Decided on April 10,1978

Bhagabat Mahanta Respondents


R.N.MISRA, J. - (1.) THIS appeal at the instance of the State of Orissa has been filed under Section 378 (1) of the Criminal Procedure Code against the judgment of acquittal passed by the learned Sessions Judge of Mayurbhanj -Keonjhar.
(2.) SHORTLY stated, the prosecution case was that Kusa, the deceased and his sons (P. Ws. 3 and 5) had cleared a piece of Government land in Sunarinali Chaka over which bushes had grown on 11th and 12th of Sept. 1974. On 14th of Sept. 1974, in the morning, these three people along with P. W. 4, a Samandhi of Kusa came with four ploughs, ploughed the land and sowed coolthy seeds. At that time the accused persons together with four or five labourers were ploughing a neighbouring plot of land belonging to Government. After some time Kusa found that his stock of seeds was exhausted and, therefore, he went home to get some more seeds. During his absence, accused Basudeb accompanied by some of his men entered into the plot cleared by Kusa and his sons and started re -ploughing it and sowing coolthy seeds. While they were doing so. Kusa returned and protested against the action of the accused persons. Bhagabat rushed at him with an axe dealt a blow with the blunt side of the axe on his head. Kusa sustained bleeding injuries, fell down and became unconscious. P. W. 5 snatched away the axe from Bhagabat's hands, but Bhagabat and Karunakar snatched it back from him and ran away from the spot. Kusa was removed to the hospital; First Information Report (Ext. 4) was lodged at the Police Station and a case under Section 325, I. P. C. was registered. Kusa expired at the hospital on 19.9.1974. Investigation followed and all the accused persons were charged of the offence under Section 147, I. P. C. while Bhagabat was in addition charged under Sections 148 and 302 of the I. P. C. The defence plea was one of denial. They took the stand that the land in question was in possession of Bhagabat by the date of occurrence and on that day accused Basudeb had come, sown coolthy and left. Bhagabat with his labourers was ploughing it with five ploughs. At that time the deceased Kusa holding an axe and P. W. 3 and 5 armed with lathis came there and started chasing Bhagabat with a view to assaulting him. Kusa had all the time raised his tangia. When Kusa was about to deal a blow with the tangia, Bhagabat snatched it from him and started whirling it in self -defence whereupon Kusa fell down probably being hit by the axe. P. Ws. 3 and 5 snatched away the tangia from Bhagabat's hands and thereupon he ran away in fear of life. The other accused persons were not present at the place of occurrence and had nothing to do with it. They were busy clearing the jungle at a distance.
(3.) PROSECUTION examined 8 witnesses in all of whom P. Ws. 3, 4 and 5. are said to be eye -witnesses. P. W. 1 was the doctor who carried the post -mortem examination while P. W. 2 was the Assistant Surgeon of the Primary Health Centre at Patna where the deceased had been admitted as an indoor patient and ultimately succumbed to his injuries. P. W. 6, a co -villager, is a seizure witness while P. Ws. 7 and 8 are the Police Officers, who were connected with the investigation. The learned Sessions Judge did not attach any importance to the evidence of P. Ws. 3 and 4 in considering the claim of Kusa's possession of the land in view of their evidence that they were not at the site prior to the date of occurrence. He also did not rely upon the evidence of D. W. 1 as it had not been suggested to the prosecution witnesses that D. W. 1 was present when the site had been cleared by Bhagabat and his associates. On the basis of the testimony of P. W. 5, he, however, came to the conclusion that the site had been cleared by Kusa prior to the date of occurrence and Kusa and his sons were thus in possession of the same by the time the occurrence took place. The learned Trial Judge came to hold on an assessment of the evidence that the charge under Section 147, I. P. C. had not been made out. He also found that the charge under Section 148, I. P. C. against Bhagabat cannot be sustained. With reference to the charge under Section 302, I. P. C. the learned Sessions Judge came to hold that P. W. 3 was not telling the truth. He found that P. W. 4 was giving a different version. He came to the ultimate conclusion that Bhagabat was entitled to whirl the axe in self -defence and if in the process of whirling the deceased sustained the injury which led to his death, Bhagabat could not be found to have committed the offence of murder. Accordingly, he acquitted all the accused persons.;

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