1. Padia Patra has been convicted under Section 302, I. P C and sentenced to imprisonment for life. Mahichandra Patra and Muruli Patra have been convicted Under Section 326 I.P.C and each has been sentenced to R I. for two years. All the three have been convicted Under Section 148 I. P. C. but no separate sentence has been awarded under this section. The rest of the accused persons have been convicted Under Section 325/149 I. P C. (obviously a mistake for 326/149 I. P. C.) and each has been sentenced to R. I. for one year. They were further convicted Under Section 147 1 P. C. but no separate sentence has been passed under this section. All of them have been charged Under Section 302/149 I P C Though in the body of the judgment the learned Sessions Judge was of opinion that accused 2 to 8 were not guilty under this charge, he did not pass any final order acquitting them of this charge.
2. One Java Patra had two wives. Through the first wife he had a son Badu the father of Chandra Mohan (P.W. 1) Through the second wife he had five sons. Hiranva, Baida, Sidheswar Pravakai and Mangulu deceased) Muruli (accused 2) Paresawar (accused-3) and Mahichandra (accused 4) are the suns of Sidheswar Chakra (accused-6) and Kubera (accused-7) are the sons of Pravakar Padia (accused 1) is the son of accused-8.
Hiranya acquired 9.02 acres of Nayabadi land at Bandhatala Chak in village Surupatala within the jurisdiction of Champua P S in the district of Keonjhar Prosecution case is that as he was serving under the T.I.S. Co. he allowed his brothers to cultivate the said land. He retired from service in 1962 and resided in the village Naturally he asked his brothers and nephews to give up possession of the land. 8 kiarais of the land, which are the' disputed land according to the prosecution, were cultivated by Purandar and Dasarathi in 1968 Before 1963 the said kiarais were in possession of Chakra and Kubera The crop of the year 1963 grown on the said land by Purandar and Dasarathi was harvested by them The mother of Kubera had filed a complaint against Purandar and Dasarathi before the Gram Punchayat No action was taken thereof On 14-2-64 some of the accused persons cultivated 4 kiarais out of the disputed land. It resulted in a quarrel between the parties
In the morning of 15-2-64 (the dale of occurrence). Mahichandra. Pareswar and Kubera and Chakra started for the field with ploughs. Purandai and Dasarathi went to the field being armed with bows and arrows apprehending that the accused might plough the disputed land. On the spot they found Pareswar, Chakra, Kubera, Mahichandra, Maladhar and Nabina (a labourer of theirs) ploughing the field of Murali which was his self-acquired land and contiguous to the disputed land. Both of them sat armed on the ridge of 'Dhipa Kiari' (mark 8 in the spot map) waiting to resist entry of the accused into the disputed land. Padia and Murali were sitting on the ridge of Murali's land with bows and arrows. Thereafter Jema (mother of Padia) and Jamuna (P. W. 7) and the mother of the deceased) came there and quarrelled with each other Jema and Jamuna are sisters. Manguli arrived on the spot with a conch shell. Jema and Jamuna left the place after the quarrel was over. Padia and Chakra went to the village and brought some weapons. Padia brought a spear and a lathi and Chakra a bow and arrows. Kishore Chandra (P.W. 2), the Sarpanch arrived on the spot. Jamuna again came back after requesting P. W. 1 (the padhan of the village) to come to the spot to prevent troubles which she apprehended
The accused finished ploughing the land of Murali Thereafter Pareswar and Chakra went to Dhipa Kiari with two ploughs and started ploughing them. P. W. 4 obstructed the ploughing by standing in their front. Pareswar shouted and Mangulu blew the conch-shell. Other accused persons came running towards P. W. 4 with bows and arrows shouting 'kill them, kill them'1 Both the parties aimed arrows at each other An arrow shot by Mahichandra, pierced into the right leg of Dasarathi. P. W. 4 pulled it out from his leg and walked two to three steps with difficulty in a bending posture. Murali struck a blow on his head Chalra threw a big clod of earth on his back When he fell down. Pareswar gave a blow on his head with an axe. He became senseless Purandar ran away out of fear and sought protection from P. W. 8. The accused, however, dragged him to some distance and assaulted him He fell down. When he was trying to get up. Padia pierced a spear into his chest Purandar walked a distance of about 50 cubits with some difficulty and fell down dead Accused left the spot.
