, 323/34, 324/34 and 307/34 I.P.C. against the appellants and they pleaded not guilty to the said charges. In course of trial in all. 14 witnesses were examined on behalf of the prosecution. None was examined on behalf of the appellants. On conclusion of the trial, the appellants were convicted and sentenced as already stated.

(3.) UNDOUBTEDLY , there are large number of eye witnesses examined in this case. Some of the witnesses suffered injuries in course of the same incident. P.W. 8 being the informant Maheswar Pal is also an eye witness and he himself suffered some injuries at the hands of the appellants. Apart from P.W. 8, P.W. 1. Jyosna Pal being the wife of the deceased, P.W. 2, Kunjalata Pal being the wife of P.W. 8, P.W. 3, Sailabala Pal, P.W. 6, Manoj Kumar Pal being the son of P.W. 8 and P.W. 7 Rabinarayan Pal were examined as eye witnesses in this case for the prosecution. Among six witnesses, apart from P.W. 8, Maheswar Pal, P.W. 2 Kunjalata Pal and P.W. 7 Rabinarayan Pal are injured witnesses as they suffered some injuries in the very same occurrence. After going through the evidence we are left with no doubt that the appellants were indeed involved in the incident and there were injuries suffered by the deceased and other prosecution witnesses. It is the prosecution case that incident occurred when appellants party were plucking coconuts from the coconut trees situated on the land of the deceased. They consistently claimed that prosecution party possessed the land in question where the coconut trees were situated. It is also the case of the prosecution witnesses that the appellants party were aggressors and assaulted the deceased and other witnesses as already stated. However, it appears from the evidence on record that P.W. 14 Kalakar Saha is the investigating officer of the case. He has clearly stated in his evidence before the trial Court that there were in all nine coconut trees on the spot. He examined all, relevant documents filed by the parties and he ultimately ascertained upon enquiry and upon comparison of the documents filed by the respective parties that all the coconut trees were situated on five and half* decimals of land and this land was in possession of the appellants. It was part of total twenty four decimals of land. He had also stated this in Ext. F being the forwarding report under which he forwarded the accused persons before the Court of learned Judicial Magistrate. This fact could not be denied by the learned Addl. Government Advocate that the coconut tree in question were situated on a piece of land which was in the possession of the appellants on the date of occurrence and therefore, the appellants had lawful right to pluck the coconuts from those coconut trees.