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2008 DIGILAW 830 (ORI)

PURNA CHANDRA NAG v. STATE OF ORISSA

2008-09-12

B.P.RAY, L.MOHAPATRA

body2008
JUDGMENT : B.P. Ray, J. - Both the appeals having arisen from out of the Judgment and order dated 29.06.1996 passed by learned Sessions Judge, Boudh Kandhamals : Phulabani in S.T. Case No. 20 of 1995 are heard analogously and disposed of by this common Judgment. 2. Appellant No. 1 - Purna Chandra Nag and Appellant No. 2-Nitei @ Nityananda Nag have been convicted for offence u/s 302, I.P.C. read with Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short, the S.C. & S.T. (P.A.) Act) and sentenced to life imprisonment with fine of Rs. 3000/- each, in default of payment of fine, each of them is to undergo R.I. for three months more. Appellant No. 3-Gour Chandra Nag and Appellant No. 4 Subhra @ Subhramanyam Nag have been convicted for the offence u/s 326, I.P.C. read with Section 3(2)(v) S.C. & S.T. (P.A.) Act, and sentenced to undergo R.I. for life and to pay a fine of Rs. 2,000/- each, in default of payment of fine, each of the them is to undergo further R.I. for three months. Appellant-Haribola Nag (in Jail Criminal Appeal) has also been convicted for offence u/s 326, I.P.C. read with Section 3(2)(v) of S.C. & S.T. (P.A.) Act and sentenced to pay a fine of Rs. 2000/-, in default to undergo R.I. for three months more. 3. Prosecution case in brief is that on 3.7.1994 around 9 A.M., when some members of Scheduled Caste community, namely, Jayadev Luha, Jagdish Luha, Krutibas Luna, Bahadul Luha and Dhanu Khura, who are the residents of village Risibandha ploughing their land, which was purchased by them from their co-villager Dhobei Nag, the accused persons criminally trespassed into the purchased land, and in furtherance of their common object committed riot by using deadly weapons like medha, axe, tabilia, gun etc. Their sole purpose was to commit murder of Jayadeva Luha and they assaulted Jayadeva Luha by means of medha (thenga), axe and tabilia. Jayadeva Luha was shifted from the place of occurrence to the medical, where he was found dead. One Karmu Luha lodged the F.I.R. of the incident before the O.I.C., Manamunda P.S. and thereafter the investigation was set into motion. 4. During investigation, police held inquest and arranged post mortem examination of the dead body of Jayadeva Luha. Jayadeva Luha was shifted from the place of occurrence to the medical, where he was found dead. One Karmu Luha lodged the F.I.R. of the incident before the O.I.C., Manamunda P.S. and thereafter the investigation was set into motion. 4. During investigation, police held inquest and arranged post mortem examination of the dead body of Jayadeva Luha. Police seized the wearing apparels of the deceased after post mortem examination and seized the blood stained earth from the place of occurrence as well as from the panchayat road side. Police also seized the axes besides the sale deed of the purchased land and obtained the medical reports in respect of the injured persons. Police also sent the material objects for serological examination. After completion of investigation, police submitted charge sheet where after the case was committed to the Court of Session. 5. In order to substantiate its case, the prosecution has examined as many as 11 witnesses and produced several documents. P.W. 1 is the informant, P.Ws.2, 4 & 7 are the injured witnesses. P.W. 3 is the police constable who identified the dead body of the deceased to the post mortem doctor. P.Ws.5 & 6 are the eye witnesses to the occurrence. P.W.8 is the seller of disputed land and is also an eye witness, P.W.9 is the post mortem doctor. P.W. 10 is a doctor, who held medical examination on the injured persons and P.W.11 is the Investigating Officer. 6. In order to strengthen their case, the defence has examined 5 witnesses and also proved some documents. 7. The death of the deceased Jayadev is not in dispute. P.W. 9 has conducted the autopsy and has submitted the post mortem report under Ext.10. He has opined that the injuries found on the body of the deceased were all ante mortem in nature and homicidal as well. Therefore, it can be concluded that the deceased Jayadev died a homicidal death. The next point to determine is whether the Appellants are the authors of the said injuries and caused the death of the deceased. He has opined that the injuries found on the body of the deceased were all ante mortem in nature and homicidal as well. Therefore, it can be concluded that the deceased Jayadev died a homicidal death. The next point to determine is whether the Appellants are the authors of the said injuries and caused the death of the deceased. Learned Sessions Judge in order to record the order of conviction has relied upon the evidence of P.Ws.1, 2 and 4 P.W. 1 in his evidence has deposed that in the morning of the day of occurrence while he along with others was engaged in agricultural operation over their land the accused persons came running to the land and abused them. The Appellant Purna gave a lathi blow on the head of the deceased as a result of which he fell down. Thereafter the Appellant Nitei @ Nityananda (since dead) gave axe blows to the deceased. Subsequently, other Appellants gave blows by means of axe on the waist and back of the deceased. P.W.2 is another witness to the occurrence, who has testified that on the fateful day while in the morning hour they were ploughing the land, the accused persons rushed to