CHINU PATEL Vs. STATE OF ORISSA

JUDGEMENT

(1.) This appeal is preferred against the judgement of the learned Additional Sessions Judge, Sambalpur in S.T. No. 13/1 of 1982 convicting the five appellants under Sections 148, 325/149 and 323, I.P.C. and sentencing each of them thereunder to undergo R.I. for two years on each of the first two counts and to undergo R.I. for one year on the 3rd count, with a direction that the sentences so imposed should run concurrently.

(2.) The prosecution case, briefly stated, is as follows : On 13-8-80 at about noon-time the accused persons placed a 'Dhair' (an instrument for catching fish) on the water channel leading from the, Village tank to the Land of deceased Mandhata Patel. As a result of the placing of the 'Dhair' the flow of the water in the channel was obstructed and water overflowed into the land of the deceased resulting in the deposit of sand in his land. On coming to know about it the deceased came to the place where the 'dhair' was kept and raising objection about it, carried away the 'Dhair' despite protests of the accused parsons, stating that he would place the matter before the Panchayat and show them the 'Dhair'. Sometime thereafter as the deceased and his wife came out of their house to dry boiled paddy, the six accused persons dragged deceased Mandhata to a place in front of their house and assaulted him there with a Bhar stick and lathis causing fatal injuries on his person. When Banamali Patel (P.W. 14) the brother of the deceased, and Shanti Patel (P.W. 11), the wife of the deceased, intervened to rescue the deceased from being further assaulted, the accused persons assaulted there also and pelted stones them. The deceased was taken to Burla hospital for better treatment and there he died on 15-8-80. Banamali Patel reported about the occurrence to the police and on the basis of his report, the police proceeded with the investigation of the case and after completion of the investigation filed the charge-sheet against the appellants and one Pandaba Patel, since acquitted.

(3.) The accused persons pleaded that the occurrence had not taken place in the manner alleged by the prosecution. According to the defence the deceased and his brother P.W. 14 forcibly entered into the house of the accused persons by breaking open the door and attempted to assault accused Chinu and his son Parricide Patel when they shouted and on hearing their shouts, accused Shankar, Mandhata and Jaga, the three other sons of Chinu arrived there each holding a stick and thereafter Banamali and the deceased assaulted the accused persons and in the course of such assault, as P.W. 14 attempted to assault accused Jaga, the latter sat down, when the blow given by P.W. 14 hit the hedge of the deceased. The defence examined D.Ws. 1, 2 and 3 in support of their plea.