1. 28 persons were put on trial. 20 persons have been acquitted. Appellants 1 to 8 are respectively accused Nos. 2, 5, 20, 19, 21, 23, 22 and 28. All the appellants have been convicted under Section 147 and Section 379, I. P. C. and sentenced to undergo rigorous imprisonment for one year each under Section 147, I. P. C. Appellants 4, 5 and 7 have further been convicted under Section 323, I. P. C. No separate sentence has been passed under Sections 323 and 379, I. P. C.
2. The dispute relates to 9 acres of land situate in village Narendrapur, The lands belong to deity Mahimamani of which the Raja of Kanika is the trustee. The prosecution case is that deceased Balaram Das was a bhag tenant of these lands for over 20 years before 1959. He fell into arrears of rent and surrendered the lands. In the year 1959, complainant Gani Parida (P. W. 1) was inducted as a bhag tenant and he cultivated for three years 1959, 1960 and 1961. There is an accute party faction in the area. The party of the complainant is headed by Sri Chakradhar Behera while the party of Balaram Das is headed by the present Home Minister, Sri Nilamoni Routrai. On 19-11-1961, Bidyadhar Rout (P W. 5) an employee of the Raja of Kanika, effected appraisement of the crops. P. W. 1 cut paddy from 2 acres of land from 19-11-61 to 21-11-1961. From 24-11-61 to 27-11-61 he was at Bhadrak in connection with certain criminal cases. On return from Bhadrak, he got information that Balaram Das with his men bad been to Narendrapur to cut away the paddy crop from the disputed lands. He collected certain gentlemen in the morning of 28-11-61 and started for Narendrapur. On the spot he found deceased Naka, Balaram and his men were cutting paddy. On his protest, Naka, Balaram and appellant-5 abused and assaulted him. There was some golmal between the parties. Injuries were caused both on him and on Agani Barik ( P. W. 4). Thereafter they left the field.
3. In view of the acquittal of 20 persons it is not necessary to give in detail the statements of all the accused persons. The defence version is that not only Balaram was the bhag tenant of the Mahimamani lands for over 20 years before 1959, but he was in cultivating possession even in 1959, 1960 and 1961. On 28-11-61 Balaram with his men had come to the field, while they were cutting paddy, Gani Parida with about 150 persons came there, assaulted them, pursued them to the house of Balaram Das where-from they were taken to Haripur Adia where Naka and Rama Barik were severely assaulted.
4. The learned Sessions Judge, after thorough examination of the materials, recorded the following finding :
(i) In the years 1959, 1960 and 1961 Gani Parida (P. W. 1) was in cultivating possession and had grown crops in 1961. As Balaram Das was not in possession and had not grown crops, his cutting the paddy on 28-11-1961 with his men constituted offences under Sections 147 and 379, I. P. C.
(ii) Balaram and appellants 4, 5 and 7 caused injuries on P. W. 1 and P. W. 4 and thereby committed an offence under Section 323, I. P. C.
(iii) There was satisfactory evidence on record that appellants 1 to 8 were on the spot with Balaram Das cutting the paddy and constituted an unlawful assembly.
There is no satisfactory evidence on record regarding the presence of the 20 accused persons who have been acquitted.
5. This criminal appeal arises out of Sessions Trial No. 21 of 1962. Government Appeal No. 35 of 1963 arises out of Sessions Trial No. 19 of 1962. Both arise out of the same incident. The learned Sessions Judge tried S. T. No. 19 of 1962 first and delivered his judgment on 20-4-1963. In Sessions trial No. 21 of 1962 the learned Sessions Judge delivered his judgment on 15-5-1963. Thus both the sessions cases were tried by the same Sessions Judge, but the judgments were not delivered on the same day. In the High Court Criminal Appeal No. 94 of 1963 was heard first and Government Appeal No. 35 of 1963 was heard later. Mr. B.M. Patnaik advanced a very startling argument that the judgment of Criminal Appeal No. 94 of 1963 should be delivered before the hearing of Govt. Appeal No. 35 of 1963 began. His contention was that the Judges are not infallible and are subject to human frailties and are likely to be influenced inadvertently and imperceptibly by the evidence of one case to be used in the other to the prejudice of the accused persons. This charge is wholly untenable.
In Akhlaq v. State of U. P. 1962 Mys L J 134, their Lordships of the Supreme Court negatived this view. They observed that wherever the parties are prosecuted for attack on each other in the same occurrence and there are counter cases and versions, both trials should be held separately but, one after the other, by the same Judge who should not pronounce judgments till after both cases are heard and finished, and the same would apply to appeal also. The procedure followed by the learned Sessions Judge was undoubtedly not in conformity with the aforesaid principle. But there is no reason why the Criminal appeal should have been disposed of first before the hearing of the Government appeal began. In law, the presumption is just the other way. Judges are presumed to be upright men who would approach each case on the basis of evidence in that case alone. There is no substance in Mr. Patnaik's contention. We accordingly heard both the appeals one after the other before delivery of judgment in any one of them.
6. Coming to the merits, :Mr. Patnaik himself presented the analysis that he cannot assail the conviction if it is found that P. W. 1 was in possession of the disputed lands in 1959, 1960 and 1961. He does not assail the finding with regard to the presence of appellants 1 to 8 on the spot with Balaram and their cutting paddy from the Mahimamani lands. The only question which has been seriously canvassed by him is that Balaram continued in possession till the date of occurrence.