the land being armed with thenga, axe etc. Appellant-Puma dealt a blow on the head of the deceased by means of thenga. Accused Nitei gave axe blows to the deceased and the other Appellants assaulted the deceased by means of axe on his back. This witness has received injuries on his person being assaulted by the accused persons in course of the occurrence. Therefore, his testimony carries much weight. His presence at the spot cannot be doubted. P.W.4 is also another injured, who was assaulted by the accused persons first. In his deposition he has stated that the Appellant-Purna dealt a medha blow on Jayadev, the deceased. Nitei gave blows on the deceased by means of axe and other Appellants assaulted the deceased by means of Tabilia on his back. The evidence of all the three witnesses are consistent and they corroborate each other. So far as the assault on the deceased is concerned, there is no discrepancy. Therefore, the evidence of the witnesses inspires confidence. From the ocular evidence as well as the medical evidence, it can safely be concluded that the injuries inflicted by the Appellants are the cause of death of the deceased. 8. So far as the assault on the deceased is concerned, there is no discrepancy. Therefore, the evidence of the witnesses inspires confidence. From the ocular evidence as well as the medical evidence, it can safely be concluded that the injuries inflicted by the Appellants are the cause of death of the deceased. 8. The next question falls for consideration is whether the accused persons have inflicted the injuries with the intention to cause death. They have taken a specific plea that the land in question was under their physical possession. On the date of occurrence the prosecution party trespassed into the land and started ploughing the same. When the accused persons protested they were assaulted, as a consequence, Appellant Goura and Subramanyam received injuries on their person. The accused persons, therefore, have raised the plea of right of private defence. To substantiate the aforesaid stand the accused persons have placed reliance on several orders passed u/s 145 Code of Criminal Procedure proceedings. The defence has proved different orders of the Executive Magistrate in 145 Code of Criminal Procedure proceedings and the same have been marked as Exts. D, E, F, G, H and J. Except Exts. E and H, none of the orders discloses the land particulars. In other words, there is no material to show that the present land was also in dispute in the previous proceeding. Therefore, those orders are of no consequence. As regard Exts. E and H are concerned, the same were passed in M.C. No. 40/63 and M.C. No. 42/63 respectively. The sale deed through which the prosecution party claims ownership and possession has been executed in 1993. The 145 Code of Criminal Procedure proceeding, which was initiated 30 years back can not form the basis for arriving at a conclusion that the accused persons were in possession of the land in question. 9. There is no dispute that Balabhadra was the owner of the land and Dhobei, the son of Balabhdra in the year 1993 has executed a sale deed in favour of the prosecution party. Even though there was some dispute relating to the land in 1963, it can not be said that the same was continuing till 1993 when the sale deed was executed. The case of the Appellants is that Balabhadra left the village as well as the possession of the land in dispute and shifted to Khairamal. Even though there was some dispute relating to the land in 1963, it can not be said that the same was continuing till 1993 when the sale deed was executed. The case of the Appellants is that Balabhadra left the village as well as the possession of the land in dispute and shifted to Khairamal. Admittedly, Balabhadra was a co-sharer. Accepting that Balabhadra shifted to some other village for his convenience, it cannot be said that he relinquished all his right, title over the land nor the same can automatically be terminated by mere shifting. From the above evidence the prosecution party can be held to be the title holder of the disputed land through Ext.9. It is also the accepted principle that possession follows title. As there is no clear evidence that the purchaser of the land i.e. the prosecution party had been dispossessed, it would be concluded that they were continuing in possession of the land till the date of occurrence. Therefore, exercise of right of private defence by the accused persons cannot be accepted. It is true that there is some dispute as to whether P.W.8 had the absolute right to transfer the land, as Ratan Nag, the ancestor of the Appellants, was also a co-sharer with Balabhadra Nag. But that gives rise to a civil dispute which needs to be adjudicated in appropriate Court of law. This certainly cannot give authority to the accused persons to exercise right of private defence and in exercise of the same it can go to the extent of causing death of a person. Further, there is no clear evidence that the accused persons were in physical possession of the land at the time of occurrence. Much reliance has been placed on the orders passed in the proceedings u/s 145 Code of Criminal Procedure. It has already been found that the orders in 145 Code of Criminal Procedure proceedings were passed 30 years back, much prior to the execution of the sale deed. The sale deed was executed on 7.6.1993 and the occurrence took place on 3.7.1994 i.e. after lapse of a year. No legal proceeding has been