P.K. Mohanti, J.
1. This appeal has been preferred by the State of Orissa against an order of the learned Sessions Judge of Sambalpur acquitting the 12 respondents of the charges under Sections 302 and 323, both read with Section 34, I. P. C.
2. The deceased Mitrabhanu Patnaik is the eldest son of P. W. 1 Sapneswar Patnaik. The respondents are all agnates. Prosecution case, as revealed at the trial by P. W. 1, the star witness of the prosecution is as follows: About 10 years prior to the date of occurrence the deceased drove out his wife and kept a concubine. P. W. 1 having taken exception to this, he was harassed by the deceased in various ways, so much so that he did not consider it safe to remain in his village Malidhi. He shifted to village Panpali with his wife (P. W. 14), his other son Kulamani (P. W. 2) and his grandson Kartika (P. W. 3) who is the son of the deceased through his married wife. P. W. 1 returned to his village in or about the year 1970 and learnt that the deceased had sold away about 62 decimals of joint family land to the respondent No. 1, Raghuram Sahu. In 1971, a dispute arose regarding the sale of land and it was referred to the Grama Panchayat. The Panchayat decided that the sale in question would remain valid subject to the conditions (1) that the deceased would give equal extent of land from the family properties to his brother Kulamani and the rest of the family properties would be divided equally between the two brothers and (2) that Raghuram would pay a sum of Rs. 600/- to F. W. 1 and obtain from him in writing an acknowledgment of the sale. Thereafter, Raghuram continued to possess the land.
3. In this background, it was alleged that in the early morning of 16-11-1973, P. Ws. 1 to 3 went upon the land and started reaping the paddy crops standing thereon. Sometime after, the deceased and his mother (P. W. 14) went there. Raghuram sent his three field servants including P. W. 15 to reap paddy crops irom the land. But P. W. 1 and the deceased did not allow them to reap the crops and asked them to go away. Accordingly, P. W. 15 and two other field servants of Raghuram left the field. Soon thereafter Raghuram went to the land and protested against the action of P. W. 1 and his sons in reaping his paddy crops. P. W. 1 and the deceased told Raghuram that they would not reap paddy crops if the sum of Rs. 600/- was paid to P, W. 1 as per the decision of the Panchayat. Then Raghuram returned to the village and at about 9 A. M. again went to the land along with the other accused persons. On their arrival, P. W. 1 entreated Raghuram with folded hands not to commit assault, but Raghuram dealt a blow on the deceased with a wooden lathi as a result of which he fell down. After he fell down, the other respondents also assaulted him. Raghuram and some of the other respondents also dealt lathi blows on P. Ws. 2, 3 and 14. The deceased succumbed to the injuries at the spot.
4. At the trial, the respondents denied the charges and pleaded innocence. The plea of Raghuram was that when he protested against the action of the prosecution party in reaping his paddy crops, the deceased first dealt a knife blow causing injuries on his hand. Then the deceased and P. Ws. 2, 3 and 14 rushed at him to assault. He managed to snatch away a Suli from P. W. 3, Kartika and brandished it in self defence. The other respondents denied their presence at the place of occurrence and alleged false implication.
5. The trial Court on a consideration of the evidence led by the prosecution came to the findings: (1) that the death of the deceased was homicidal; (2) that none of the respondents other than Raghuram, Janmejay, Gopal and Subal came to the place of occurrence being armed with lathis; (3) that the prosecution failed to establish that Raghuram caused the fatal injury on the right temporal region of the head of the deceased but it was established by consistent evidence that Raghuram had dealt a lathi blow on the left side of the head of the deceased; (4) that the prosecution failed to establish that any other respondent had assaulted the deceased; (5) that Raghuram dealt lathi blows on P. Ws. 1, 2 and 14 and none of the other respondents assaulted them; (6) that Raghuram was in settled possession of the land in question from the date of sale in the year 1969 continuously and he had raised the paddy crop thereon in the year of occurrence; (7) that the sum of Rs. 600/-had been paid by Raghuram to P. W. 1 prior to the occurrence; (8) that the evidence of P. Ws. 1, 2, 3 and 14 to the effect that they and the deceased Mitrabhanu surrendered to the respondents and entreated them not to commit assault was not believable; (9) that Raghuram, Gopal, Subal and Janmejay a had right of private defence of property to drive out the prosecution party from the land in question and they had not exceeded that right; (10) that the version of Raghuram that P. W.s 1 to 3, 14 and the deceased rushed at Mm holding crow-bar, Sulis and sickle and the deceased dealt a knife blow on his finger in the left hand is probable; (11) that the act of Raghuram in inflicting injuries on the members of the prosecution party was protected by the right of private defence of property and person and (12) that the respondents had no common intention to kill Mitrabhanu and to assault P. Ws 1 to 3 and 14.
