GANGADHAR ALIAS GUHIA DAS Vs. THE STATE

JUDGEMENT

(1.) THESE are appeals from an order of conviction and sentence passed by the Additional Sessions Judge, Balasore, Camp: Baripada, convicting the Appellant Gangadhar alias Guhia Das in Criminal Appeal No. 76 of 1958 under Section 302 and 148 Indian Peal Code and sentencing him to rigorous imprisonment for life and to thee years rigorous imprisonment under each count respectively; the sentences to run concurrently; and further convicting the Appellants in Criminal appeal No. 82 of 1958 under Section 148 Indian Penal Code and sentencing them to rigorous imprisonment for three years each in Sessions Trial No. 40 -M of 1957.

(2.) (sic) circumstances giving rise to the incident in question were these In village Bhuskunda within Police station Suliapada in the district of Mayurbhanj, there was a tank called Tala Pokhari which belonged to Govinda Jiew Thakur. The Marfatdar in respect of the said tank was one Mahant Govinda Gopalananda Deb Goswami under whom there was a Tahasildar named Pruthunath Das (P. W. 26) who looked after the management of lands and collection of rents. The topography of the tank is clearly shown in the spot map (ext. 23) prepared by P.W. 28. We are mainly concerned with the area bonded by points E. F. G. and H forming almost a square area including the water port on inside the tank which is marked by points J, K, L, and M as shown in the spot map. If appears from evidence that fishing right in respect of the said tank is given by the Mahant to different persons from year to year. Prior to Amli 1363 (corresponding to the year 1956 -57) the fishing right had been given to the accused -Appellant Narayan Das. For how many years prior to the year 1956 -57 in question, with which we are concerned in these appeals, the accused -Appellant Narayan Das had this fishing right in respect of the said tank is not quite clear from evidence. It is in evidence however, that for the year previous to the year in question 1956 -57, the accused -Appellant Narayan Das had the fishing right. The dispute, however, arose in respect of this particular year 1956 -57. Both the accused party as also the complainant party claimed fishing right in respect of this year 1956 -57. The facts, however, which brought the matter to an issue were these the prosecution version as given by the complainant (P.W. 1) was that the deceased Harish Chandra Sahu and P.W. 1 Chintamoni Das had taken lease of the tank for Rs. 20/ - for the year beginning from the month of Baisakh of the Amli year 1363 to the month of Chitra of the Amli year 1364, that is to say, from April 15, 1956 to April 14, 1957 (according to the English Calendar) approximately. This was corroborated by the Tahsildar (P.W. 26) of the Mahant. These alleged lessees paid the sum of Rs. 20/ - and the Tahsildar is said to have granted them a receipt (ext. 16). The accused party headed by the accused -Appellant Narayan Das also claimed to be lessees in respect of the self same tank for the same year; and in support of their alleged rival claim they strongly relied upon Ext. E and Ext. E -1 being money order acknowledgment and postal receipt respectively purporting to show that the accused -Appellant Narayan Das had also remitted a sum of Rs. 15/ - to the Mahant all May 3, 1956 intended to be as rent in respect of the lease of the said tank for that particular year. Further -more, the other circumstances in favour of the accused partys alleged rival claim to the fishery right was that admittedly the accused party had the fishery right in the year previous to the year in dispute. In other words, accused Party's case has throughout been and is that this remittance of Rs. 15/ - to the lessor who acknowledged the receipt of the same is clear proof of continuance of their lease for the following year 1956 -57. This aspect of the case is very vital. The complainant (P. W. 1) on the other hand, in the strength of ext. 16 being the Chalan form in respect of the fishery lease granted to him jointly with Haris Chandra Sahu deceased, contended that it was they, namely, P.W. 1 Chintamoni Das and the deceased Harish Chandra Sahu who were the lessees for that year having had made payment of the rent towards water -tax: covering their right in respect of the tank and the ditch and the Palms on the bank of the tank which were given on contract basis for one year to the said two lessees from the month of Baisakh of the Amil year 1363 to the month of Chaitra of the Amli year 1364 -one years time -as clearly stated in ext. 16. This period referred to in the document is corresponding to the period from April 15, 1956 to April 14, 1967 approximately as aforesaid. To this extent, there is no mistake about the alleged claim of the complainant party. This dispute, however, between the parties making rival claims to fishery rights over the tank, immediately manifested itself in the form of litigation. On July 10,1956 the complainant (P.W. 1) and the deceased Harish Chandra Sahu as lessees had put in fish fries in the said tank; and again on July 26, 1956 they took some more fish fries to the tank and put them in the water. At that time some members of the accused party headed by the accused -Appellant Narayan Das came and threatened to assault them. However, the complainant and the deceased Had Sahu came away and lodged First Information Report at the local Police Station. The Police after enquiry started proceedings under Section 107 Code of Criminal Procedure against both parties. Incidentally, these proceedings under Section 107 Code of Criminal Procedure remained pending until January, 1958, that is to say, till after ten months from the date of the incident which took place on April 2, 1957 hereinafter stated.

(3.) THIS leads me to the consideration of certain details of the actual incident necessary for the purpose of determination of individual liability of those who participated in the incident including the accused Appellants before us.