Orissa High Court
Laxmidhar Ganda vs State Of Orissa on 16 November, 1989
Equivalent citations: 1990CRILJ2566
JUDGMENT V. Gopalaswamy, J.
1. This appeal is preferred against the judgment of the learned Sessions Judge, BoudhKhendamala, Phulbani convicting the accused-appellant under Section 307, I.P.C. and sentencing him thereunder to imprisonment for life and further convicting him under Section 333, I.P.C. without imposing any separate sentence thereunder.
2. The prosecution case, briefly stated, is as follows:
During the relevant period Nimai Charan Das (PW. 2) was working as the Revenue Inspector of Balaskumpa Revenue Circle. Accused Laxmidhar Ganda was a resident of village Barikumpa, which comes under the revenue circle, Balakumpa. The accused was in possession of a portion of the Government land of Plot No. 927 as an encroacher and consequently there was an encroachment case pending against the accused in respect of the encroached land before the Tahasildar, Phulbani (P.W.6). In village Barikumpa, besides the accused there were several others who were having no homestead land. On 5-1-1985 the Tahasildar (PW. 6) in his camp at Balaskumpa dealt with the encroachment case record of the accused and other records relating to the allotment of homestead lands to the landless persons. As accused was also a person without any homestead land, the Tahasildar ordered that the accused should also be allotted 16R extent of land for his homestead out of the land encroached by him in Plot No. 927, provided he would surrender his possession over the remaining portion of the encroached land in that plot. On 6-1-1985, in pursuance of the oral directions given by the Tahasildar, the Revenue Inspector (P.W. 2) along with his peon Kalicharan Bhoi (P.W. 1) went to the land of plot No. 927 at 10 a.m. and at that time 5 to 6 others, all of whom, including PW. 4, where landless persons, came there and in their presence P.W. 2 was measuring and demarcating plots of an extent of 16 R for being allotted to each of the allottees. At that time the accused armed with a Tangia arrived there and challenging P.W. 2 as to why he was giving away his land to the others, gave a blow with the Tangia on the left side of the back of P.W. 2 and fled away from the place, and as a result of that blow P.W. 2 sustained a bleeding injury and fell down unconscious. PW.1 gave a written report about the occurrence to the Officer-in-Charge, Khajuripada Police Station (P.W.7) and the same was treated as the first information report (Ext. 1) in the case and on the basis of that first information report, the police proceeded with the investigation of the case and submitted charge-sheet against the accused under Sections 307 and 333, I.P.C.
3. The plea of the accused, as disclosed from his examination under Section 313, Cr. P.C., is that as he refused to give the Revenue Inspector (P.W. 2), the bribe demanded by him for recording the encroached portion of the land in his name, this case has been falsely foisted against him. No witness was examined in support of his plea.
4. The prosecution has examined in all seven witnesses to prove its case. P.W. 1 is a peon working under the Revenue Inspector and on the relevant morning he claims to have gone to the land of Plot No. 927 along with the Revenue Inspector and he is also the informant in the case. P.W. 2 alleges that he was injured by the accused by means of a Tangia. P.W. 3 is the Medical Officer, who examined P.W. 2 regarding the injuries. P.W. 4 was one of the persons, who claims to have gone to the scene of occurrence for the purpose of demarcation of his homestead land. P.W. 5 is a witness to the seizure of M.O.I. P.W.6 is the Tahasildar, who states to have given oral directions to the Revenue Inspector for demarcating the land of Plot No. 927. P.W.7 is the Investigating Officer in the case.
5. The evidence of the Revenue Inspector (P.W. 2) shows that on 6-1-1985, on the oral directions of the Tahasildar, Phulbani, he went to village Borikumpa for demarcating the homestead land for the purpose of distributing it among the landless persons. He deposed that on that date at about 11.30 a.m. he went with his Peon (P.W. 1) to the homestead land and with the assistance of P.W. 1 started measuring and demarcating the land and at that time six of the landless persons, who were to be allotted the homestead lands, each of an extent of 16 R, were also present with them. It is in the evidence of P.W. 2 that on that afternoon as they were engaged in so measuring and demarcating the land, the accused armed with a tangia arrived there and challenging him (P.W. 2) while he was demarcating the land, gave a blow with the tangia on the left side of his back, as a result of which he sustained an injury and fell down senseless and regained his senses only about two hours thereafter. From the evidence of the other P.Ws. it is seen that the Revenue Inspector P.W. 2 is not speaking the truth when he stated that the accused was not in possession of the land which he measured and demarcated. Likewise P.W. 2 deposed falsely when he denied the defence suggestion that on the land in question there was standing Ragi crop. But then, nothing substantial was elicited in the cross-examination of P.W. 2 to discredit his testimony that as P.W. was measuring and demarcating the land, the accused armed with a tangia suddenly arrived there and questioning him why he was demarcating the land, gave a blow with his tangia on the left side of his back.
