Decided on September 14,1978

Govind Chandra Biswal And Ors. Respondents


S. Acharya, J. - (1.) THIS is an appeal under Section 378 of the Code of Criminal Procedure against the judgment of acquittal passed by the Sessions Judge, Mayurbhanj -Keonjhar, Baripada in S.T. Case No. 89 -M of 1974. Respondents Krushna Chandra Biswal and Pratap Chandra Biswal are the sons of Respondent Govinda Chandra Biswal.
(2.) THE prosecution case in short is that Bhagabat Das (P.W. 9) and his father Khudia Das (deceased) took delivery of possession of 5 mans of land in village Nachhipur in execution of a decree of the Court of the Subordinate Judge, Baripada. Since that time P.W. 9 and the deceased used to possess the said land. On 4 -4 -1974 morning while P.W. 9 was ploughing the said land, the Respondents (hereinafter to be referred to as the 'accused persons') along with 10 others went to the said land to forcibly plough the same. On the land, accused Govinda Chandra Biswal asked P.W. 9 as to why he was ploughing the said land. When P.W. 9 replied that he was ploughing the said land as he got delivery of possession of the same under a decree of the Court, the accused persons and his party -men threatened to assault P.W. 9. At this P.W. 9 ran away from that place. On seeing all that, Puma Chandra Das the brother of P.W. 9, who had come to that place, went back to his house and informed his father Khudia Das about the above incident. Khudia Das immediately went to the said land and found that all the accused persons with their associates were ploughing the said land. At this Khudia Das asked the accused persons as to why they were ploughing the said land, but accused Krushna Chandra Biswal dealt a blow on the right shoulder of Khudia Das with an axe as a result of which Khudia Das fell down on the ground. Thereafter accused Pratap Biswal gave one blow with an axe on the chest of Khudia Das and accused Govinda dealt a few blows with a Bala on the deceased. Thereafter one Biswanath Biswal (not prosecuted) assaulted the deceased with a stick. On seeing this, P.W. 9, who was standing at some distance from the p lace of occurrence, ran back to the village out of fear and informed some villagers about the said occurrence. Some villagers along with P.W. 9 went to the spot and found the deceased lying dead with bleeding injuries. Thereafter, P.W. 9 lodged information about the occurrence at the Udala P.S. at 4 p.m. the same day. On the said Information, the F.I.R. Ext. was drawn up by P.W. 12, the officer -in -charge of that P.S., and he started investigation into the case. In course of the investigation, accused Govinda Chandra Biswal made the confessional statement, Ext. 8, before P.W. 5, the S.D.J.M. Udala on 8 -4 -1974. After investigation and commitment proceeding the accused persons stood their trial for an offence under Section 302/34. Indian Penal Code on the allegation that is furtherance of their common intention, they - intentionally caused the death of Khudia Das. All the three accused persons in their statement in the trial Court pleaded not guilty to the charge. Accused Krushna further stated that as the deceased with an axe in his hand chased him he whirled the Tangia in his hand in self defence and ran away from that place, but he did not know if the axe in his hand struck the deceased and caused any injury on him.
(3.) P .Ws. 4 and 9 are the two eye -witnesses to the occurrence. P.W. 6 is a pre -occurrence witness and P.W. 8 is a post -occurrence witness. P.W. 5 is the Magistrate who recorded the confessional statement, Ext. 8. of accused Govind Chandra Biswal. P.W. 11 is the Doctor who conducted the post -mortem examination. P.Ws. 1, 2, 3, 7 and 10 are formal witnesses of seizure etc. P.W. 12 is the I.O.;

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