Samal Kisku vs The State of Orissa

R.N. Misra, J.—The Appellant has been convicted u/s 302, Indian Penal Code by the learned Sessions Judge of Balasore and sentenced to Imprisonment for life. This appeal against the said conviction was originally heard by a Division Bench consisting of my learned brothers Acharya and Mohanti, JJ. and as they were equally divided in opinion - Acharya, J. holding that the prosecution had failed to establish its case and Mohanti, J. upholding the conviction - the appeal has been laid before me as provided u/s 429 at the Code of Criminal Procedure, 1898. As laid down by the Supreme Court in Babu and Others Vs. State of Uttar Pradesh, , and Hethubha alias Jithuba Madhuba and Others Vs. The State of Gujarat, . I have to deal with the whole case.

Twenty-two persons including the Appellant were sent up for trial on the allegation that on 17-11-1970 (at about 8 a.m.) they had murdered one Krishna Prasad Mohanty. His son Ratnakar (p.w. 2) purchased 50 decimals of land appertaining to plot No. 301 along with certain other property from one Surei Tudu by a registered sale deed dated 4-5-1970 ,(Exhibit-4) for a consideration of Rs. 2,000/-. The family of the deceased possessed the property from the date of purchase and had raised paddy crop during 1970. The crop was ready for harvest. On 17-11-1970 the accused persons forming themselves into an unlawful assembly started cutting the stand 109 crop. P.w. 14 informed the deceased about such illegal cutting. Thereupon the deceased, his brother (p.w. 1), his son (p.w. 2), his nephew (P.w. 4) along with some others came to the land. P.ws. 2 and 4 were injured by arrow shots of some of the accused persons. When the deceased came near the field the Appellant said to have given a stroke on the head of the deceased with the back side of an axe (M.O. I). By the impact of the stroke the deceased fell down and the Appellant is said to have given a second stroke. Thereafter three of the accused persons assaulted him with lathis and the deceased was found dead a little later at the spot.

P.w. 4 lodged the F.I.R. (Ext. 1). The Appellant denied the charge and pleaded complete innocence. His defence was that he was in possession of the 50 decimals of land on behalf of Surei Tudu, his brother-in law, and had raised the paddy crop in question. When he was cutting the paddy grown by him, the diseased and his people went there being armed with gun, bows and arrows and he ran away out of fear from the spot along with the cutters. He had no knowledge as to how the deceased died.

Eighteen witnesses were examined on behalf of the prosecution. P.ws. 1 to 4, 6 to 9 and 11 claimed to have seen the occurrence. The learned trial Judge dealt with the question of possession of the property, raising of the crop and the occurrence. He accepted the evidence led by the prosecution that p.w. 2 and his father were in possession of the property, that they had raised the crop of 1970 and that the Appellant had given two blows ''on the head of the deceased with the back side of the axe (M.O. I.) He, accordingly, while acquitting all others, convicted and sentenced the Appellant in the manner already indicated.

Before the Division Bench counsel appearing on behalf of the Appellant amicus curiae took the stand that the evidence in regard to possession and raising of the crop had not been properly assessed by the learned trial Judge and. therefore, he had come to an erroneous conclusion that p.w. 2 and his father were in possession of the property and had grown the crop of 19,0. Similarly it was contended that the learned trial Judge overlooked the evidence of the doctor and came to an erroneous conclusion that deceased died of injuries caused by M.O. I and that too by the Appellant.

That the land belonged to Surei Tudu is not in dispute. On 4-5-1970 p.w. 2 obtained a registered sale deed from Surei conveying title of this property to him for a consideration of Rs. 2000/. Surei Tudu is a member of the Scheduled Tribes and p.w. 2 being a non-Scheduled Tribe man, permission of the competent authority for the transfer was necessary as provided u/s 22 of the Orissa Land Reforms Act, (Act 16 of 1960). In O.L.R. Case No. 740/70 an application for permission by Surei was dealt with. As Exhibit-B shows, the appropriate authority refused to grant permission by order dated 29-5-1970 - more than three weeks after the sale deed - because the Appellant was willing to buy the property. There is material on record that p.w. 2 and members of his family had engaged themselves in amassing property by purchase from members of the Scheduled Tribes in the locality.