6. By the date of occurrence P.W. 1 was serving as a Peon under the Revenue Inspector P.W. 2. So the evidence of P.Ws. 1 and 2 that at the time of occurrence P.W. 1 was assisting P.W. 2 in the measurement and demarcation of the land sounds probable and true. P.W. 4 was one of the persons who hoped to get homestead of an area of 16 R and so his presence at the spot at the time of occurrence cannot be doubted. Hence P.Ws. 1 and 4 are competent witnesses to depose about the occurrence. P.W. 1 frankly admitted that on a portion of the land which was demarcated there were standing crops of Koiri and Ragi. P.W. 4 has also admitted that the land which was being measured and demarcated by P.W. 2 was in possession of the accused. The above admissions of P.Ws. 1 and 4 reveal that they are truthful witnesses. There is nothing in the evidence of P.Ws. 1 and 4 to disbelieve them when they stated that as the Revenue Inspector (P.W. 2) was engaged in measuring and demarcating the land, the accused armed with a tangia suddenly arrived there and gave a blow with the tangia on the left side of the back of the Revenue Inspector. P.W. 1 stated that at the time the accused gave the blow with the tangia he challenged the Revenue Inspector why he was giving his lands to others. So the evidence of P.Ws. 1 and 4 regarding the accused giving a blow with a tangia to P.W. 2 can be safely relied on and thus P.Ws. 1 and 4 fully support the version of P.W. 2 regarding the occurrence of assault on him by the accused.
7. P.W. 2 stated that the occurrence has taken place in the evening of 6-1-1985. P.W. 3 was the Medical Officer of the Headquarters Hospital at Phulbani on 6-1-1985 and on that date on police requisition he examined P.W. 2 and found:
"Incised bleeding injury 2" X 1" X 2" depth over the lower and of left scapula, 2" posterior to the left posterior auxiliary line. The injury is communicated to the chest cavity and fractures of underlined ribs such as 3rd, 4th and 5th ribs of the left side."
The doctor opined that the injury was grievous in nature and was possible by a heavy cutting weapon similar to a tangia. He further opined that the age of the injury was within six hours. Ext. 2 is the injury report given by him. Nothing was elicited in the cross-examination of the doctor which creates any doubt regarding the correctness of the opinion given by him. Hence it is seen that the evidence of the Medical Officer (P. W. 3) also fully corroborates the version of P.W. 1 that he was assaulted on the left side of his back by a tangia by the accused in the afternoon of 6-1-1985.
8. P.W.6 is the Tahsildar. His evidence shows that on 5-1-1985 he had taken up the lease cases Nos. 141 to 145 of 1984 and that each of the applicants in those cases was allotted homestead land of an area of 16 R in plot No. 927 of village Barikumpa. It is in the evidence of P.W.6 that the Encroachment Case No. 157 of 1983 of the accused was pending before him in respect of plot No. 927. The defence suggestion that the entire plot No. 927 was encroached by the accused was denied by him. P.W.6 states that out of a total area of 737 R, the accused had encroached an extent of 208 R in plot No. 927. P.W.6 stated that he instructed the Revenue Inspector to identify and demarcate the land of the other allottees in plot No. 927 excluding the area encroached by the accused. P.W.6 further stated that he gave verbal instructions to P.W. 2 to measure and demarcate the land to be allotted to the landless persons in plot No. 927. Hence, it is seen that the evidence of the Tahsildar (P.W.6) corroborates the version of P.W. 2 that on the date of occurrence he was measuring and demarcating the lands of the allottees under the Verbal instructions from the Tahsildar.
9. From the evidence of the Investigating Officer (P.W.70 it is seen that on 6-1-1985 P.W. 1 lodged the first information report ext. 1 at 2.30 p.m. before him when he was at Phulbani camp. That the first information report was promptly lodged soon after the occurrence, is a circumstance in favour of the prosecution. He arrested the accused at 3.30 p.m. on 6-1-1985 and the medical examination of P.W. 2 was made on that very day at 3.55 p.m. on police requisition and there are also circumstances supporting the truth of the prosecution case.
