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Bhagirathi Burhia and ors. Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Appeal No. 18 of 1964
Judge
Reported inAIR1965Ori99; 1965CriLJ744
ActsEvidence Act, 1872 - Sections 27, 145 and 157; Indian Penal Code (IPC), 1860 - Sections 97, 99, 103 and 104
AppellantBhagirathi Burhia and ors.
RespondentThe State
Appellant AdvocateAsok Das, Adv.
Respondent AdvocateD.C. Mohapatra, Adv.
DispositionAppeal dismissed
Excerpt:
.....order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 3. on an analysis of the entire evidence, the learned sessions judge in a well discussed and careful judgment held that the death of the two deceased was homicidal. daw strenuously contends that these witnesses are unreliable and the prosecution version of the story should therefore be rejected. das does not dispute that their version is consistent, but his attack,..........by his previous statements in the confession and in the committing court. the statement of accused bhagirathi before the committing court was tendered and read as evidence under section 287, cr. p. c. and is admissible in evidence.similarly, accused basu had at the previous stage pleaded alibi though in the sessions court he admitted his presence. the injuries on basu were two abrasions--one on the left shoulder and the other on the left arm. in the committing court he took the plea that he was not present at the spot. the doctor does not say that those abrasions could be caused by lathi blows. there is no evidence that even those abrasions were caused during the occurrence.9. from the aforesaid discussion, conclusion is irresistible that the prosecution version of the story is.....
Judgment:
ORDER

Misra, J.

1. The appellants have been convicted under Section 302/34, I. P. C. and each of them has been sentenced to imprisonment for life. Bhagirathi (appellant 1) and deceased Niranfan were brothers. Dadhi (appellant 2) and Basu (appellant 3) are the sons of Bhagirathi, Tilu alias Trilochap Barhia and Chhelia alias Rupadhar Barhia (both the deceased) were the sons of Niranjan. Accused Sureswar (acquitted) is the cousin of Bhagirathi. The prosecution case is that Niranjan, due to his old age, could not cultivate the disputed Bijadill land. He entrusted it to the father of Bhagirathi for cultivation and enjoyment till his sons (deceased), who were then minors, would become major. The deceased came of age about 10 to 12 years ago and demanded the disputed land back. Bhagirathi did not return the land. This led to dispute between the parties. A punchayeti even did not improve the matter. The occurrence took place in the morning of 4-6-1963. A few days before the appellants had ploughed the eastern portion of the disputed land and sown paddy

On the date of occurrence they had first gone to the disputed land and were ploughing and sowing paddy on the remaining portion of it. While the appellants were in the act of ploughing and sowing, the deceased with their ploughs entered upon the eastern portion of the disputed land on which the appellants had previously sown paddy. This led to a quarrel between Bhagirathi and Chhelia. In course of the quarrel, Bhagirathi gave a blow with an axe on the head of Chhelia who fell down on the ground. Then all the four accused dealt axe blows on Chhelia who was lying on the ground. Trilochan, who was standing near, implored the accused to spare his life; but all the accused indiscriminately assaulted him with their axes. Both Chhelia and Trilochan died instantaneously on the spot. The accused ran away from the field.

2. The plea of Bhagirathi is that he was in possession of the dispiited land long since and had sown paddy on a portion of it before the date of occurrence. The deceased forcibly entered upon that portion, ploughed the same and sowed paddy despite protest. In course of the quarrel, deceased Chhelia rushed at him armed with an 'axe and caught hold of his neck. He removed the axe from the hand of Chhelia and gave a stroke to him in self defence. At this time, deceased Trilochan sat on the chest of Basu and pressed his neck. He, therefore, gave a blow to Trilochan with the axe of Chhelia to save Basil's life. Dadhi denied his presence on the spot. Basu pleaded that Trilochan assaulted him with a lathi as a result of which he fell down senseless and did not know what happened thereafter.

3. On an analysis of the entire evidence, the learned Sessions judge in a well discussed and careful judgment held that the death of the two deceased was homicidal. This finding was not rightly assailed in view of the admitted stand of Bhagirathi that he killed both the deceased with an axe. It is needless to give details of the injuries on the deceased. It would be sufficient to say that there were 4 serious lacerated wounds on the head of Chhelia and 8 incised wounds on Trilochan on the head and surrounding region. The doctor (P. W. 9) was of opinion that the injuries on each were sufficient in ordinary course of nature to cause death

4. The learned Sessions Judge found that Bhagirathi was in possession of the disputed land for a long period and that prior to the date of occurrence he had ploughed and sown paddy on a portion of it and that on the date of occurrence he with his sons had been to the field earlier and was ploughing and sowing paddy on the remaining portion of it when the two deceased forcibly ploughed and sowed paddy on the portion on which Bhagirathi had previously sown paddy and thus the twp deceased committed offence of Criminal trespass and mischief. These findings ware not rightly assailed on behalf of the prosecution as the mother (P. W. 1) of the deceased herself admits the position. Bhagirathi and his sons had, therefore, a right of private defence of property.

