BHASKAR MALLIK Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE two appellants and their father were tried on a charge under Section 302, Penal Code the case against them being that at 8 P.M. on 20th November, 1964, at mouza Tentei within the Soro P.S. they committed murder of one Udia Bewa. The father was acquitted in the trial court, but the two appellants were convicted under Section 304, Part II, Penal Code and each of them was sentenced to undergo R.I. for 5 years.

(2.) ACCUSED No. 1 Bhagat Mallik, who was acquitted in the trial court, has three sons, namely, the two appellants and one Markand Mallik (P.W. 2). Markand's wife is Jema Dei (P.W. 3) and Jema's mother was the deceased Udia Bewa. Some time before the occurrence Bhagat Mallik had divided his properties amongst his three sons. Appellant No. 2 Naran being a leper was given only six gunths out of the family lands and the rest of the properties were divided equally amongst the two other sons, namely, appellant No. 1 and P.W. 2. Arrangement was made between appellant No. 1 and the P.W. 2 that they would maintain their parents. After the division of the family properties there remained an excess of one gunth of land which was cultivated by P.W. 2. After P.W. 2 cut and reaped the crops from this one gunth of land, appellant No. 1 wanted a half share out of it, to which P.W. 2 objected. On the date of occurrence, namely, 20 -11 -64 Bhagat Mallik, the father requested P.W. 1, the son of Udia Bewa (brother -in -law of P.W. 2) to make an equitable distribution of the produce from this one gunth of land between P.W. 2 and appellant No. 1 and he did so by allotting a 2/3rd share to P.W. 2 on the ground that he raised the crop and the remaining 1/3rd share to appellant No. 1. The latter being dissatisfied with this distribution is alleged to have assaulted P.W. 1. P.W. 2 intervened but he too was assaulted. The further prosecution case is that on seeing this the deceased came to the spot and tried to separate them, when the two appellants assaulted her and caused her death.

(3.) THE eye -witnesses to the occurrence are P.Ws. 1, 2, 3 and 5. P.W. 1, the son of the deceased said that when the latter came and intervened in the quarrel appellant No. 1 Bhaskar Mallik gave her a blow on her right side with a Killa Baunsa thenga (M.O. I) and appellant No. 2 Naran Mallik assaulted her with a Pitana (M.O. II). It was put to P.W. 1 in cross -examination that when he lodged the F.I.R. in the case he did not mention that appellant No. 2 Naran had assaulted the deceased. He asserted that he did, but P.W. 14 the Officer -in -charge of the Police Station, who recorded the F.I.R., stated that P.W. 1 did not state before him that appellant No. 2 had struck the deceased with a Pitana. P.W. 2 stated in Court that when the deceased came to the spot, appellant No. 2 Naran assaulted her with a Pitana, but she caught hold of the Pitana and then appellant No. 1 Bhaskar struck her with a Bamboo thenga (M.O. I) and she fell down and died. His evidence tends to show that the blow which appellant No. 2 Naran aimed at the deceased did not strike her as she caught hold of the Pitana and the blow which actually struck her was given by appellant No. 1 with the bamboo thenga (M.O. I), P.W. 2 however stated that Naran assaulted the deceased with a Pidha (M.O. III) about which P.W. 1 had not spoken a word. According to P.W. 3, Bhaskar assaulted her mother with the Pidha (M.O. III) and Naran with the Pitana (M.O. II). Apart from the fact that her evidence regarding the assault on the deceased is discrepant from what P.Ws. 1 and 2 have deposed on this point, it was suggested to her that she had stated before the police that she came to the spot after the assault was over. Although she denied the suggestion made to her, it was elicited from the I. O. (P.W. 15) that P.W. 3 had stated before him that she was in the kitchen and that on hearing the hulla she came to the place of occurrence after the death of her mother. It therefore appears to me that P.W. 3 has not seen the occurrence. The other eye -witness P.W. 5 says that on the night of occurrence on hearing the hulla he went to the spot and found that Bhaskar was armed with a Pitana (M.O. II) and Naran was armed with a Pidha (M.O. III), and they were assaulting Markand (P.W. 2). Just then the deceased came to the spot whereupon the deceased was struck with the Pitana (M.O. II) by Bhaskar and she fell down dead. It is therefore clear from his evidence that appellant No. 2 Naran had not actually dealt any blow to the deceased. This is in conformity with the evidence of P.W. 2 and with what is stated in the F.I.R. lodged by P.W. 1 at the Police Station. P.Ws. 9 and 10 deposed that they were present at the place of occurrence and their evidence is that while the appellants on one side and the P.W. 1 on the other were pushing one another, Udia Bewa came to the spot and she fell down on stones and died. According to P.W. 9 appellants Nos. 1 and 2 had nothing in their hands. It is surprising that neither P.W. 9 nor P.W. 10 was declared hostile by the prosecution and cross -examined. P.W. 15, the I. O. has stated categorically that the place of occurrence was an open threshing floor and he did not find any stones or wooden pegs fixed in the ground. The occurrence took place at 8 p.m. and the I. O. visited the spot at 6 a.m. next day, that is, after 10 hours. If there were any stones or pegs at the place of occurrence, the I. O. would not have failed to notice them or signs of their recent removal from the place of occurrence. Although the public prosecutor has grossly failed in his duty to declare P.Ws. 9 and 10 hostile and cross -examine them, yet having regard to the evidence on record and the other circumstances, I entirely agree with the view of the learned Sessions Judge that P.Ws. 9 and 10 have not spoken the truth.