Judgment:
ORDER
D.M. Patnaik, J.
1. This revision is against the order of conviction of the petitioners under Section 307/34, IPC and sentence of R.I. for 3 years and 2 years respectively.
2. Prosecution case is, on 22-6-1990 around 7 a.m. P.W. 1 was carrying on some cultivating operation in his land with the help of labourers (P.Ws. 3 and 4). At that time petitioner No. 1 being armed with a bamboo lathi (Thenga) and petitioner No. 2 armed with a tangia came over there and challenged the P.Ws. P.W. 1 objected to this, whereafter petitioner No. 1 assaulted P.W. 1 with lathi blows on his right and left legs and after the injured fell down, petitioner No. 2 inflicted tangia blows on the right knee and head of P.W. 1, causing incised injuries endangering life. Petitioners in their defence took the plea that it was P.W. 1 and his men being armed with sharp cutting weapons came over to their land and damaged the paddy plants with a Mahi and when so objected by the petitioners, they assaulted with sharp cutting weapons causing out injuries on their person.
3. Both the courts below believed the evidence of P.Ws. and accepted the prosecution case as true. They did riot accept the alternate plea of the defence that the petitioners had a right of private defence against both person and property.
4. Heard Mr. P. J. Dhal, learned counsel for the petitioners and Mr. C. K. Mohanty, learned Standing Counsel.
The main thrust of the argument of Mr. Dhal was that although there were sufficient materials on record to entertain a doubt in the prosecution case and such materials were sufficient to accept the defence case of right of private defence to be reasonably true, the courts below grossly erred in giving a totally wrong approach to the case of the defence. Mr. Dhal took me to the various documents exhibited from the side of the defence, FIR in the counter case and evidence of the Witnesses.
On the other hand, Mr. Mohanty, learned State Counsel, supported the judgments of the courts below.
5. Having gone through the judgment of the courts below and the documents exhibited in the case, I have no hesitation to accept the contention of Mr. Dhal that the courts below in arriving at a conclusion of guilt of the petitioners, did not consider the materials that should have very much weighed in their mind to accept the defence version of reasonbly true. The reasons are as follows.
6. P.W. 1 admitted that petitioner No. 1 Mangulu is his elder brother being sea (sic) of his step-mother and therefore, obviously petitioner No. 2 was his nephew. He further admitted that Masaba Duasra his adoptive father and Kadhaba Duasra father of petitioner Mangulu were two brothers. In para 6 of his cross-examination he admitted that Masaba Kuamra, his adoptive father had sold the petitioner Mangulu land measuring as area of Ac.J. 03 daes for a consideration of Rs. 2000/- on 25-5-1984. But it is the case of P.W. 1 that this was cancelled by Masaba by another deed 26-5-1984 Ext. 2. The certified copy of the order sheet is Mutation case provide from the side of the defence shows that Mangulu had purchased this land or which Sabik Khata is 23 Mausa Raijhori. It is further evident that there was a dispute with regard to mutation of this land between the two and the mutation case, there was a compromise on the basis of which mutation was allowed by the Tahasildar by his order dated 28-3-1990 in favour of Mangulu both as the basis of title as well as possession.
7. Thus it is abundantly clear that rightly or wrongly mutation was allowed under Ext. in favour of Mangulu who was in possession of the purchased land as on the date of order i.e. 28-3-1990 and the occurrence of this case took place nearly three months thereafter during cultivation season. A presumption under law was therefore available in favour of the defence that Mangulu on being mutated in respect of the land continued to possess the same until such presumption could have been successfully rebutted by any other satisfactory evidence that the said mutation order was challeged in any higher forum. This having not been done it is reasonable to hold that Mangulu was in possession of the area measuring Ac.3-05 dees, as on the date of occurrence.
The point for consideration is, whether the petitioners being accused, were successful in bringing out a case to reasonably believe that the occurrence could have taken place on the above land in their possession.