6. It is not disputed, and is proved by the materials on record that there was an incident of assault in which the deceased and P. Ws. 1 to 3 and 14 sustained injuries and the deceased succumbed to the injuries on the date, time and place as alleged by the prosecution. The doctor (P. W. 18) who conducted autopsy over the dead body of the deceased on 18-11-1973 at 11 A. M. found the following external injuries:
(1) An abrasion 2' x 1/2' x 1/2' above the left eye.
(2) A lacerated wound 2' x 1' x 1' on the scalp 2' above the right ear in the temporal region.
(3) An injury 1/2 x 1/2 on the right palm between the thumb and index finger.
(4) An abrasion 1/2' x 1/2' on the lateral side of the right leg.
Internal examination revealed a fracture of the skull bone corresponding to injury No. (2). In the doctor's opinion the injuries were ante mortem in nature and the death occurred due to sudden shock as a result of injury to the brain. He also opined that injury Nos. (1), (3) and (4) were simple in nature and might have been caused by fall on a rough surface and that more than one blow might have been necessary to cause injury No. (2). The injury No, (2) was sufficient in the ordinary course of nature to cause death.
7. The doctor P. W. 7 examined P. Ws. 1, 2, 3 and 14 and found simple injuries on their persons.
8. Respondent No. 1, Raghuram Sahu, was examined by P, W. 7 on 19-11-1973 and the following injuries were found on his person;
(1) An abrasion on the outer aspect of the interphallangial joint of the middle finger of the left hand.
(2) An abrasion on the outer aspect of the interphallangial joint of the left ring finger.
In the doctor's opinion, both the injuries were simple in nature and might have been caused by a sharp cutting weapon like a knief or niddle. He also opined that both the injuries could be self-inflicted.
9. The facts which are either admitted or undisputed are as follows:
The deceased had sold to respondent No. 1, sixty-two decimals of land locally known as Chakribahal by a registered sale deed dated 24-3-1.969 (Ext. 7) and the respondent No. 1 was in possession of the same from the date of sale. Respondent No. 1 had raised paddy crops on the lands in the year of occurrence. In 1971 there arose a dispute between P. W. l and the respondent No. 1 regarding the sale of land and it was referred to the Gram Panchayat. On 29-10-1971 the Panchayat decided that the sale would remain valid and the respondent No. 1 would continue to possess the lands subject to the condition that he would pay a sum of Rs. 600/- to P. W. 1 and obtain from him a written acknowledgment of the sale on cartridge-paper with a revenue stamp affixed to it vide Ext. 3. On the date of occurrence, P. Ws. 1 to 3 went to the land to reap paddy crop and they carried three sickles, one crow-bar and three Sulis. Sometime thereafter the deceased and P. W. 14 went to the land.