intimated during this period. If at all the accused persons were in possession of the land in ordinary course, they would have initiated legal action against the sale deed executed in favour of the prosecution party. No legal proceeding has been intimated during this period. If at all the accused persons were in possession of the land in ordinary course, they would have initiated legal action against the sale deed executed in favour of the prosecution party. Hence, it cannot be said that the accused persons were in possession of the land at the time of occurrence. Viewing from any angle there is no sufficient material to arrive at a conclusion that there was any ground for exercise of right of private defence by the accused persons. Since exercise of right of private defence could not be substantiated and the accused persons are found to have assaulted the deceased, it is to be seen whether the accused persons had the intention to cause death. 10. Appellant Puma had taken the plea of alibi. No evidence worth the name has been adduced in support of it. Mere taking a stand in the statement u/s 313 Code of Procedure Code would not be sufficient to prove the same. The witnesses for the prosecution have categorically deposed that Puma was present at the scene of occurrence and assaulted the prosecution party members. This evidence cannot be discarded on the bald statement made u/s 313 Code of Criminal Procedure. Therefore, the plea of the Appellant is rejected. 11. So far as the assault on the deceased by the Appellant No. 1 is concerned, all the witnesses unequivocally and consistently deposed that he gave a lathi blow to the deceased, which landed on his head. No further assault has been made by the Appellants. Only one blow had been given. During the course of autopsy three numbers of injuries were found on the skull of the deceased. The Medical Officer, P.W.9, in his opinion has stated that the external injury No. 1 is sufficient in ordinary course of nature to cause death. P.W.9 in his evidence has further deposed that the investigating officer had sent three axes and on examination of the said axes he furnished his opinion that besides other injuries, the injury No. 1 on the skull was possible by the axe. This witness while answering a query put by the Court has stated that reverse side of the axe may cause lacerated injury. All the witnesses to the occurrence have categorically deposed that Nitei assaulted the deceased on his head by means of axe. This witness while answering a query put by the Court has stated that reverse side of the axe may cause lacerated injury. All the witnesses to the occurrence have categorically deposed that Nitei assaulted the deceased on his head by means of axe. From the combined reading of the evidence of the eye witnesses and the opinion furnished by the doctors, who conducted the autopsy, it can safely be deducted that the injury No. 1 is attributable to Nitei. The other injuries on the head could have been caused by the blows given by the Appellants. Since the Appellant No. 1 has given only one blow and the said blow is not the cause of death, it would be reasonable to draw inference that he had no intention to commit culpable homicide amounting to murder which is punishable u/s 302 I.P.C. In that view of the matter, the Appellant No. 1 is guilty of the offence u/s 304 Part-II of the Indian Penal Code and is liable to be convicted there-under. Since he has already undergone imprisonment for more than 12 years, he can be sentenced to the period already undergone. So far the Appellant Nos.3 and 4 in Criminal Appeal No. 208/1996 and the Appellant in Jail Crl. Appeal No. 240/1996 are concerned, all of them have been convicted u/s 326 I.P.C. for causing grievous hurt to the deceased by use of dangerous weapons. Though the accused persons have assaulted the deceased with different weapons, but most of the blows have been given on the back. The doctor has not given any definite opinion that the injuries were grievous in nature. The Appellant in Jail Criminal Appeal No. 240/1996 has suffered 12 years and six months imprisonment. The Appellant No. 3 has undergone 2 years imprisonment and Appellant No. 4 was in custody for 7 months. The Appellant in Jail Criminal Appeal 240/1996 was aged about 45 years. The Appellant No. 3 and 4 in Criminal Appeal 208/1996 were 20 and 48 years respectively. In the meantime, 12 years have gone. Considering the age of the Appellants and the period of detention, it would be just and proper to sentence them for the period already undergone for their conviction u/s 326 I.P.C. 12. In the result, Criminal Appeal No. 208 of 1996 is allowed in part. In the meantime, 12 years have gone. Considering the age of the Appellants and the period of detention, it would be just and proper to sentence them for the period already undergone for their conviction u/s 326 I.P.C. 12. In the result, Criminal Appeal No. 208 of 1996 is allowed in part. The conviction of Appellant No. 1, Puma Chandra Nag u/s 302 I.P.C. is altered to Section 304 Part-II, I.P.C. and he is sentenced to imprisonment for the period already undergone. So far as the other Appellants in the said appeal are concerned, their conviction is maintained but the sentence is reduced to the period of imprisonment already undergone. 13. Jail Criminal Appeal No. 240 of 1996 is also allowed in part by maintaining conviction, but reducing the sentence to the period of imprisonment already undergone. L. Mohapatra, J. 14. I agree.