5. The learnscl Sessions Judge accepted the entire prosecution story with regard to assault, which has already been narrated, on the evidence of P. Ws 1, 2 and 10, who are the eye-witnesses to the occurrence. Mr. Daw strenuously contends that these witnesses are unreliable and the prosecution version of the story should therefore be rejected. All the three eye-witnesses give a consistent version as to the nature of assault. The substance of their evidence is that after the deceased forcibly cultivated a portion of the disputed land, Bhagirathi protested which led to a quarrel. In course of the quarrel Bhagirathi gave an axe blow on the head of Chhelia who fell down on the ground. All the accused persons thereafter assaulted him with their axes and he died instantaneously on the spot Trilochan appealed to the accused persons not to assault Chhelia but he was mercilessly assaulted by all the accused with their axes resulting in instantaneous death. All the three eye witnesses stood the test of severe cross-examination and adhered to a consistent version in a straightforward manner. The defence story of attack by Bhagirathi in self defence was suggested to them which was refused. Mr. Das does not dispute that their version is consistent, but his attack, however, is that these eyewitnesses are unreliable.

6. The F. I. R. in this case was started on the information of the mother (P. W. 1). She made a statement to the Gountia of the village (P. W. 11) immediately after the occurrence who recorded her statement and sent it to the Thana at 2.30 p.m. which was treated as the F. I. R. (Ex. 6). The story given in Court was mentioned in the F. I. R. All the three appellants have been implicated. In me F. I. R., however, the name of accused Sureswar was not given. In his place the name of Bhanja Barhia (P. W. 10) was mentioned as one of the assailants. Mr. Das makes much of this inclusion of P. W. 10 and exclusion of Sureswar in the F. I. R. as an assailant.

7. The learned Sessions Judge held that as in the very presence of the mother her two sons were kilted and as P. W. 10, the field servant of the appellants, was ploughing the field in their midst, P. W. 1 was under mental confusion and mentioned P. W. 10 as an assailant by omitting Sureswar. This conclusion is correct. It is not the defence story that P. W. 10 was an assailant. Admittedly he was with the appellants cultivating the land. So there was room for confusion. 4s Sureswar's name did not occur in the F. I. R. and as P. W. 10 deposed that he did not see him, (he was given benefit of doubt and was acquitted That does not, however, make the story said by P. VV. 1 unbelievable. It is also contended that P. W. 10 specifically did not refer to the presence of P. W. 1 in the field. P. W. 10 deposed--

I did not see any body else near the spot of occurrence.

No specific question was put to him that P. W. 1 was not present on the spot. The answer given in general manner by him does not establish that P. W. 1 was not present on the spot. We are satisfied that P. W. 1 is a witness of truth. In her presence her two sons were killed and it is extremely unlikely that she would falsely implicate to appellants as murderers.

P. W. 10 appears to be thoroughly reliable witness. The statement in the F. I. R. that he was an assailant is not substantive evidence and can be used only for the purpose of corroboration under Section 157 or contradiction under Section 143, Evidence Act, of P. W. 1 alone, the maker thereof. It cannot contradict P. W. 10. Doubtless the fact that a complaint was made against P. W. 10 implicating him as an assailant is admissible for the limited purpose to show that such a complaint, whether true or unfounded, was made. Such a limited use, however, does not affect the veracity of P. W. 10 who cannot be contradicted with reference to the F. I. R. As we have already said, the appellants themselves never take the plea that P. W. 10 was an assailant. In an elaborate cross-examination made there was no suggestion that he was an assailant and that only to escape punishment, under promise from the Police, he was deposing falsely against the defence. We have gone through his evidence and his candid deposition impresses us on the truth of the statement.

The comment advanced against P. W. 2 is that she has disputes with Sureswar and Bhagirathi. She denies it. But P. W. 5 states that P. W. 2 has land dispute with Sureswar and also with Bhagirathi as the latter did not support her case against Sureswar. The learned Sessions Judge was of opinion that on account of the dispute P. W. 2 with Sureswar, there might be some chance of her falsely implicating him, but there is distant possibility of her implicating the appellants in the murder, merely because they did not purport to support her case. We are inclined to accept those reasonings. We accept the evidence of P. W. 2 at reliable.

