Maheswari Malati vs The State

B.K. Ray, J.—The Appellant in this appeal stands convicted and sentenced to R.I. for 2 years u/s 326, Indian Penal Code by the learned Sessions Judge. Puri. Before the Sessions Judge, the Appellant and 11 others were tried together, in ST No. 24 of 1973 out of which the present appeal arises. All those were tried in the Court below were charged under Sections 447 and 148 Indian Penal Code. Except the Appellant 11 others were further charged u/s 326/149, Indian Penal Code. Of these 11 persons Dhoia and Baishnab were also charged u/s 323 and 324, Indian Penal Code respectively. Appellant Maheswar was alone charged u/s 326, Indian Penal Code. All those who were tried were acquitted except the Appellant who was convicted and sentenced as mentioned above. Hence the present appeal.

The case of the prosecution may be briefly stated thus: The Bhois of Narasinghpur were in joint cultivating possession of a piece of land in Masanikanta Chal. This land belonged to Emar Math. Previous to the year of occurrence the Bhois were raising Biri and Kulthi crops in the land. But in the year 1970 they decided to raise paddy crops thereon and so they prepared the land for paddy cultivation. On 21-7-1970 Bhima Bhoi (p.w.6), Kela Bhoi (p.w.10) along with 5 female members of the Bhoi family including Uttam Bhoiani (p.w.7) and Chanda Bewa (p.w.8) went to the land for ploughing and transplanting paddy seedlings thereon. While they were engaged in transplanting operation at about 2 p. m. Puna Malati, since deceased and the 12 persons who were tried in the Court below arrived and objected to the Bhois cultivating the land. There was exchange of words and Bhima p.w. 6 insisted that he had a right to cultivate the land. Puna thereupon trusted a Kunta into the belly of Bhima (p.w.6). When Kela (p.w.10) intervened the Appellant dealt a blow on his right fore-arm with a pharsa.

After the above occurrence took place, an FIR was lodged on 22-7-1970 at 1 p.m. at the spot where the police had come to investigate into a counter case started upon an FIR (Ext. 16) lodged by Baishnab one of the accused in the Court below since acquitted.

The plea of the Appellant as well as the other co-accused persons in the Court below was that they were in cultivating possession of the disputed land on the date of occurrence. When the deceased Puna and his brothers and his servants were engaged in transplating operation on the land in the afternoon the Bhois namely Bhima, Arjuna and Loka and others went to the disputed land armed with deadly weapons with a view to forcibly dispossess the Appellant''s party and assaulted the deceased Puna and his partymen. As a result of the assault, the deceased Puna died at the spot and the other members of the Appellant''s party were injured.

Out of the 14 p. ws. examined for the prosecution p.ws.4, 6 to 10 and 13 are witnesses belonging to the Bhoi caste. P. ws. 1 to 3 and 12 are eye witnesses who claim to have been the occurrence from a distance. P.w. 5 is the doctor and p.w. 14 is the I.O.

On the question of possession of the disputed land the Court below has found that the prosecution has not been able to establish that possession of the land was with the Bhois. It has been further held that in view of the evidence led in the case no definite finding can be arrived at so to which party was in actual possession of the disputed land on the date of occurrence. The following passage from the judgment of the Court below may be quoted here for reference in this connection:

Except a bald assertion that the Bhois are in possession of the disputed land the prosecution has not produced any documentary evidence in proof of the possession of the disputed land by the Bhois. Admittedly deceased Puna Malati and the Bhois have lands adjoining to the disputed land and 50 there are equal probabilities for either of them to encroach into the disputed land by the date of the occurrence.... I find that the nature of evidence in the case is such that it leaves room for doubt as to who were actually in possession of the disputed land by the date of occurrence.

After going through the relevant evidence on the question of possession 1 am convinced that neither party has been able to prove their respective possession of the disputed land.

None of the p. ws. who claim to be the eye witnesses to the occurrence say anything about the causing of death of Puna Malati. Even P. ws. 4,6,7,8,9 and 10 who claim to have been injured in the occurrence by the members of the Appellant''s party do not come out with any explanation as to under what circumstances Puna was killed in the occurrence. The prosecution has also not come out with any reasonable explanation regarding the injuries sustained by the accused persons during the occurrence. This being the position the only reasonable conclusions that can be reached are that the prosecution version as to how the occurrence stated is not acceptable and that the prosecution case that when p. ws. 6,7,8 and 10 along with some Bhoi females were engaged in transplanting operation on the disputed land, the Appellant''s party came and attacked the Bhois is not believable. The learned sessions Judge has also arrived at the same conclusion as appears from the following passages of his judgment quoted below:

If really p.ws. 6 and 10 were to be on the disputed land along with females without having any weapons, then it is not possible that Puna who made a panned attack should have died on the disputed land receiving fatal injuries,

So the only justifiable inference is that the prosecution version, regarding the origin of the trouble cannot be accepted and the prosecution story that p. ws. 6,7,8 and 10 along with 3 other Bhoi females went to the disputed land first and that while they were engaged in transplantation the Malti brothers came subsequently and attacked them, is not believable.

