SASHI BEHERA Vs. STATE OF ORISSA

JUDGEMENT

(1.) Criminal Appeal No. 281 of 1981 and Criminal Appeal No. 210 of 1980 were heard analogously and this common judgment will govern both.

(2.) In Criminal Appeal No. 281 of 1981 the appellant Sashi Behera was convicted for an offence under S. 326, Penal Code ('I.P.C.' for short) and was sentenced to undergo rigorous imprisonment for two years. Criminal Appeal No. 210 of 1980 was preferred by him against the order of acquittal passed on his complaint for offences under Ss. 148, 323/149 and 427, I.P.C. The facts giving rise to both the appeals are narrated in brief. The parties belong to village Hirma. Sashi Behera is a todday tapper and Umashankar and Gangaram are land-holders. There is a Kata (water reservoir) in the village. Adjoining the embankment of the Kata Umashankar and Gangaram have got lands. There were two date palms in between the embankment of the Kata and the lands of Umashankar and Gangaram. They claimed that the date palms standing on their respective lands belonged to them, whereas, Sashi Behera claimed that the date palms stood on the embankment of the Kata. He had obtained a licence from the local Excise authority to tap todday from the date palms standing on the embankment of the Kata and according to him he was entitled to tap todday from these two disputed date palms, whereas, Umashankar and Gangaram disclaimed such right. In order to tap todday Sashi Behera had cut down the leaves of the date palms belonging to Umashankar and Gangaram at which the letter became annoyed and cut down the date palm which he claimed to be his own. The occurrence took place on 15-12-1978 at about 11 a.m. It was alleged that Sashi Behera along with other accused persons (since acquitted) arrived at the embankment of the Kata being armed with bow, arrow and lathis and asked injured Bhagaban Thakur (P.W. 7) to stop felling the date palm which Umashankar claimed to be his own. At this, Sashi Behera became enraged and shot an arrow at Bhagban Thakur (P.W. 7) which hit and pierced into his abdomen. Being injured he fell down unconscious. The associates of Sashi Behera assaulted Gangaram who sustained injuries. F.I.R. (Ext. 4) was lodged at the police station and the injured persons were examined by Dr. A. K. Das (P.W. 2). After close of investigation, the charge-sheet against Sashi Behera and other accused persons (since acquitted) was submitted for offences under Ss. 323, 326 and 307/34, I.P.C.

(3.) The defence of Sashi Behera in the case against him is the subject-matter of the complaint petition he filed against Umashankar, Gangaram and 8 others. His case is that the two date palms actually stood on the embankment of the Kata and did not belong to Umashankar and Gangaram. He had right to tap toddy from these two date palms and in fact he had been doing so. On the date of occurrence Umashankar and Gangaram along with their associates broke down the earthern jars fixed to the date palms for flow of toddy. When he protested, Umashankar started cutting down the standing date palm through Bhagaban Thakur. When he protested, Gangaram attacked him by means of a Barchhi (spear) and caused a bleeding injury. When he snatched away the Barchhi Gangaram assaulted him by means of a lathi. Umashankar who was armed with bow and arrow aimed and shot the arrow at him, but the arrow missed the target and hit Bhagaban Thakur. He reported the incident at the police station and produced the Barchhi, but as the police did not take any action, he filed the complaint petition against Umashankar, Gangaram and 8 others on 2-1-1979.