Arta Biswal and Others vs State of Orissa

L. Mohapatra, J.—All the three Appellants having been convicted for commission offence u/s 302/34 of the Penal Code and sentenced to imprisonment for life by learned Sessions Judge, Mayurbhanj have preferred this appeal.

Case of the prosecution is that one Aila Bewa had three daughters namely; Debi, Sabana and Labana. In the year 1991 during Makara said Aila Bewa divided her landed property amongst three daughters. After such division of property Saban a and her father-in-law came to the village for the purpose of cultivation of land that fell to the share of Sabana and they engaged three persons, namely Arjuna Barsalia, Sukra Barsalia and Nanda Kishore Biswal to plough the land. On the date of occurrence while all these persons were ploughing the land in her presence and in presence of her father-in-law, the three accused persons came armed with Barsi and Katuri. Appellant Arta asked Arjuna Barsalia to stop ploughing and when Arjuna refused Arta is alleged to have snatched the Barsi from the hands of accused Debi and dealt one blow on the backside neck of Arjuna Barsalia. Due to such assault Arjuna Barsalia sustained bleeding injury and fell down on the ground whereafter the accused-Appellant Sarat Biswal dealt 3 to 4 blows on the head of Arjuna with the sharp side of Katuri resulting in death of Arjuna in the field itself. Sabana and other persons present nearby raised hullah and after some people gathered they removed the deceased to the village and then to the hospital. Surendra Biswal who witnessed the occurrence went to Khunta police station and lodged F.I.R. On these allegations the F.I.R. was registered for commission of offence u/s 302/34 of the Penal Code and after investigation charge-sheet was submitted for commission of the said offences.

Ten witnesses were examined on behalf of the prosecution but No. witness was examined on behalf of the defence. On the basis of the evidence of eye-witnesses examined during trial as well as the post-mortem report the learned Sessions Judge found all the Appellants guilty of the charges and convicted them thereunder.

Shri S.D. Das, learned senior counsel appearing on behalf of the Appellants challenged the findings of the trial Court basically on two grounds. According to Sri Das, Debi (Appellant No. 2) is the eldest daughter of Ailla and Appellant No. 1 Arta Biswal is the husband of Debi. Arta Biswal was itatum son-in-law and was in possession of the entire properties of Aila and was also cultivating the same. On the basis of above it is submitted by Sri Das that in exercise of right private defence of properties the Appellants prevented the deceased and other members from entering into the land and cultivating same and in the process the deceased died. Second submission of Sri Das is that there being No. material to support the charge u/s 34 of the Penal Code, considering the nature of evidence available against the Appellant No. 2, conviction u/s 302 of the Penal Code is not sustainable.

Learned Additional Government Advocate, on the other hand, submitted that after division of the properties among the three daughters of Aila it cannot be said that Appellant No. 1 was in cultivating possession of the entire properties of Aila. Since the prosecution case is specific to the extent that Saban a with the help of her father-in-law and some labourers was cultivating the land that fell to her share, right of private defence to property is not available to the Appellants. He also submitted that the conduct of the Appellants clearly indicates ingredients of Section 34 of the Penal Code and therefore conviction of Appellant No. 2 along with two other Appellants for commission of offence u/s 302/34 of the Penal Code was justified.

So far as first question raised by Sri Das is concerned, prosecution case is specific to the extent that Aila in the year 1991 during Makara had divided her properties into three parts, allotted the same in favour of her three daughters namely, Appellant No. 2, Sabana and Labana. In this connection evidence of P.W. 5 has relevance. P.W. 5 is Sabana who in her deposition has stated that her mother had four Manas of land and had gifted one Mana to Appellant No. 2 under a registered document. A few days after Makara her mother distributed rest of the land and have half Mana of land to each of other daughters and kept one and half Manas of land for herself. Distribution of land was doe in presence of Panchayat members. This witness has further stated that she got her share in Astadhipa Chaka and Appellant No. 2 got her share in Gohiradhipa Chaka. Admittedly, the occurrence took place in the land at Astadhipa Chaka. Nothing has been brought out in cross-examination to disbelief this witness so far as distribution of land and allotment of property at different places is concerned. There being No. dispute that the land in Astadhipa Chaka fell to the share of Sabana, Appellant No. 2 had absolutely No. right over the said property and therefore right of private defence in respect of the property is not available to the Appellants as the occurrence took place on a piece of land which did not belong to the Appellants and belonged to Sabana in whose favour the same had been allotted. In view of the above the first point raised by the Learned Counsel for the Appellants fails.

So far as the second ground taken by Sri Das is concerned, it is necessary to refer to the evidence of eye-witnesses who are P.Ws. 1,2,3 and 5. P.W. 1 is the informant and an eye-witness to the occurrence. This witness has specifically stated that when Sabana and her father-in-law were present in the land, which was being cultivated by the deceased and two others engaged by them, all the Appellants came to the spot. Appellant No. 2 was holding a barsi and Appellant No. 3 was holding a Katuri. It is also alleged that Appellant No. 1 snatched Bars; from the hands of Appellant No. 2 and gave one blow on the neck of the deceased and when the deceased fell down Appellant No. 3 dealt three blows by means of Katuri on the head. Similar is the evidence of other witnesses and there is nothing in cross�examination to disbelieve these witnesses. On careful examination of the evidence of these witnesses it is found that during cross-examination these whiteness have been mostly put question with regard to allotment of properties and so far as assault on the deceased is concerned, much of cross-examination has not been done.

Now question that arises for consideration is whether Appellant No. 2 who admittedly has not assaulted the deceased at all can be convicted with help of Section 34 of the Penal Code. There is No. evidence on record to show-that there was any meeting of minds prior to the incident or the Appellants had made any plan to commit such an offence. The only evidence available before the Court is that the three Appellants came to the place of occurrence and out of them Appellant No. 2 was holding a Barsi and Appellant No. 3 was holding a Katuri. Learned Counsel for the State submitted that if there was No. meeting of minds or decision to commit such offence the Appellants could not come to the place of occurrence with arMs. We are unable to accept such contention of learned Addl. Government Advocate since the occurrence took place in a tribal area and undisputedly in tribal areas people ordinarily move with some weapons, such as axe, katuri, etc. Merely because two of the Appellants were holding Barsi and Katuri which is ordinarily used during cultivation, it cannot be said that there was a prior meeting of minds for committing such offence. Admittedly, Appellant No. 2 has not taken part in assaulting the deceased and the only allegation is that she had come to the spot with Barsi in her hand. We are, therefore, of the view that ingredients of Section 34 of the Penal Code are not satisfied, we do No. find any material to convict Appellant No. 2 u/s 302 of the Penal Code. So far as Appellants 1 and 3 are concerned, considering the evidence of eye-witness that both of them assaulted the deceased by means of sharp cutting weapons and corresponding injuries have also been found by doctor (P.W. 8) who conducted post-mortem examination, we hold that both of them are guilty of offence u/s 302 of the Penal Code.

In view of discussions made above, we hold Appellants 1 and 3 guilty of commission of offence u/s 302 of the Penal Code and accordingly dismiss the appeal so far as those two Appellants are concerned.

So far as Appellant No. 2, Debi Biswal, is concerned, we do not find her guilty of the charges and accordingly the appeal stands allowed so far as Appellant No. 2 is concerned.

The appeal is accordingly allowed in part.