10. The defence suggestion put to P.W. 1 was that the accused did not give a blow with a tangia to the Revenue Inspector (P.W.2). It is only to P.Ws. 2 and 4, the defence put the suggestion that as P.W. 2 and others tried to catch hold of the accused and tied him with a rope, to save his own life, the accused brandished his Tangia and they denied the suggestions so put to them. The defence did not expressly make a suggestion to P.W. 3 or P.W. 4 specifically suggesting that because of the brandishing of the tangia by the accused it resulted in the injury found on P.W. 2. The accused in his examination under Section 313, Cr. P.C. does not state anything about P.W. 2 or others trying to catch hold of him or about his whirling a tangia in self-defence. Hence it is seen that the defence was not consistent in its defence and did not have the boldness to suggest that the accused had assaulted P.W. 2 in exercises of his right of self-defence. Even otherwise also there is absolutely no basis in support of the theory that the accused had assaulted the deceased in exercise of his right of private defence of his person or property. The evidence of P.W. 2 disclosed that the accused and the Revenue Inspector were earlier known to each other. There is reliable evidence to show that the accused armed with a tangia arrived at the spot and challenging the Revenue Inspector (P.W. 2) as to why he was measuring his land assaulted him with a tangia. The accused ought to have ascertained from the Revenue Inspector and the others present there as to why P.W. 2 was measuring and demarcating the land in question and in case he was dissatisfied with the answers given by them, he should have sought the help of the public authorities and report against the Revenue Inspector to his superiors, but instead of doing that, the reliable evidence on record shows that the accused rushed to the spot and questioning the conduct of the Revenue Inspector (P.W. 2) in measuring and demarcating the land, gave him a blow with the tangia, even without giving him (P.W. 2) any opportunity to explain his conduct. Hence, it is seen that the accused was in no way justified in assaulting P.W. 2, in the manner he did.
11. Now it remains to be seen as to what is the offence committed by the accused. From the evidence of the doctor (P.W. 3) it is seen that due to the assault on P.W. 2 by the accused by means of a Tangia, he sustained a bleeding injury over his left scapula and it resulted in the fractures of the 3rd, 4th and 5th ribs of the left side. The learned counsel for the appellant submitted that because there was no X-ray, the prosecution evidence that the ribs were fractured should not be accepted. To prove a fracture it is not always necessary that the prosecution must produce and prove the X-ray plate taken regarding the fracture. If the doctor, who examined the injured, states on oath that on his examination of the injured, he found a fracture and if his said evidence is found reliable, as in the present case, the same can be safely relied on. Hence, relying on the evidence of P.Ws. 1, 2 and 4 in the light of the evidence of the doctor (P.W. 3), it can be safely held that because of the blow given by the accused with a tangia. P.W. 2 sustained a grievous injury.
12. In an attempt to murder all the elements of murder must exist except the fact of death. An actual intention to commit the particular crime is a necessary element of an attempt to commit crime. To constitute an attempt to murder contemplated by Section 307 there must be an overt act combined with evidence of mens rea. The burden is on the prosecution to prove both. From the evidence on record it is seen that the accused rushed to the spot of occurrence and gave a blow with the tangia on the back of P.W. 2 and fled away from the spot. P.W. 2 gave only one blow with the tangia and the blow was not given on any vital part of the body of P.W. 2. From the material placed on record, it cannot be said that the accused had assaulted P.W. 2 with the intention of committing his murder. From the evidence, where two inferences are possible, the benefit of the inference which leads to a lesser offence like the one under Section 326, I.P.C. must be preferred. See State of Maharashtra v. Gulab Singh, AIR 1978 Bom. 367. Hence, the charge against the accused under Section 307, I.P.C. must fail. However, the prosecution could successfully bring home to the accused the charges under Sections 326 and 333, IPC.
13. The trial court convicted the accused under Section 333, IPC. but no separate sentence was imposed on him thereunder. The trial Court convicted the appellant under Section 307, I.P.C. as well and sentenced him thereunder to undergo imprisonment for life. But presently the accused is found not guilty under Section 307, I.P.C. and therefore his conviction and sentence thereunder is hereby set aside. The accused is a Harijan and was admittedly in possession of a considerable portion of the land of Plot No. 927, which was being measured and demarcated by P.W. 2 at the relevant time. The accused felt aggrieved when the Revenue Inspector was found engaged in measuring and demarcating the land in question and then took law into his own hands. Considering the facts and circumstances of the case, we find that if the period of imprisonment already undergone by the accused is the sentence imposed on him, it would sufficiently meet the ends of justice. Hence we convict the accused-appellant under Section 326, I.P.C. and the sentence imposed on him thereunder is the period of imprisonment already suffered by him.
With the above modification in the order of conviction and sentence passed against the accused, the appeal is dismissed. However, we direct that the accused-appellant be released forthwith.
K.P. Mohapatra, J.
14. I agree.