KARUNAKAR SAMAL AND 16 ORS. Vs. THE STATE

JUDGEMENT

(1.) THIS is an appeal by seventeen Appellants from an order of conviction and sentence passed by the learned Additional Sessions Judge, Cuttack, convicting them under Sections 304/34, 148, 325 325/149 and 323 Indian Penal Code and sentencing them to undergo rigorous imprisonment ranging from five years to three months in S.T. No. 27 C of 1958.

(2.) THE matter arose out of an incident of a fight between the accused -party and the prosecution party on a plot of land in tauzi No. 1301/1 at Danpur within Mahanga Police Station of the district of Cuttack. The land is stated to be 13.02 acres in area. The genesis of the dispute between the parties was that both claimed, at the time of the incident, right to the land on the strength of their respective alleged arrangement with the landlord. The simple facts are these: In 1945 one Pradhan Das (deceased), who was the landlord in respect of the land in question, leased out the land to several persons belonging to the prosecution party including p.ws. 1, 2 and 7 -18. These tenants are stated to he had the lease under their respective Pattas granted to them by there said landlord Pradhan Das. In October 1951 Pradhan died leaving him surviving his so Bijoy (d.w. 7), the landlord at the time of the occurrence. After the fathers death the son, the new landlord Bijoy let out to several persons belonging to the accused -party the said land on Bhag basis. It is said that the new landlord took away the Pattas from his father's tenants and thus entered into anew arrangement with the accused -party as Bhagchasis under him, as aforesaid. This position led to a dispute between the accused -party and the prosecution party which continued for several years with the result that in 1955 and 1956 there were two criminal proceedings under Section 145 Code of Criminal Procedure (Ext. J and J a -preliminary orders; exts. K and K -a being final orders in respect there of). Ultimately, however, the proceedings under Section 145 were dropped. There were also proceedings under Section 107 Code of Criminal Procedure (exts. 1 and L -a). On January 16, 1958 the proceedings under Section 107 Code of Criminal Procedure were also ultimately dropped. There appears to have been a pause for two months thereafter. On March 21, 1958 which was the date of the incident, there was a fight between the two parties, namely the accused -party (hereinafter referred to as the son's tenants) and the prosecution -party (hereinafter referred to as the father's tenants). Both the father's tenants and the son's tenants appear to have been under the belief that they each had a right to be in possession of the land in question by virtue of their respective alleged arrangement with the landlord. The prosecution version of the incident was that the father's tenants including p.ws. 1 2, 7, 9 and 10 on the fatal day were cultivating the land claiming their title on the basis of the respective Pattas from the deceased father landlord. While so doing, forty persons including the seventeen accused (who are Appellants in the present appeal) belonging to the accused -party claiming to be son's tenants attacked with lathis. Betho Nasis, brickbats and asked the p.ws. 1, 2, 7, 9, and 0 to get out; 'and while pursuing the demand for their eviction from the land assaulted the said prosecution witnesses. While this was going on Gouranga, the deceased, who was the unfortunate victim happened to pass that way and intervened. Thereupon, the accused -Appellant No. 3 is stated to have said that Gouranga had deposed against him in a certain cattle trespass case and therefore he should be beaten. The accused -Appellants Nos. 1 to 12 surrounded Gouranga and beat him. Gouranga was severely injured and was removed to Barchana Dispensary where by night he expired. Several others belonging to the prosecution -party including p.ws. 1 and 2 were injured. They were taken to the doctor (p.w. 5) for medical examination. Thereafter, First Information Report was lodged by p.w. 1 (Ext. 2/1). The defence version of the incident was that the Appellants Nos. 1 to 6, 10 and one Raicharan Mallik were cultivating their respective lands which they obtained on Bhag from the new landlord Bijoy as his tenants. It is said that while some of the son's tenants were cultivating the land, the deceased Gouranga along with p.ws. 1, 2, 7 to 18 and others numbering about 30 to 35 all claiming to be the father landlord's tenants under their respective Pattas as aforesaid -came to plot of land and asked the accused -Appellant No. 6 and the said Raicharan Mallik to leave the field saying that it was their Patta land. There was an exchange of hot words between them and a fight ensued with the result that both parties suffered injuries during the scuffle. These, in short, are the rival versions of the incident with regard to the factum of which, however, there cannot be any dispute.

(3.) SO assuming possession is disputed, that is to say, nobody succeeded in proving actual physical possession, it will then depend on who was the aggressive party. The deciding factor then will be the nature of the offence and the test would be who took the initiative the aggressive part. Mr. H. Kanungo contended that the learned Additional Sessions Judge did not discuss as to the reliability or dependability of the prosecution witnesses and that though several independent witnesses, who had no concern or nothing to do with the land, were available in the neighbour hood, none of them had been examined. The learned defence 'Counsel's' main criticism of the findings was that the learned Additional Sessions Judge failed to notice that all the witnesses were partisan witnesses and therefore their evidence should not have been relied upon. It was further argued on behalf of the defence that the prosecution case that the Pattas were taken away by the new landlord Bijoy cannot be believed in view of the fact that no witness has alleged the so -called removal of the Pattas from their possession. Furthermore, the learned Additional Sessions Judge has not discussed the aspect of possession, which, according to the learned defence counsel, should have been the main consideration in the present case. Then again, the learned defence counsel submitted that Gouranga the deceased, who was the unfortunate victim of the incident, was in fact the aggressor and took a leading part in attacking the accused -party and therefore he was himself responsible for the incident resulting in his death. The main target of defence criticism against the prosecution case was that all the material prosecution eye -witnesses including p.ws. 1, 2, 7, 9 and 10 to 18 were partisan witnesses. Reading the evidence of the prosecution witnesses I am however of the dew that the substance of the prosecution case was established beyond reasonable doubt. The consistent story established by the evidence of the witnesses is that it was the accused -party who were the aggressors. In this respect the injuries on the individuals belonging to the prosecution party as found by the doctors p.ws. 4 and 5 speak for themselves. It is clear from the evidence that the accused party did not suffer such injuries as the prosecution -party. In fact, there were only nine injuries on persons of the accused -party as appears from the evidence of the private medical practitioner d.w. 3. These injuries which were subsequently found by d.w. 3 give rise to reasonable suspicion, as creating evidence to suit the defence purpose. The nature of the injuries on the individuals belonging to the prosecution party was very severe; in fact the injuries on Gouranga which ultimately resulted in his death were certainly of grievous nature. The other circumstances against the defence case is their subsequent conduct that they absconded. In fact some of the accused -party were arrested about two months after the date of the incident. This circumstance of absconding although not conclusive and certainly not to be too seriously viewed against the accused. -yet shows the conduct of the accused -party which is not consistent with their alleged plea of innocence of the charges brought against them.