8. While the evidence of P.W. 1 disclosed that the occurrence took place on the land locally known as 'Dalaka chaka', the defence version was that it took place on the purchased land of Mangulu which was in 'Bateni chaka'. While it was obligatory on the part of the prosecution to prove with greater amount of certainty and positiveness that the occurrence took place on 'Dalaka chaka', the defence was under no obligation to prove the same with that much of certainty but they could prove their case even by preponderance of probability.
9. The FIR was lodged by P.W. 4, one of the labourers and eye-witness to the occurrence. In the FIR. P.W. 4 did not mention that the occurrence took place at Dalaka chaka but rather it was cleverly omitted by only mentioning that the occurrence took place on the land belonging to P.W. 1. That the occurrence took place at dalaka chaka was for the first time mentioned by P.W. 1 and P.W.4 in their evidence. So much so, P.W. I also did not mention this in the 161 statement. It was the duty of the trial court to find out the true nature of the dispute and the reason for enmity between the two parties by way of eliciting as to on which land the occurrence took place. This omission in the FIR by P.W.4 and in the 161 statement of P.W. 1 is a material omission with regard to the exact land on which occurrence took place. Such material omission should not have been lost sight of by the trial court and this has resulted in suppressing an important aspect of the prosecution case.
In the FIR P.W.4 clearly stated that on seeing P.W. 1 working on the land, petitioner No. 1 challenged as to why he (P.W.I) was cultivating his (accused) land, and this was confronted to him. P.W. 4 in the evidence intentionally omitted this aspect. So far as P.W. 1 is concerned, although he stated this in his 161 statement before the police, he denied this fact but was confronted with his previous statement. These two contradictions amply prove that the P.Ws. were not prepared to accept the fact that on reaching the place the petitioners asserted as to why the P.Ws. were carrying on cultivating operation on their (petitioners) land.
Thus this is another important feature which leads one to believe that the prosecution did try to suppress the fact that the occurrence took place on the land claimed to be in possession of the petitioners.
10. There is yet another feature which should not be lost sight of as rightly argued by Mr. Dhal. The defence case was that the P.Ws destroyed the paddy plants by ploughing Mahi on the same. That P.W. 1 carried a Mahi and damaged paddy plants was denied by him when so suggested vide cross-examination in para 8. P.W. 9, the I.O. admitted to have seized a Mahi from the spot under Ext. 5. He also admitted in para 6 of his cross-examination to have seen that some paddy plants were damaged due to application of Mahi.
This is a fact which was suppressed by the prosecution and this rather fits in with the defence plea as staled in the 313 statement that the P.Ws. in fact used a Mahi on the land of the petitioners.
11. P.W. 8 is the Medical Officer of Daspalla hospital who on 22-6-1990 besides examining the injured-P.W. I also examined both the petitioners. In para 2 of his cross-examination he admitted this. He further admitted that on examination of Mangulu Kuanra he found the latter to have sustained four incised injuries on the shoulder, left forte arm, left side of the neck and another on the right side of the neck. Though they were simple injuries, but were caused by sharp cutting weapons. Of these injuries, two incised injuries, one on the neck was 4' in length and breadth and depth was 1/4' and the other was 2' in length with same breadth and depth. These injuries in any case cannot be said to be minor injuries or merely superficial injuries so as not to put the prosecution with the obligation of explaining them and so also the injuries on petitioner Parimal who had sustained injuries on the right fore-arm 2' above the right wrist.
The P.Ws. did not explain as to how the petitioners sustained these injuries particularly when a counter case was registered against the P.Ws. vide Ext. C - FIR in Daspalla P.S. Case No. 44/90 relating to the occurrence of that day and these P.Ws. were also charge sheeted vide Ext. D in that case.
12. It is well settled that credibility of a witness should not be accepted merely because it is corroborated by the evidence of other witnesses, but such credibility should be tested in the touch-stone of the broad probabilities of the case. If doubt arises with regard to any material fact in a criminal case, the accused is always entitled to the benefit of such doubt.
13. For the above glaring infirmities in the prosecution case, the conclusion of the courts below in recording a finding of guilt against the petitioners is wholly erroneous and they are liable to be set aside.
14. In the result, the revision is allowed. The judgements of the courts below are set aside. The ban-bonds executed by the petitioners shall stand discharged.