BANAMBAR SAHU AND 5 ORS. Vs. THE STATE

JUDGEMENT

(1.) THE six accused -Appellants have filed this appeal against the judgment dated 16th November, 1956 of Sri A.R. Guru, Sessions Judge of Cuttack, convicting Appellant Nos. 1 and 2 (Banambar Sahu and Fakir Sahu) under Section 302, Indian Penal Code, and sentencing them to imprisonment for life. He has also convicted them under Section 148, Indian Penal Code, but not passed any separate sentence. The other four Appellants have been convicted under Section 148, Indian Penal Code, and have been sentenced to rigorous imprisonment for one year each.

(2.) THE prosecution case is that Gobardhan Mohapatra (P.W. 13) was the Sarabarkar of moozas Tentulia, Keotipatna and Charimarhia in the Subdivision of Banki. The sarabarakari rights were abolished in the year 1950, but nevertheless the Government allowed the Sarabarkar to cultivate some lands in Khas. Accordingly Gobardhan Mohapatra got two acres in Panchapahara, Order 59 in Gholepur and 0rder 41 in Gopalpor. The two plots is Gholepur and Gopalpur from one contiguous land. The prosecution case is that Gobardhan had been in possession of these lands particularly those situate in Gholepor and Gopalpur ever since 3rd November 1950. There is a water channel through which the water from these lands Is drained out. Since the settlement Gobardhan claims to be improving the lands by levelling the lower portions. In 1955 the present accused persons along with others created trouble by trying to close up the mouth of the channel and thereby to render the lands of Gobardhan useless. Gobardhan filed a petition for action under Section 144, Code of Criminal Procedure in consequence of which the present accused persons were warned not to create trouble.

(3.) FIRST information report was lodged by P.W. 1 Krushna, the son of Gobardhan at about 1 O' clock in the afternoon of that day the police station being at a distance of 7 miles. The injured was unconscious and was in the hospital till 7.30 a.m. of 2nd May, 1956 when he expired. His dying declaration could not be taken by Taluk Officer, P.W.4 as the injured lay unconscious throughout till his death.