10. The defence case was that the sum of Rs. 600/- had already been paid by Raghuram to P. W. 1 prior to the date of occurrence. The prosecution case on the other hand was that the amount had not been paid despite demand and on the date of occurrence P. Ws. 1 to 3 went to the land for the purpose of enforcing payment of the amount. P. W. 1 stated that if the respondent No. 1 had paid the amount at the spot, he would have gone back without reaping the paddy crops. Relying on Ext. 4 the trial Court held that the amount of Rs. 600/- had been paid prior to the date of occurrence. On a review of the evidence on the record, we are unable to agree with the finding of the trial Court for the following reasons. In the Panchayat decision dated 29-10-71 (Ext. 3) it is clearly mentioned that respondent No. 1 on payment of Rs. 600/-would obtain a written acknowledgment of the sale from P. W. 1 on a cartridge-paper with a revenue stamp affixed to it. The respondent No. 1, the deceased and P. Ws. 1 and 2 have signed Ext. 3 in token of their acceptance of the Panchayat decision. Ext. 4 was executed by P. W. 1 on the same date. It is on a plain paper and no revenue stamp has been affixed to it. In Ext. 4, P. W, I while acknowledging the sale of land in favour of respondent No. 1 has specifically mentioned that he would execute another deed of acknowledgment on a cartridge-paper with revenue stamp before the harvest of paddy crops. Nothing is mentioned therein about payment of Rs. 600/-. If actually the sum of Rs. 600 had been paid on 29-10-1971, respondent No. 1 would have insisted on acknowledgment of receipt of the same. If the amount was paid on that date, it is not explained why the fact of payment was not mentioned in Ext. 3 or Ext. 4. The recitals in Ext. 4 to the effect that P. W. 1 would execute a deed of acknowledgment subsequently on a cartridge-paper with revenue stamp indicates that the amount was not paid on that date. P. W. 1 has categorically stated during his evidence in court that the amount of Rs. 6O0/- was not paid to him despite demand and that on the date of occurrence he went to the land for the purpose of enforcing payment of the amount. As against this evidence, the respondent No. 1 made a bald statement during his examination under Section 313, Cr.P.Code that he had paid Rs. 600/- to P. W. 1 without mentioning the date of payment. On a careful consideration of the facts and circumstances of the case we are inclined to hold, in disagreement with the learned trial Judge, that the amount of Rs. 600/- had not been paid and that on the date of occurrence P. Ws. 1 to 3 went to the land with the purpose of enforcing payment of the amount.
11. P. W. 1 could seek recovery of the amount in a Court of law instead of taking recourse to force. He clearly admitted in Court that he had gone to reap paddy and was prepared to sacrifice his life in the process though the crops in question had been raised by Raghuram. The evidence on the record shows that when the prosecution party did not allow the field servants of Raghuram to reap paddy, the latter went with Rasanand and protested. But despite his protest, the prosecution party went on reaping paddy. Then Raghuram went back to the village. Shortly thereafter he went to the land along with others and committed the assault. Thus it is clear that prosecution party were the aggressors. The act of cutting the crops clearly amounted to an offence of theft and the accused party had a right to resist and to inflict such injuries as were necessary to compel the prosecution party to desist, It is in the evidence of P. W. 1 that by the time of occurrence, paddy crops standing on half of the lands had been reaped by the prosecution party. The police station is at a distance of 15 K. Ms. from the spot. Raghuram had no time to go to the police station to make a complaint because in the meanwhile Ms crops would have been removed before the police would arrive at the scene. The accused-party were, therefore, entitled to exercise the right of private defence of property.
12. At the trial, however, a new case was sought to be made out by the prosecution. It was contended that when the accused party arrived at the spot being armed with weapons, P. Ws. 1 to 3 stopped paddy cutting and threw away their pickles and Sulis and the deceased surrendered to Raghuram and entreated him with folded hands not to commit assault. It was accordingly urged that the right of private defence of property which the accused had against the offence of theft committed by the prosecution party, had come to an end and the accused had no justification in committing the assault. If the accused party had started the attack in the circumstances as alleged by the prosecution, there may have been some scope for saying that they acted unreasonably in taking recourse to force end had, therefore, lost the right of private defence of property. This version of the prosecution was not credited by the learned Sessions Judge although it was vigorously pressed at the trial. It is significant to note that although the F.I.R. was lodged by an eye-witness on the date of occurrence, there was absolutely no mention of the above circumstance. If actually the accused party had started the assault in the circumstances as alleged by the prosecution, such an important fact would not have been omitted from the F.I.R. The story as narrated in the F.I.R. is that while the prosecution party were reaping the paddy, the accused persons came in a body and started the assault. There was absolutely no allegation that the prosecution party on seeing the accused persons threw away their sickles and Sulis and stopped paddy cutting and the deceased surrendered to Raghuram and entreated him not to commit any assault. In the facts and circumstances proved in the case, we are inclined to hold that the accused party started the assault while the prosecution party were committing theft of the crops and that the story introduced at the trial is a myth.
