SIDU SIALA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The appellant assails the order of conviction under Section 304, Part II, Indian Penal Code, and sentence of Seven years R. I. imposed by the Sessions Judge, Balasore, in S. T. No. 18 of 1996. The appellant and four others were prosecuted in the said case. All the five were charged under Section 148, Indian Penal Code. The appellant and accused Madhu Siala were further charged under Section 302/34, Indian Penal Code, while the three other accused persons were charged under Section 302/149, Indian Penal Code. The four other accused persons were charged under Section 323 for voluntarily causing hurt to Sanstan Siala, whereas appellant was charged under Section 323/149, Indian Penal Code, for causing hurt to Sanstan Siala. To say the least, the charges framed were indeed very confusing. Be that as it may, all the other accused persons were acquitted of all the charges and the appellant alone was convicted under Section 304, Part II, Indian Penal Code, and was acquitted of all other charges.

(2.) For informant and the accused persons including the appellant are agnatic relations. The informant was claiming to be in possession of Ac. 0.09 decimals of land pertaining to plot No. 119 in mauza Anantapur, but the accused persons got it recorded in their names during the consolidation proceeding by allegedly exercising fraud and a revision was pending before the Commissioner at the instance of the informant. On 19-10-1985 at about 9 a.m., the accused persons with a view to disturb the possession of the informant assembled over the disputed land and started putting fence over the same. The informant protested and uprooted two pegs from the fence. At that stage accused Madhu (acquitted) pushed the informant towards a Kochila tree and assaulted on the head of the informant whereafter accused Sambhu (acquitted) dealt a blow with a spade on the left leg. At that time, the deceased-mother of the informant - case running to rescue her son. Accused nanta (acquitted) pushed her towards a Neem tree and accused Sidu (the appellant) picked up a bamboo lathi from the fence and dealt one blow on her head as a result of which she fell down. Written report was lodged by the informant on the same day at about 11 a.m. at Simulia Police Station alleging assault on himself and on his mother. A case was registered under Sections 147/148/149/325/324/323, Indian Penal Code. The informant and his mother were sent to Simulia P.M.C. for medical treatment. Subsequently, as the condition of the deceased became serious she was removed to Bhadrak Sub-Divisional Hospital, but she succumbed on the same day. Thereafter on completion of investigation, charge-sheet was submitted alleging inter alia, commission of offence under Section 302, Indian Penal Code.

(3.) The accused persons denied their complicity and pleaded that the disputed land was under their possession. It was further pleaded that on the date of occurrence, the informant was uprooting the fence which had been put by them previously and when Saraswati Dei, mother of accused Sidu and Madhu, protested, she was assaulted by the informant. Banamali, brother of accused Madhu and Bidu, also protested, but he was threatened. It has been pleaded that a false case has been foisted due to enmity.