KHETU MAHANTA AND 7 ORS. Vs. STATE

JUDGEMENT

(1.) UPENDRA Mahanta has been convicted under Section 302 , Indian Penal Code and sentenced to imprisonment for life. Brusava Mahanta has been convicted under Sections 302/34, 148 and 326/149, Indian Penal Code. He has been sentenced to imprisonment for life under Section 302/34, Indian Penal Code. No separate sentence has been awarded in respect of the other offences. Khetu Mahanta has been convicted under Sections 148 and 326, Indian Penal Code. He has been sentenced to R.I. for 3 years under Section 326 Indian Penal Code and no separate sentence has been awarded under Section 148, Indian Penal Code. Banamali Mahanta, Hari Munda, Boda Mahanta and Dhela alias Jagannath Mahanta have been convicted under Sections 148 and 326/149, Indian Penal Code. Rama Gisi has been convicted under Sections 147 and 320/149, Indian Penal Code. Each of them has been sentenced to R.I. for 2 years under Sections 326/149, Indian Penal Code. No separate sentence has been awarded under Sections 147 and 148, Indian Penal Code. An of them are the Appellants.

(2.) THE prosecution case may be stated in brief. One Bansi Mahanta had two sons -Bhola and Pitambar. Baburam (the deceased) was one of the sons of Bhola Karan and Mukunda (the deceased) were the sons of Pitambar. The disputed land constitutes 1.71 acres. The lands belonging to the descendents of Bhola and Pitambar were not partitioned by metes and bounds but they were in separate possession of different portions of the lands for convenience. On (sic) 3 -5 -1960 Karan executed a sale deed (Ext. F.) in respect of 13 kitas of land including the disputed land in favour of accused Khetu, Brusava and Gaduru who are brothers for Rs. 1060/ -. At the time of registration, the two deceased protested that it being the family land cannot be transferred in favour of the vendees. On account of the dispute over possession, a proceeding under Section 145, Code of Criminal Procedure was started in Criminal Misc. Case No. 63 of 1960. It terminated in favour of the vendees on 26 -4 -1961. This possession on the date of the preliminary order was declared. Despite such an order, Baburam cut away the paddy from the disputed land on 5 -11 -1962 and 6 -11 -62. Khetu filed a complaint, but Baburam was acquitted on 280.1963 in G.R. Case Nos. 241 and 243 of 1962 (vide judgment Ext. 23). On 24 -7 -1963, the vendees obtained a preliminary order (Ext. B) in this favour under Section 144, Code of Criminal Procedure restraining the members of the prosecution party from going upon the land, and the order Ext. B was made final on 16 -9 -1963 as per the order Ext. C. Despite this order, the members of the prosecution party again cut away the paddy on 25 -10 -1964. A criminal case filed against the deceased ended in acquittal. The judgment (Ext. 2) was pronounced on 29 -5 -1965. The occurrence took place just within a month on 27 -6 -1965. The prosecution case is that on the disputed 3 Kitas of land Baburam and Mukunda continued in possession and sowed paddy. The paddy plants had grown to a height of 3 to 4 inches. At about 6 A.M. on 27 -6 -1965, the accused persons, excepting Upendra Mahanta (Accused No. 3) and Sankarsan Mahanta (Accused No. 4), along with many others formed an unlawful assembly and came to the disputed land from the house of Brusava. They were armed with deadly weapons, like axe, Bala, bow and arrows, and lathis. They went to the disputed land with ploughs, 7 paiss of bullocks and 1 pais of buffaloes. The 3 Kitas of disputed land adjoin each other. When they were about to replough the disputed land to destroy the paddy seedlings and to take forcible possession, Baburam protested saying that he had raised the crop and he would not allow them to replough the field. Accused Khetu, Mahanta asked the other accused to beat Baburam and Mukunda. He himself shot an arrow which struck the right leg of Baburam. When Baburam was trying to take out the arrow, Guduru, Boda and Dhela dealt lathis blows on his back. Then an the accused surrounded both Baburam and Mukunda and assaulted them with lathis. When both of them fell down, the accused went back towards the village. While the accused were returning, Upendra and Sankarsan came from the side of the village and met them on the way. Upendra was armed with a Bala and Sankarsan with a lathi. Upendra declared that Baburam and Mukunda were not dead and that they should be killed. Accordingly Upendra, Sankarsan, Khetu, Gaduru, Brusava, Dhela, Rama and Boda returned to the spot, and the others went away to the village. Upendra dealt one blow with his Bala on the head of Mukunda who was lying injured on the field. Brusava dealt a blow with his axe on the head of Baburam who was then sitting on the field. Khetu stabbed on the bead and the leg of Baburam with an arrow. Others assaulted him with lath is. Then Upendra took the axe from the hand of Brusava and dealt blows on the right leg of Baburam with its back side. Managobinda (p.w. 1)., son of Mukunda, was seeing the incident from a distance of 100 yards from the place of assault. On the suggestion of Dhela, all the 8 accused persons chased him upto a distance of 30 to 40 cubits and then returned to the spot. They went back to the village proclaiming this victory. P.W. 1 went to the spot and found Baburam and Mukunda lying dead.

