BABAJI Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS criminal appeal is directed against the judgment and order dated 26. 3. 1983 passed by the learned addl. Sessions Judge, Sambalpur in S. T. No. 70/11 of 1982, whereby appellant No. 1 has been convicted under Sections 325 and 323 ipc and sentenced to undergo R. I. for five years for the offence u/s 325 IPC and R. I. for three months for the offence u/s 323 IPC, the sentences to run concurrently; appellant nos. 2 and 3 have been convicted under Section 325 IPC and sentenced to undergo R. I. for five years each; and appellant No. 4 has been convicted under Sections 304 and 326 ipc and sentenced to undergo R. I. for eight years for the offence u/s 304 IPC and R. I. for four years for the offence u/s 326 IPC, the sentences to run concurrently.

(2.) THE case of the prosecution in a nutshell is that Gobardhan Mahakud (PW13)purchased the disputed land from accused-appellant No. 1, Babaji Seth, by a registered sale deed. On 11. 11. 1980 while Gobardhan mahakud was reaping paddy crop from the disputed land with the help of his relations and labourers, the accused persons game there being armed with deadly weapons like bow and arrows tangia, axe, iron rod, lathis etc. , and challenged the deceased Chandra mahakud. Accused-appellant No. 1, Babaji seth, shot an arrow at Chandra Mahakud which did not hit him. Thereafter, accused-appellant No. 4, Bharat Seth dealt tangia blows on his legs, due to which he fell down with severe bleeding injuries and other accused persons also assaulted him there. At that time, Prafulla Kampa (PW11), who was passing by, saw the assault on Chandra mahakud. When he came and protested, accused-appellant No. 1, Babaji Seth shot an arrow at him, which hit his belly. While pwll was running away, accused-appellant no. 4, Bharat Seth dealt a tangia blow and accused-appellant No. 3, Dasarath @ Suru seth dealt an axe blow due to which he fell down and the other accused persons also assaulted him. The incident was informed to Padmalochan (P. W. 2), the brother of prafulla, who came to the spot and took prafulla for treatment. Padmalochan reported the matter to the police and after due investigation charge-sheet was submitted against the accused persons.

(3.) THE plea of the accused persons is that the disputed land was not sold to Gobardhan mahakud and Gobardhan Mahakud never possessed the same. Accused Babaji Seth had grown paddy crop on the disputed land in the year of occurrence, but Gobardhan mahakud got the same reaped in unripe condition on the date of occurrence. Accused babaji Seth, Kalia Seth and Bharat Seth went to protest, but Chandra Mahakud dealt tangia blows on them and other labourers attacked them with sickles. Accused Bharat snatched away the axe from chandra Mahakud and waived the same in his self-protection which might have hit chandra Mahakud. In other words, the accused persons have taken a plea of right of private defence and property.