SITA KANDI Vs. STATE

JUDGEMENT

(1.) Sita Kandi, the appellant (hereinafter referred to as the 'accused') faced trial along with two others, namely, Jhumar Kandi and Sapana Kandi for alleged commission of offence punishable under Section 302 of the Indian Penal Code, 1860 (in short, 'IPC') by having brought to an end to the life of Bishnu Patra (hereinafter referred to as the 'deceased') on 9-1-1986, by intentionally causing an incised wound on the left side face by means of an axe. Accused Sapana separately stood trial for alleged commission of offence punishable under Section 324, IPC by inflicting a cut injury by means of a deadly weapon on the deceased, and on Govind Chandra Patra, (P.W.9) son of the deceased. In addition to it, all the accused persons faced trial for alleged commission of offences punishable under Section 302, read with Section 34, IPC, and Section 324 read with Section 34, IPC on the allegations of causing death of Bishnu Patra intentionally by means of a tangia and causing simple hurt by means of a cutting instrument on Govind Chandra Patra in furtherance of their common intention, while the accused-appellant was found guilty, others were acquitted by the learned Second Additional Sessions Judge, Cuttack in Sessions Trial No. 38 of 1987.

(2.) Prosecution version as unfolded during trial is that plot No. 719 was the land of the deceased while plot Nos. 728 and 730 were homestead land of accused Jhumar Kandi (since acquitted). Land of the deceased lies adjacent to the homestead land of Jhumar and the same is divided by live fence. Two Chakunda trees and a Simili tree stand on the live fence. This became the subject-matter of heated controversy and debate between the deceased on one hand and all the accused persons (including those acquitted) on the other. Some time prior to the alleged date of occurrence, each one of them advanced exclusive claim of title and/or possession over the said trees. As a consequence relationship was strained and embittered feelings surfaced. To prevent the situation degenerating to an ugly level, the deceased and accused Jhumar, as advised by well-wishers of the village, made an application to the Tahasildar, Salipur for deputation of an Amin to measure the dividing fence and ascertain whether the trees belong to the deceased or Jhumar. The Amin (P.W.8) visited the spot and in terms of the direction given by the Tahasildar on 4-1-1986 found all the disputed trees to be situated in the homestead land of Jhumar, after measurement in presence of the gentlemen of the locality and a constable deputed for the purpose for maintaining law and order. Notwithstanding the measurements, gentlemen of the village allotted one big Chakunda tree and Simili tree to the share of Jhumar, and allotted a samll Chakunda tree to the share of the deceased with the concurrence of parties in order to bury the hatchet and to dampen the smouldering fire of enmity subsisting between the parties. The allotment was reduced into writing, which was signed by the deceased and accused Jhumar. It was sitpulated therein that an amicable settlement had been arrived at, and the deceased shall cut and remove the Chakunda tree allotted to him within eight days from the date of settlement. Accordingly, on the date of occurrence sons of the deceased went in the company of the deceased and his brother-in-law Braja Behera (P.W.2) to cut the tree for its removal. While the cutting was in progress, Jhumar suddenly appeared at the spot and asked them to refrain from cutting the tree. He raised claim over the same. No heed to his request was paid, in view of the settlement and altercation of words took place between the deceased and Jhumar. During the course of such altercation, Jhumar feeling incensed and irated by the utterance of unsavoury and unpalatable words by the deceased, dealt a slap to the deceased with great impact. Deceased fell down on the ground and soon a tussle ensued between them. During the course of tussle, accused Jhumar called aloud asking the inmates of his family to furnish him an axe, and in response to said call, the accused Sita went to the spot being armed with an axe and dealt a blow by means of it to the left side face near the ear of the deceased. At that time, the informant (P.W.9) was engaged in a contentious conversation with accused Sapana (since acquitted), and during the course of his conversation Sapana snatched away the spade from the hand of the informant and dealt blows by the handle of it to the informant. Not content with it, accused Sapana took away the axe from the hand of accused Sita and dealt a blow to the back of the informant. Thereafter the villagers removed informant and the deceased, in bleeding condition to Salipur hospital for treatment. A written report was lodged and investigation was taken up. As the condition of the deceased deteriorated, the doctor of Salipur Hospital advised for his removal to S.C.B.Medical College Hospital, Cuttack for better treatment. In spite of treatment tendered, the deceased breathed his last on the same day.

(3.) The accused persons pleaded innocence. They took the stand that as protest was raised by accused Jhumar, the deceased and his son raised an axe to assault accused Jhumar and Sapana. Apprehending fatal injuries, they tried to snatch away the axe from the clutch of the deceased and informant, and while doing so, both deceased and the informant fell down on the ground. Lest they would commit assault on them after getting up from the ground, accused Jhumar and Sapana ran away towards their house for their own safety and protection. One witness was examined to substantiate their plea, while prosecution examined 18 witnesses to prop up the charges against the accused. P.W.1 is the wife of the informant. P.W.2 is the brother-in-law of informant, P.W.6 was engaged as a labourer to cut the tree and P.W.9 was the informant, who claimed to be eye witnesses to the occurrence. P.W.2 made a departure from the statement made during investigation. After the prosecution was permitted to put leading questions to P.W.2 under Section 154 of the Indian Evidence Act, 1872, he supported the P.Ws. 1, 6 and 9's statements as regards prosecution version. Placing reliance on the evidence of P.Ws. 1, 2, 6 and 9, who are claimed to be eye witnesses, learned trial Judge found the accused-appellant guilty, while acquitting the others as aforesaid. The defence version was found to be improbable.