13. P. Ws, 1 to 3 and 14 sustained simple injuries on their persons and in view of our earlier findings the accused party are entitled to protection of Section 104, I. P. C. On the facts found, they had a right of private defence of property which extended to the voluntary causing to the wrong doer of any harm other than death.
14. The next question for consideration is whether in the facts and circumstances of the case the right of private defence of property extended to the voluntary causing of death of the deceased.
Section 103 of the Indian Penal Code provides as follows:
The right of private defence of property extends, under the restrictions mentioned in Section 99, to the voluntary causing of death or of any other harm to the wrong doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely:
X X X X X X XFourthly, theft, mischief or house trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised.
The clause 'Fourthly' deals particularly with cases where the act which causes the exercise of the right of private defence amounts to theft, mischief or house trespass under such circumstances which reasonably may cause apprehension that death or grievous hurt would be the consequence, if such right of private defence would not be exercised. In the instant case, the act of the prosecution party in reaping the crops amounted to an offence of theft. But the crucial question for consideration is whether theft was committed in such circumstances which reasonably caused apprehension that death or grievous hurt would be the consequence, if the right of private defence would not be exercised. It was urged by the learned Counsel for the State that the accused party had exceeded the right of private defence and they were not at all justified in committing the murder of the deceased. The learned Counsel for the respondents, on the other hand, contended that since the prosecution party were armed with three sickles, three Sulis and a crow-bar it is reasonable to infer that they committed theft under such circumstances which reasonably caused apprehension that death or grievous hurt would be the consequence if the right of private defence was not exercised. On a careful scrutiny of the evidence, we are inclined to hold that so far as causing of death to the deceased is concerned, this is not protected by the right of private defence of property. P.Ws. 1 to 3 carried the sickles for cutting paddy and the Sulis for carrying the bundles of paddy sheaves. No doubt, a crow-bar had also been carried to the spot. But there is absolutely no evidence to show that the prosecution party made any attempt to use their weapons upon the members of the accused party or even made any threat or movement which might have caused apprehension in the minds of the accused party that the weapons were going to be used upon them. It cannot, therefore, be said that theft was committed in such circumstances as might have caused reasonable apprehension that death or grievous hurt would be the consequence if the right of private defence was not exercised. In our opinion, the present case does not come within the purview of Section 103 I. P. C.
15. The act of causing death of the deceased was also sought to be protected by the right of private defence of person. The contention was that when Raghuram protested against the reaping of his paddy, the deceased and P.Ws. 2, 3 and 14 rushed at him to assault and the deceased first dealt a knife blow causing injuries on his hand. So Raghuram snatched away a Suli from P.W. 3 and brandished it. Thus it is argued that Raghuram dealt the fatal blow in exercise of his right of self defence. The learned Sessions Judge accepted such a plea mainly on the ground of presence of injuries on the person of Raghuram. The finding is based purely on speculation. The doctor found only two abrasions on the middle finger and the ring finger of the left hand of Raghuram and opined that the injuries might have been caused by a sharp cutting weapon like a knife or niddle. He also opined that the injuries could be self inflicted. There is absolutely no evidence that the deceased was armed with a knife. If Raghuram had been attacked with an open knife, one would expect serious injuries on his person. It is just possible that he had sustained such minor and insignificant injuries while the prosecution party were trying to save themselves with their sickles. Considering the nature and location of the injuries it is difficult to hold that they were caused by direct attack with a knife. The reasoning adopted by the trial Judge and the ground on which the acquittal of Raghuram is based are palpably wrong and unsustainable. We, therefore, hold in disagreement with the learned trial Judge, that the plea of self defence taken by Raghuram is not acceptable.