3. Before the Committing Court the accused denied the occurrence. In the Sessions Court. They took the plea that though the Nayabadi lands were acquired in the name of Hiranya. those belonged to the entire family and each branch was in separate possession of different portions in a family partition long ago. The accused admitted that P. W. 4 and the deceased cultivated and harvested the crop of the year 1963 from the 8 kiaris of the disputed land which were being previously possessed by Chakra and Kubera With regard to the story as to how many out of the 8 kiaris were cultivated by the accused on 14-2-64, divergent versions were presented by different accused Some said 7 kiaris had been cultivated and some others stated that 5 kiaris were ploughed Mahichandra however, admitted that only 4 kiaris were ploughed on that day They admitted the occurrence on 15-2-64 but gave a different version of the same as follows:
Mahichandra, Pareswar, Kubera Chakra and Haladhar were ploughing the land of Murali in the morning of 16-2-1964. At that time they found P. W. 4 and the deceased coming with bows and arrows, dagger, knife and axes. Then Padia and Murali went to the village and brought spear, lathi, bows and arrows. Chakra did not go to bring weapons. After ploughing the land Murali Pareswar and Chakra started for ploughing the Nayabadi field which was in possession of Mongulu. They admitted that they passed through the Dhipa Kiari with ploughs only to reach Manguli's land and denied the fact that they ploughed the Dhipa Kiari. While passing through the Dhipa Kiari with their ploughs thev were obstructed by the deceased and P.W. 4 who shot arrows towards them. The accused came back to the land of Murali. Mahichandra and Haladhar shot arrows at the deceased and P.W. 4. One of the arrows hit the right leg of P.W 4. P.W 4 attempted to strike Murali with an axe. Tc protect himself Murali gave a lathi blow on the head of Dasarathi Chakra did not throw any c!od of earth on the back of P. W. 4. Pareswar did not assault P. W. 4 on his head with an axe.
Padia stated that the deceased attempted to attack him with an axe. He prevented the first blow When again the deceased raised the axe he used his spear which struck the chest of the deceased. Thus Padia admitted to have killed the deceased but took to the plea of right of private defence Murali and Mahichandra also admitted to have caused grievous hurl to P. W. 4 in exercise of their right of private defence. Other accused persons denied having dragged and assaulted the deceased.
4. It was not disputed before the learned Sessions Judge that the deceased died on the spot and that P. W. 4 received grievous hurt as a result of the attack of different accused persons
The doctor (P.W. 3) held the post-mortem examination of the deceased and examined P. W. 4 In his opinion, the deceased died due to shock and haemorrhage resulting from the injuries on the chest and head The injuries were ante-mortem P. W. 4 had a punctured wound behind the right ankle above the heel and a lacerated would on the back part of the left parietal region. Both the injuries were grievous. It is not disputed before us that the deceased died as a result of the injuries caused on him by the accused party and that P.W 4 received grievous injuries during the occurrence
5. Most of the facts are admitted. The points of difference between the two versions which lie in a narrow compass are--
(i) Which party started attack first? and (ii) Whether the fight between the two parties started over the ploughing of Dhipa Kiari, or while some of the accused were passing through it to plough the land of Mangulu9
There is satisfactory evidence that after finishing ploughing of Manguli's land, some of the accused started ploughing the Dhipa Kiari. PWs. 2 and 4 speak about It. Even the Sarpanch (P. W. 8) who appears to have some leaning towards the accused and was declared hostile, supports the prosecution version. He deposes
'When the accused persons began ploughing the fields which were in possession of Chakra and Kubera, I saw Dasarathi obstructing by standing in front of the bullocks.....
There were only two furrow marks on the field of Kubera when the assault began.'
Mr. Kanungo contended that not only the dead body of Purandar but almost all the weapons were found on the land of Murali, and, as such, the fight cannot be said to have started on Dhipa Kiari. There is no force in this contention An armed mob of 8 persons on the side of the accused attacked P. W. 4 and the deceased just at one end of Dhipa Kiari when some of the accused started ploughing. In fhe welter of confusion that followed the deceased and P. W. 4 ran away to save their lives. The recovery of most of the weapons and the dead body from the land of Murali is not inconsistent with the prosecution case. Some arrows were also recovered from Dhipa Kiari itself at places marked 20 to 24 on the spot map On the aforesaid evidence, conclusion is irresistible that the fight started when the ploughing of Dhipa Kiari was obstructed. The defence plea that some of the accused were passing through the Dhipa Kiari only to plough the land of Mangulu is not acceptable.