(3.) THE next question for consideration is as to who was in possession of the disputed land. There is no dispute that the land Bold by Karan to Brusava. Khetu and Guduru constituted 13 Kitas of land. The disputed 3 Kitas of land constitute a part thereof. P.W. 1 asserts that there was no partition by metes and hounds, but the different members of the family were possessing separate portions according to this convenience. The onus was on the offence to establish that there was a complete partition by metes and bounds. No such evidence has been adduced. The prosecution case that there was separate possession for convenience and no partition by metes and bounds, is acceptable. P.W. 1 admitted in examination -in -chief that during the life time of Karan he was cultivating 11 Kitas out of the 13 Kitas, and the rest 2 Kitas were cultivated by Mukunda and Baburam separately. This admission supports the defence version that so long as Karan was alive, he was in possession of the entice 13 Kitas. In cross -examination p.w. 1 wanted to dilute the aforesaid admission by saying that he made such a statement by mistake. We are not prepared to accept the version in cross -examination. We therefore hold that Karan was in possession of the 13 Kitas of land until the date of sale. Though Karan was in separate possession of these 13 Kitas for convenience, he was not entitled in law to transfer the entice land to the vendees who were strangers. Until partition by metes and bounds takes place, each of the cosharers had his own interest in every jot of land. There is no knowing that the lands in possession of one cosharer for convenience would not be allotted to the share of another cosharer who was not in possession thereof. The sale effected by Karan thus aroused resentment in Baburam and Mnkunda. Accordingly they raised objection at the time of the registration of the sale deed though such objection was overruled. Despite the fact that an order under Section 145, Code of Criminal Procedure was passed in favour of the vendees, Baburam and Mukunda successfully removed the crops, and the criminal action taken against them ended in acquittal. They also continued to remove the crops in the year 1964. The criminal case under Section 379, Indian Penal Code ended in acquittal just within a month prior to the date of occurrence. The aforesaid circumstances unmistakably will show that though Karan was in possession of the disputed land till the date of the sale, Baburam and Mukunda did not allow the vendees to take possession of the disputed land. In the year of occurrence, it is they who cultivated the land and sowed paddy thereon. The paddy seedlings had already become 3 to 4 inches high. Though the defence taken is that the accused persons were going -with ploughs on the way by the side of the disputes land to another piece of land purchased by them merely or the purpose of cultivation as it was lying fallow, there is no satisfactory evidence in support of such a case. The fact that bullocks were yoked to the ploughs on the disputed land which had paddy seedlings is clear evidence that the accused wanted to destroy the paddy seedlings. If the accused had grown the paddy, there would he no desise on this part to go heavily armed to destroy the paddy seedlings. This circumstance strongly corroborates the evidence of p.ws. 1, 8 and 10, though there is some discrepancy in this evidence. P.W. 10 owns lands to the contiguous west of the disputed land. In view of the aforesaid strong circumstance and the history of the litigation beginning from 1960 subsequent to the transfer by Karan following that Baburam and Mukunda did not want to part with this lands, we are clearly of opinion that from 1960 onwards the deceased were in possession and in the year of occurrence Baburam and Mukunda cultivated the, disputed land and Bowed paddy thereon. The paddy seedlings belonged to the deceased.