Even if the evidence of P. W. 2 is discarded, the evidence of P. Ws. 1 and 10 is unassailable. On the evidence of the eye-witnesses the learned Judge correctly accepted the prosecution story. Mr. Das concedes that if the evidence of the eyewitnesses is accepted, then there is no right of private defence of person.

The evidence of the eye-witnesses also geti corroboration from the discovery of the two axes M. Os. II and III given by accused Dadhi to I. O. (P. W. 15) in presence of the village Gountia (P. W. 11). He showed the axes lying concealed in the paddy field of accused Sureswar. The statement that he had concealed the axes is admissible in evidence under Section 27 of the Evidence Act. These two axes and another lying at the field were blood stained though on chemical examination the blood had disintegrated and its origin could not be traced. P. W. 10 and the village blacksmith (P. W. 13) identified these three axes as belonging to Bhagirathi. The evidence of P. W. 13 that he repaired these axes on certain occasions and the evidence of P. W. 10 that these axes belong to his masters are acceptable. The doctor is of opinion that the Injuries could he caused by those axes. The discovery of 2 axes and the recovery of one at the field corroborate the evidence of the eye-witnesses.

Some reliance was placed on the evidence of P. W. 1 to the effect that the accused left the field with their axes and that M. O. I., which was lying at the field, must, therefore, belong to the deceased which was used in course of the quarrel. There is no substance in this argument. Though the deceased brought two axes, as deposed to by P. W. 2, there is no evidence that those axes were used in the fight That apart, P. Ws. 10 and 13 identified M. O. I as belonging to Bhagirathi. The statement of P. W. 3. that the accused left the field with their axes should not bo construed to mean that they went away with all the axes and did not leave behind one of their axes while going away.

8. The prosecution version gets assurance of its truth from the inconsistent and prevaricated versions given by the two accused at different stages. In Sessions Court, Bhagirathi took the plea that Chhelia rushed at him armed with an axe and caught hold of his neck and in self-defence he seized the axe from Chhelia and gave a blow on him. He also stated that he attacked Trilochan when the latter was sitting on the chest of Basu and pressing his neck. In his confessional statement (Ex. 1) and the statement before the committing Court he on the oilier hand did not advance the story of attack in self-defence, but gave a simple and plain story that as the deceased trespassed upon his land and did not heed to his protest, he killed both of them. The story of private defence of person was for the first time advanced in the Sessions Court, He had at the previous stages stated that his Rons were not present on the field. Thus the story advanced by him in the Sessions Court stands condemned by his previous statements in the confession and in the committing Court. The statement of accused Bhagirathi before the Committing Court was tendered and read as evidence under Section 287, Cr. P. C. and is admissible in evidence.

Similarly, accused Basu had at the previous stage pleaded alibi though in the Sessions Court he admitted his presence. The injuries on Basu were two abrasions--one on the left shoulder and the other on the left arm. In the Committing Court he took the plea that he was not present at the spot. The doctor does not say that those abrasions could be caused by lathi blows. There is no evidence that even those abrasions were caused during the occurrence.

9. From the aforesaid discussion, conclusion is irresistible that the prosecution version of the story is true and the accused had no right of private defence of person. It has already been said that the accused had right of private defence of property. As the offences committed by the deceased were only criminal trespass and mischief, the right of private defence of property did not extend to the voluntary causing of death (see Sections 103 and 104, I. P. C.). That apart, the exercise of the right of private defence of property is itself subject to restrictions mentioned in Section 99, I. P. C. which prescribes that the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. On the evidence on record the deceased did not merely heed to the protest of Bhagirathi and his sons and it was open to the accused to drive the deceased nway from the field They were entitled under Section 104, I. P. C. to cause any harm to the wrong-doer other than death. Not only Bhagirathi gave the murderous strokes on both the deceased with the axe, but all the accused went on indiscriminately assaulting the deceased, even though they fell clown by the first stroke on each of them, till they were dead. Such assaults were not necessary to be inflicted for the purpose of defence. The accused, therefore, had not only not right of private defence of person but were not justified in killing the deceased in exercise of the right of private defence of property. The learned Sessions Judge rightly convicted them under Section 302/84, I. P. C.

10. The appeal fails and is dismissed.

Barman, J.

11. I agree


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