7. It is the common case of both the parties that there is serious party faction and the witnesses for the prosecution are hostile to Balaram's party. P. Ws. 1, 2, 4, 6, 7, 8, 9, 11, 12, 14 and 15 are the witnesses to possession. P.W. 1 is the complainant. P. Ws. 2 and 8 are his labourers. P. Ws. 11 and 12 are relations to P. W. 1. The strongest circumstance in favour of Balaram's possession is that the had a non-evictable right under the Orissa Tenants' Relief Act. Even for non-payment of rent Balaram was not evict-able except through the intervention of the Court. The prosecution, however, established its case of possession through the evidence of P. W. 5, who is the employee of the Raja of Kanika. He proves appraisement of Kuta registers (Exs. 6, 7 and 8) for the year 1959, 1960 and 1961. He looks after these lands. He stated that he had had done appraisement on 19-11-1961 of the lands in possession of P. W. 1 and others in village Narendrapur. Some reliance was placed on the over-writing at places in Ex. 8 in the mouth portion of the date '19-11-61' including the date against the memo of Gani Parida. On a careful examination it appears to us that number '2' in the month portion has been changed to '1'.
These over writings, by themselves, do not lead to the necessary conclusion that the document was forged. No question was put to P. W. 5 so as to how the mistake occurred leading to the correction. Reliance was placed on the circumstance that in November, the month of December could not be even wrongly mentioned. This was a matter which should have been clarified by cross-examination from P. W, 5. The most remarkable feature proving the genuineness of this document is that the date given under the signature of P. W. 5 has not been over-written and so also the date given in the body of the register against the name of Bauli Das. If these two dates have been accurately put, the other dates must have been corrected to rectify the mistake. No cross-examination has been directed to establish that the other two registers (Exs. 6 and 7) were forged. We are satisfied that these Kuta registers are genuine and that they fully corroborate the evidence of P. W. 5 and the prosecution version that Gani Parida was in possession.
P. W. 5's version is acceptable on account of another important circumstance. If on the eviction of Balaram Das, who had the non-evictable right of bhag-tenant, the disputed lands would have been taken under the khas possession by the Raja of Kanika; P. W 5's version might have been disbelieved with regard to surrender as it was a self-serving statement. But after Balaram's eviction, the fact that Gani Parida was put into possession creates the same non-evictable right in favour of Gani Parida against the deity Mahimamani. In supporting the cause of Gani, the deity does not get any additional right in respect of the lands. In the absence of any proof that P. W. 5, or the Raja of Kanika, supported any of the two parties, P. W. 5's statement deserves full credence. Furthermore on the admitted case of both parties, there was no crop on the lands by 19-12-1961.
Exts. 1 and 1/1 are the rent receipts showing payment of rent by Gani Parida for 1366-67 and 1367-68 Sals correspondent to 1959 and 1960. The counter-foils of these rent receipts are Exs. 9 and 9/1. Reliance is placed by the defence on the statement of P. W. 5 that suit was filed by the deity for recovery of arrears of rent from Balaram. This suit was filed subsequent to Balaram's eviction. The suit filed during the period when Balaram was not in possession for recovery of arrears of rent does not establish the possession of Balaram from 1959 onwards.
Reliance is placed by Mr. Patnaik on Ex. F, the Personal Diary of Sri P.C. Patnaik, S.I. (F.W. 1). The diary shows an entry that apprehending troubles between Balaram and Gani over paddy cutting of the disputed lands, he sent for both to Ghanteswar Hat. Gani Parida stated that he was not going to cut paddy or harass Balaram. The document does not contain any admission of Gani Parida that he was not in possession of the disputed lands. It is not unlikely that in order to avoid police surveillance P. W. 1 made such a statement. Ext. H/1, the Station Diary Entry makes it clear that Gani Parida asserted his possession of the disputed land before D. W. 1 on 19-11-1961 at Ghanteswar Hat. D. W. noted that both Balaram and Ghani claimed the lands and the present crops. Thus Gani asserted his own right to possession and to the crops. All the circumstances discussed above clearly support the version of P. W. 1 that he was in possession of the disputed lands in the years 1959, 1960 and 1961. Though positive evidence with regard to the factum of possession could be available to the accused persons, it is remarkable that not a single witness has been examined to prove the possession of Balaram for these three years. We are satisfied that the learned Sessions Judge reached the correct conclusion in finding possession in favour of Gani Parida.
8. The injuries on Gani and Agani were of simple nature. The fact that such injuries were caused on these two persons was not assailed before us. The conviction under Section 323 is justified.
9. On the finding that Gani was in possession and grew crops in 1961, Balaram's reaping away paddy with the appellants constituted offences under Sections 147 and 379, I.P.C. The conviction is unassailable and the sentences imposed are not severe in the circumstances that the acts of Balaram and his men were highhanded.
Mr. Patnaik contended that at least the labourers should be acquitted. We are unable to accept such an argument. In the peculiar facts and circumstances of this case, where there is a serious party faction and all the appellants belong to one party, such distinction cannot be made.
10. In the result, the appeal fails and is dismissed.
R.K. Das, J.
11. I agree.