Prosecution also has fully established through the evidence of P. Ws. 2 and 4 that when P. W. 4 obstructed ploughing of Dhipa Kiari, some of the accused gave a shout. Mangulu blew a conch-shell and thereafter the accused attacked P. W. 1 and the deceased indiscriminately The deceased and P. W. 4 also used their arrows; but on account of assault by the accused, their shots were aimless and ineffective This explains the absence of injury on the accused. The defence version of the story, as narrated in paragraph 3 supra, is not acceptable on the evidence of P. Ws. 2 and 4 and the broad circumstances and probabilities. The accused outnumbered the prosecution partv and mercilessly attacked P. W. 4 and the deceased
Thus on the two controversial questions offact, the prosecution case has been satisfactorily established and the defence case is notacceptable.
6. On the admitted facts of the case, and on the aforesaid two findings resolving the points of difference, all the conclusions of fact may be summarised for a true appreciation of the argument advanced by Mr Kanungo that the accused committed no offence and were protected by right of private defence of property and person.
(i) Dhipa Kiari was in the possession of the deceased and P. W. 4 in 1963 They had grown and reaped the crop.
(ii) The land was lying fallow and had not been ploughed until the date of occurrence.
(iii) On 14-2-64. some of the accused cultivated three kiaris out of disputed 8 kiaris of land (see the evidence of I. 0. P. W. 10 and the finding of the Learned Sessions Judge.)
(iv) In the morning of 15-2-64, some of the accused first went with ploughs towards the disputed land Apprehending that the accused would take forcible possession of the disputed land. Purandar and Dasarathi went to the field fully armed and determined to resist forcible possession by the accused.
(v) On arrival at the spot, they found some of the accused cultivating the land of Murali. They did nol use their arms so long as the ploughing of Murali's land continued. They sat on the ridge of Dhipa Kiari with the object of resisting forcible entry into it by the accused.
(vi) The moment some of the accused entered into the Dhipa Kiari and started ploughing P. W. 1 obstructed being fully armed.
(vii) Accused were eight in number. Some of them shouted. Mangulu blew a conch-shell as a signal to his co-accused for attack They indiscriminately assaulted P. W. 4 and the deceased as narrated in para 2 supra.
(viii) P. W. 4 and the deceased used their arrows in course of the occurrence. The arrows, however, did not strike any of the accused. As the accused started the attack first, the arrows shot by the deceased and P.W. 4 were aimless and ineffective.
(ix) In course of the occurrence, Padia pierced the deceased with a spear and some other accused assaulted him, as already narrated. As a result the deceased died on the spot and P. W. 4 received grievous injuries.
7. On the aforesaid findings the question tor consideration is whether the accused had any right of private defence This right has been dealt with in Ss 96 to 106, I. P. C. in Chapter IV under the caption 'General Exceptions.' Under Section 105. Evidence Act, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Indian Penal Code is upon the accused and the Court shall presume the absence jof such circumstances. In AIR 1964 Orissa 262 State of Orissa v. Chakradhar Behera. a Bench of this Court observed
'It is however well settled that the burden on the accused is not of the same nature as one on the prosecution to establish the existence of the offence beyond reasonable doubt. The nature of the burden on the accused to bring its case within the general exceptions is analogous to that resting on the plaintiff in civil case The juristic principle in Civil matter is that preponderance of probability is the basis of success. It is also well accepted that the accused need nol prove the general exception by adducing positive evidence. The same can be established through prosecution evidence also. If from the entire evidence on record it is probable that the defence version may be true, they are entitled to a verdict in their favour even the truth of the version might not have been proved beyond reasonable doubt.' We endorse the aforesaid view.
8. Section 96, I. P. C. enacts that nothing is an offence which is done in the exercise of the rights of private defence. Section 97, I. P. C. provides that every person has a right of private defence of person and property subject to the restrictions contained in Section 99, I. P. C., which enumerates acts against which there is no right of private defence. The third clause to Section 99 says that there is no right of private defence in case in which there is time to have recourse to the protection of the public authorities.