P.ws. 1, 2, 6 and 12 are witnesses on the question of possession and growing of the crop in 1970 on the property. P.w. 1 is the brother of the deceased and p.w. 2 is the son of the deceased p.w. 6 claimed to be a neighbouring owner though belonging to a different village, while p.w. II claimed to be a resident of the same village where the property lies. The sale deed (Ext. 4), the endorsement therein by the registering authority of payment of the full consideration before him and the oral evidence of these four witnesses, led Mohanti, J. to hold that p.w. 2 and members of his family were in possession of the property. On the other hand, Acharya, J. found that Surei Tudu the owner of the property was living at a distance and the Appellant, his brother-in-law, was looking after the property. It is he who had resisted the attempt of p.w. 2''s buying the property and had offered to pay the same consideration as p.w. 2 was offering to the owner. Since the Appellant was in possession and management of the property and had objected to the sale under Ext. 4, the vendee could not have obtained possession of the property. As to when possession was actually delivered to p.w. 2 the evidence is not very clear. He himself has stated that the disputed property had been purchased by his father (deceased) in his name and in 1970, they had grown the paddy crop by transplantation. He appears to have no knowledge about the negotiation, actual purchase and registration of the sale deed. He named Govinda Patra, Baya Singh and Basu Singh to be the persons undertook the agricultural operations. P.ws. 11 and 14 are Baya Singh and Gobinda Patra respectively. P.w. 11 h as not given any evidence regarding possession or cultivation. P.w. 14 has also not spoken about these aspects.

P.w. 1 is the younger brother of the deceased living in joint mess. In his evidence, in chief he has referred to his bad relationship with the Appellant on account of an earlier deal in land. According to him the vendor had identified the land 8 days after the sale deed. P.w. 2 has admitted that the disputed property is located only 100 cubics away from the house of the Appellant. The stand of the accused has been that he was in management of the property and was raising the crop on behalf of his brother-in-law. The relationship of the Appellant with the vendor is not in dispute. Support was claimed from the evidence of p.w. 6 who is said to be a neighbouring land owner for the claim of possession by the prosecution party. Surei is admittedly a man from a different place. P.w. 6''s evidence that for 15 years preceding the sale under Ext. 4. Surei was cultivating the land is not acceptable. On the other hand, in view of his admitted relationship with the Appellant and the land being located close to the house of the Appellant, it is reasonable to hold that the Appellant was actually cultivating the land. Merely on obtaining a sale deed from Surei possession of the property could not have been taken unless Appellant gave it up. The fact that Appellant objected before the competent authority when the question of grant of permission came up and upon his offering to but the property permission was refused probabilises the Appellant''s claim of continuing possession over the property. P.w. 6 is not definite as to when possession was made over to p.w. 2 or the deceased on his behalf. P.w. 12 has no lands in the locality and does not appear to be a competent witness to speak about possession or the growing of the crop. On the other hand, he has spoken that p.w. 1 was getting the land cultivated through labourers. As I have already pointed out, such labourers according to p.w. 2 were three and two of them have been examined as p.ws. 11 and 14 but have not spoken about possession or growing of the crop. The evidence in regard to obtaining of possession of the land from Surei, cultivating the land after purchase and growing the crop by transplantation is poor and the assertions by the prosecution have not been proved. I would, therefore, hold that the prosecution has failed to establish its possession and growing of the crop in the year of dispute.

Next comes the evidence relating to the occurrence. That Krushna died as a result of assault on him has been sufficiently established by the prosecution. The question for consideration is as to whether such death was the result of two blows said to have been inflicted by the Appellant on his head by means of the axe (M.O. I). The contention on behalf of the Appellant that witnesses to the occurrence should be disbelieved as they are vitally interested In the prosecution does Dot at all appeal to me. It is true that p.ws. 1, 2, and 4 are closely related. As already stated p.w. 1 is the brother of the deceased while p.w. 2 is the son of the deceased and p.w. 4 is the son of p.w. 1. P.w. 3 is ,a tailor connected with p.w. 1. Mere relationship by blood is no ground -to discard their evidence. On the other hand, close relations are prone to implicate the true assailant only because there would be anxiety to avenge the mischief done.

The learned trial Judge disbelieved the prosecution case in regard to the formation of an unlawful assembly and assault by several accused persons on the deceased and other prosecution witness. The evidence of p.ws. 1, 2, 3, 4, 6, 7, 8 and 9 so far as the Appellant is concerned, is that when the deceased came to the spot, the Appellant who was having a bow and arrow, put them aside, picked up M.O. I and with it gave a blow on the head of the deceased. He fell down whereafter the Appellant dealt a second blow. Immediately thereafter accused Somai, Budha and Mahinsa gave lathi blows on the deceased. A little later the deceased was found to have died. P.w. 15 is the doctor who conducted the post-mortem examination. His evidence shows that there were mainly two external injuries and corresponding to them were two internal injuries which must have been responsible for bringing about the death. It is necessary to deal with the evidence of p.w. 15 at some length to resolve the dispute as to whether the injuries noticed by him could have been caused with M.O. 1. The injuries were as follows:

(i) Laceration 3" � 2" skull deep behind the left ear.