16. The next question that remains to be considered is whether Raghuram and the other accused persons had formed a common intention to cause the death of the deceased. Section 34 I. P. C. requires not only common intention but also participation in the crime. Mere presence of a person at the time of commission of offence without proof of any act or omission done to facilitate the offence will not be sufficient to sustain a conviction. It is 'only those who actually participate in the crime that would be held responsible for its commission. The witnesses have made omnibus statements that all the twelve accused persons came in a body and some of them were armed with weapons. There is however no credible evidence on the record that the other accused persons actually participated in causing the fatal injury on the deceased. In the facts and circumstances of the case we are inclined to hold that immediately after his arrival at the spot Raghuram dealt the fatal blow on the head of the deceased. It is difficult to hold that the accused persons went to the spot with the intention of causing the death of the deceased. The dominant intention was to protect the crops from being forcibly reaped away by the prosecution party. The accused persons carried weapons, possibly because they apprehended that the prosecution party might attack them. As mentioned earlier, Raghuram was in possession of the property and he had raised the crops in question. He was, therefore, entitled to defend his property by force and to collect such number of persons and such arms as were necessary for that purpose when there was actual invasion of his rights and there was no time to take recourse to the public authorities. In this view of the matter we hold that Raghuram alone was responsible for the death of the deceased and none of the other accused persons can be held guilty under Section 302 read with Section 34 I. P. C.
17. The evidence of the eye-witnesses clearly shows that Raghuram opened the attack by dealing a lathi blow on the head of the deceased as a result of which he fell down. The doctor found a lacerated wound on the right temporal region of the deceased and opined that this injury proved fatal. According to P.W. 3, Raghuram dealt the lathi blow on the right temporal region of the deceased. P.Ws. 1, 2 and 14, however, stated that Raghuram dealt the lathi blow on the left temporal region of the deceased. The trial court disbelieved the statements of witnesses on account of such discrepancy and came to hold that the fatal injury was not caused by Raghuram. He, however, believed the evidence of the witnesses to the extent that a lathi blow had been dealt by Raghuram on the head of the deceased. In our opinion, the witnesses described only the movement of Raghuram with his weapon and they cannot obviously give evidence as to where actually the weapon hit the body, for that would depend upon not only the manner in which Raghuram wielded his weapon but also on the movements of the deceased. A blow aimed on the left side of the head may, if the victim moves aside, fall on the right side of the head. The evidence of the witnesses clearly shows that the deceased fell down on receiving the lathi blow dealt by Raghuram. P.W. 1 specifically stated that the weapon used by Raghuram in committing assault on the deceased was a pole having four edges. The doctor (P.W. 18) found that the ridges of the fatal injury on the head of the deceased were irregular. We have, therefore, no doubt in our mind that Raghuram was responsible for the fatal injury.
P.Ws. 1, 2 and 3 stated that after the deceased fell down on receiving the blow dealt by Raghuram, lathi blows were also dealt on him by accused Gopal. In the F.I.R., P.W. 1 did not specifically Implicate Gopal as an assailant of the deceased. P.Ws. 2 and 3 did not also disclose during their examination by the police that Gopal had dealt lathi blows on the deceased. P.W. 14 simply stated that after dealing the lathi blow on the head of the deceased, Raghuram directed Gopal to kill the deceased. She did not, however, state to have seen Gopal assaulting the deceased. It has been found by the trial court and we would accept the finding that none else except Raghuram had committed assault the deceased. Raghuram dealt a violent blow with a heavy weapon on a vital part of the body of the deceased as a result of which, he died instantaneously. On a consideration of these aspects, there cannot be any doubt that Raghuram dealt the blow with the intention of causing such bodily injury as was likely to cause death. Hence the act committed by him amounts to an offence which comes within the purview of Section 304, Part I of the Indian Penal Code.
18. In view of our above findings, we set aside the order of acquittal so far as it relates to respondent No. 1 Raghuram Sahu, convict him under Section 304, Part I, I. P. C. and taking into consideration the background of the case and all the facts and circumstances, sentence him to R. I. for five years.
19. The appeal is allowed to the extent indicated above. The order acquitting the other respondents is confirmed, Their bail bonds be cancelled.
S. Acharya, J.
20. I agree.