In this case, the accused were not in possession of Dhipa Kiari, and, therefore, they had no right of private defence of property. That apart, the land itself was lying fallow and there was no apprehension of any danger to the property, if the accused had taken recourse to the protection of public authorities without taking the law into their hands. In 1963-29 Cut LT 245 Kelu v. State, this Court observed:
''If the land was merely lying fallow, an argument might be advanced with some force that no immediate injury could be caused to the property and protection of public authorities should have been resorted to. The crucial test in a case of this nature is whether the harm committed by the offender is immediate or not. The concept will vary according to the facts and circumstances of each case and no hard and fast rule can be laid down to determine the character of the harm. On this test, the accused should have resorted to the protection of the public authorities and cannot claim any right of private defence either of person or of property '
The same conclusion emerges even if the accused were in prior possession of Dhipa Kiari. Before they started ploughing the Dhipa Kiari. they saw that the deceased and P. W. 4 were sitting on its ridge fully armed and determined to resist forcible possession by the accused The land being fallow without any crop, there was no immediate apprehension of danger to the property or to the person. There was also no apprehension of danger to person of the accused as was manifest from the conduct of P. W. 4 and the deceased. They did not use their arms until their rights in the property were interfered with
9. Mr Kanungo very seriously contended that the deceased and P. W. 4 had no right of private defence of property, and, as such, the accused committed no offence. The argument is fallacious, and, if f may say so with respect is born of confusion of thought., It must be conceded that P. W. 4 and the deceased had no right of private defence of property or person. In fact before they started from the village, they apprehended that the accused would forcibly plough the land in their possession Accordingly they went armed to resist forcible entry On the very reasoning that the land was lying fallow and there was no crop on it. there was no immediate apprehension of danger to that property They should have resorted to the protection of the public authorities. Under the third clause to Section 99. they had no right of private defence. If in course of the occurrence P.W. 4 and Purandar if alive had committed any offence, they were liable to be convicted as they had no right of private defence.
Non-existence of right of private defence in P.W. 4 and the deceased does not confer a right of private defence on the accused. Accused are responsible for their own acts. The acts done by them amount to various offences. Those acts would cease to be offences in the eye of law Under Section 96 I. P. C. only if the accused are protected by right of private defence.
When there is a free fight between two parties, which are armed and determined to fight, the members of each party are liable for the offences committed by them unless any of the parties is protected by the right of private defence. In 1963-29 Cut LT 383 : (1964 (1) Cri LJ 117), Picharu Bhati v. State of Orissa, this Court observed.
'Even if the complainant's party had constituted an unlawful assembly, the accused would have no valid defence in saying that they would also constitute an unlawful assembly by way of retaliation. When there is a free fight between two parties, each constitutes an unlawful assembly.'
In (1908) ILR 35 Cal 368 Kabiruddin v. Emperor their Lordships observed:
'When both parties are armed and prepared for battle and it is not shown that they were acting within the legal limits of right of private defence, it does not matter who was the first to attack.'
It lays down that a right of private defence cannot be pleaded by persons, who expecting to be attacked go out of their way to court an attack It represents the correct view. The Calcutta decision has been distinguished on facts in many subsequent decisions but has never been dissented from.
To sum up the accused had no right of private defence of property or person. If P.W. 4 and Purandar (if alive) had committed any offence and had been prosecuted, they would have also no right of private defence. Each party is responsible for its own acts.
10. On the conclusion that the accused had no right of private defence, their conviction is well founded. We cannot, however, part with the case without making an observation that the view of the learned Sessions Judge that accused 2 to 8 were not liable to be convicted Under Section 302/149, I. P. C., is erroneous. This court had repeatedly observed that the common object of the unlawful assembly can be collected from the nature of assembly, arms used by them and the behaviour of the assembly at or before the scene of occurrence. The common object is an inference of fact to be deduced from the facts and circumstances of each case. The commission of overt acts is certainly an evidence of fact that the accused was the member of an unlawful assembly, but the converse is not true. In other words, it cannot be contended that if there is no proof of commission of certain overt act by the accused, he is not a member of the unlawful assembly (see 1963-29 C. L. T. 245 and 29 Cut LT 383 : (1964 (1) Cri LJ 117).
In this case, the accused went determined from before to forcibly plough the disputed land. While ploughing the land of Murali, they clearly noticed that P. W. 4 and the deceased had come armed and were prepared to resist their forcible possession by use of arms, if necessary. Before making entry into the Dhipa Kiari, two of the accused went to village and brought deadly weapons. It is only thereafter that they started ploughing Dhipa Kiari. When resistance was offered by P.W. 4, some of the accused gave shouts, another blew the conch-shell giving clarion call for a pitched battle and thereafter they indiscriminately assaulted P.W. 4 and the deceased. In the aforesaid circumstances, the common object of the unlawful assembly was clearly to commit murder, if necessary. We are of opinion that the view of the learned Sessions Judge is legally untenable. As the State has filed no appeal, question of convicting the accused under section 302/149 I. P. C. does not arise.
11. In the result the appeal fails and is dismissed.
12. I agree.