(ii) Laceration 2" � I" on the left ear.

The following internal injuries also found.

(iii) Fracture of the left temporal bone which extends to the best of the skull.

(iv) The arteries and veins below the fracture were crushed causing accumulation of one pound of blood clot beneath the intracranium.

(v) The injuries were ante-mortem in nature. In my opinion the cause of death was due to shock and haemorrhage due to severe injuries on head.

He has further spoken in his evidence in chief:

The aforesaid two external injuries can be caused by M.O. I. I.O. made a query to which I reported as per Ext. 10/1. The internal injuries correspond to external injuries 1 and 2, viz; by such external injuries, the Internal injuries were also caused.

In cross-examination the doctor stated:

I examined the deadbody in the day light. What ever -external injuries were found by me have been mentioned in my report. I have examined dead-body carefully. Ordinarily such lacerted wounds correspond, with the weapon with which such injuries are caused....

The length of the weapon by which injury No. 1 was caused might be a less that 3". The length of the weapon touching the body may of 3" length or near about. Because both the external injuries 1 and 2 are closely situated Even if by the same weapon both the injuries might be caused, yet the dimension of injuries may be different due to this.

M.O. I. shows that its back side or pasa has a little elevation at its middle. Generally while biting this elevated portion will first touch the body. This elevated portion will be half an inch in dimension. The pass of M. O. I will be more than 1" and less than 2", viz; the length may be 11"..."By a blow of this weapon besides the dimension there will always be a depth of injury. In injury No. 2 I found no depth.

The evidence of the doctor thus categorically shows that the, dimension of the injuries was more than the length of the back side of the axe. Again the back side had an elevated portion which was bound to give a depth to the injuries. The result of the examination, however, shows that the injuries bore no depth. That would mean that the elevated portion on the back side of the pasa had not struck the head. Two features in the evidence of the doctor are most material - (i) the excess of more than 1" in the length-wise dimension of the injuries over the dimension of the back side of M.O. I; and (ii) absence of any depression or depth so far as the injuries are concerned. These indeed cast reasonable doubt as to whether the two injuries were caused by use of M.O. I.

There is dear evidence of the prosecution witness that a host of accused persons had surrounded the deceased before he was assaulted with M.O. I. There is equally dear evidence that the three accused persons who have since been acquitted gave lathi blows on the deceased. It is quite possible that the injuries found on the deceased were caused by lathis and not by the Appellant with M.O. I. There was certainly a melee and it must have been very difficult for the prosecution witnesses to dearly observe the different assailants giving the different blows. It is not for me to conjecture as to how the injuries found by the doctor must have come to be suffered by the deceased. What is necessary to find is as to whether the prosecution case that the Appellant gave two blows with M.O. I on the head of the deceased resulting in his death has been established. The evidence of p.w. 15 gives rise to reasonable doubt on these vital aspects of the matter and the benefit of such doubt must necessarily go to the Appellant. I must conclude by holding that the prosecution has not -been able to prove by clear evidence that it is the Appellant and nobody else who caused the fatal injuries on the deceased by means of the axe (M.O. I).

It is necessary to examine the claim of right of private defence. In fact, the defence stand does not admit of such a claim because it is not his case that there was any attack from the prosecution to repel which force had been used from the side of the defence resulting in the death of the deceased. On the other hand, he took the stand that when the prosecution party came with arms, he and his men receded from the field. Such defence is not compatible with a face-to-face struggle giving rise to a claim of right of private defence against brutal assaults leading to death.

On the analysis indicated above my conclusions are;

(i) The prosecution has failed to establish that following the sale (Ext. 4) p.w. 2 the vendee and his relations came to possess the disputed property and had grown the paddy crop in the year 1970.

(ii) It has not been proved that the Appellant gave two strokes with M.O. I causing the death of Krushna. On these findings the Appellant is entitled to acquittal. Since I have reached the conclusion which Acharya, J. had reached, the appeal has to be allowed and the Appellant must be acquitted and set at liberty forthwith.