From the number of the injured persons and the nature of the injuries sustained the probabilities are against the theory that members of one of the parties were the aggressors while the members of the other party were merely the victims of aggression.

So the only reasonable inference is that the occurrence was the result of a mutual fight between the parties, but then it can nut be said that it was a case of premedicated pitched battle between the parties as in that case the consequences would have been more fatal to both the parties.

A reading of the entire evidence on record goes to show that the eye witnesses to the occurrence are deliberately suppressing the truth w hen they plead ignorance regarding the circumstances that led to the death of Puna one of the members of the Appellants party. The Court below has also found that the prosecution evidence regarding the story of assault by Baishnab and Dhoia, the members of the Appellant party is not believable. On this finding Baishnab and Dhoia have been acquitted. In view of these findings and in view of the fact that the prosecution witnesses are not coming forward with a true story as to how the occurrence took place and as to how Puna died and several members of the Appellant''s party got themselves severely injured the evidence led on the side of the prosecution has to be rejected.

In the case reported in Kashinath Patra and Anr. v. State 24 (1958) C.L.T. 25. the prosecution version was that there was a mutual fight and the accused party started the assault. Some of the accused received injuries in course of the incident. But the prosecution did not offer any explanation. This Court in the said case therefore held that the prosecution witnesses were not reliable since vital part of the occurrence had been suppressed by them and hence it was not proper for a Court to conjecture as to how the occurrence actually took place. The prosecution story as to how the occurrence started in the present case having been disbelieved it was not open to the Court below to conjecture about the manner in which the occurrence started. The aforesaid view finds support from the decision in Balaka Singh and Others Vs. The State of Punjab, , which in its turn has relied upon an earlier decision reported in Gajanand and Others Vs. State of Uttar Pradesh, . But has been laid down in that decision that the Court must make an attempt to separate the grain from the chaff and that this could only be possible where the truth is operable from the falsehood. So when truth cannot be separated from falsehood on account of the two being inextricantly mixed up the Court cannot make out an absolutely new case for the prosecution by conjecture: The case before me is of a similar nature as it is very difficult to ascertain as to which part of the evidence of the prosecution witness is true and which part is false. That being so it will be risky to rely on the prosecution evidence and maintain the conviction of the Appellant. Reference in this connection may be made also to decisions of this Court reported in Nabin Patra v. The State 1971 (2) C.W.R. 157; Brundaban Jena and 4 Ors. v. State 1971 (2) C.W.R. 878; Chandrai Majhi v. State 1971 (2) C.W.R. 884. Being confronted with this position it is argued by the learned Standing counsel for the State that the nature of evidence led in the case reveal that it was a case of free fight between two rival parties, namely the Appellant''s party and the Bhois. Once such a conclusion is reached it is urged each of the members of bath the parties must be held responsible for his own act. True if it were a case of free fight what is commended by the learned Standing counsel would have been accepted. But on the question as to whether an occurrence of the present nature will be deemed to be a free fight between the rival groups. It is necessary to have a clear idea about the term "free fight". In this connection reference may be made to a decision reported in Ahmed Sher and Ors. v. Emperor A.I R, 1981 Lab. 518. In that decision a free fight has been said to be one when both sides mean to fight from the start go out to fight and there is a pirched battle. It has been further said that the question of who attacks and who defends in such a fight is wholly immaterial and depends upon the tactics adopted by the rival commanders. In the decision reported in Gajanand and Others Vs. State of Uttar Pradesh, , their Lordships have adopted the conception of a free fight as given in the decision reported in Ahmed Sher and Ors. v. Emperor A.I R, 1981 Lab. 518. Applying the test as given in the aforesaid 2 decisions it cannot be said by any stretch of imagination that there was a free fight in the present case between the two rival groups. In the absence of anything to show that both parties went out for a fight the scuffle that ensued between the Appellant''s party of the Bhois cannot be said to be a free fight. As has been indicated above the manner in which the occurrence started remains obscure. The evidence of the prosecution witnesses does not throw any light as to how Puna one of the members of the Appellant''s party was killed and as to how several members of the Appellant''s party were seriously injured. That clearly goes to show that the prosecution witnesses are deliberately suppressing the truth. The ultimate result therefore is that on such unreliable evidence led on the side of the prosecution there can be no conviction.

In the result, I allow the appeal, set aside the order of conviction and sentence passed against the Appellant and acquit him. The bail bond furnished by the Appellant be discharged.