R.L. Narasimham, C.J.
1. The two petitioners who are father and son respectively were tried in the Court of the Assistant Sessions Judge, Balasore for an offence under Section 304, I. P. C. The learned Judge, however convicted the father (Sajjan Das) under Section 325, I. P. C. and the son (petitioner Krushna Das) under Section 323, I. P. C. and sentenced them to different terms of imprisonment and fine. Their appeal was dismissed by the learned Sessions Judge.
2. The two petitioners are residents of village Chardia P. S., Baunsada in Balasore district. They were on terms if enmity with P.W, 1 Raghu Majhi and his nephew Nanda Majhi (deceased). The quarrel started 4 years ago when they were both competing for the purchase of a piece of bari land belonging to one Bouri Das. The land was eventually purchased by P.W. 1 Raghu Majhi. On 12-9-1951 there was a quarrel between P.W.' l on the one hand and the two petitioners on the other because the petitioners suspected that Raghu had thrown some weeds uprooted from his land into the adjoining lands of the petitioners. P.W. 1 conveyed a Panchayat' to settle the dispute but the petitioners did not attend the punchayat. Troubles arose again between the parties on 14-9-1961 at about 10 a.m. The two petitioners met Raghu Majhi (P.W. 1) and the deceased Nanda when they were returning from the field after carrying out weeding operation. Petitioner Khushna confronted them and asked them whether they had thrown the weeds on his paddy fields as they did on 12-9-1961. P.W. 1 thereupon retorted saying that the two petitioners should see their fields first before charging him and Nanda with having committed such an act.
As to be expected this led to exchange of words in the course of which petitioner Krushna gave a blow on the forehead of Raghu causing him a lacerated injury. Petitioner Sajani was also standing nearby with a stick and it was alleged that the deceased Nanda, apprehending that Sajani might also join in the attack gave him a blow on his head. Thereupon Sajani gave a terrific blow with his lathi on Nanda who immediately fell down with his skull fractured. It was further alleged that even after Nanda fell down he was beaten. He became unconscious and died on the next day, while he was being taken to Chandbali hospital by boat.
3. The post-mortem examination on Nanda Majhi was held by Dr. Ganguli (P.W. 6) the Assistant Surgeon of Bhadrak on 17-9-1961 -- 4 days after the occurrence. He found the body in a highly decomposed condition, but on dissection he noticed a linear fracture across the skull extending from the coronal suture to the left parietal, temporal and sphenoid bones. Blood clots were found over the brain substance. The injury on the head was responsible for death and appeared to have been caused by a blunt weapon, but he found no other external or internal injury.
4. The other injured persons were examined by Dr. Sanatan Roy, (P.W. 7) Assistant Surgeon of Chandbali. He found lacerated wound and an abrasion on the fore-head of P.W. 1 Raghu Majhi, simple in nature caused by a blunt weapon like a lathi. He found also a lacerated wound and echhymosis on Nabaghana (P.W. 2). These injuries were also simple in nature and might have been caused by a blunt weapon. Petitioner Sajani Das was found to have a lacerated wound on the head and two swellings--all simple in nature, caused by a blunt weapon. Petitioner Krushna Das also had some minor swellings on his left leg, left thigh, and left arm which were all simple in nature caused by 3 blunt weapon.
5. Thus, the injuries found on both sides are themselves sufficient to show that they were caused by exchange of blows in the course of a quarrel. The main question for consideration is whether the petitioners are entitled to the right of private defence and if so whether any of them exceeded the same. The answer to this question will depend on which party was the aggressor. Out of the eyewitnesses, the trial Court has not attached any importance to the evidence of P.W. 4. He also adversely commented on the evidence of P.W. 5. The case thus mainly depends on the evidence of P.W. 1 (Raghu Majhi). Nabaghana (P.W. 2) Panchu Naik (P.W. 3). The learned trial Court observed that Panchu was a disinterested witness.
6. The defence of the petitioners was that they went to their field on 20-9-1961 and found petitioner Raghu throwing weeds into their field and that he instigated his nephew Nanda to assault them. Thereupon the deceased Nanda gave a blow with his lathi on the head of Sajani and P. W. 1 also assaulted Sajani. Then petitioner Krushna Das intervened on behalf of his father and he, too, was assaulted by P.Ws. 1 and 2. They then shouted for help and Sajani's other sons, Rama, Dama and Abhimanyu ran towards the field, then there was a mutual fight between Raghu Majhi and his nephew on the one hand and the other three sons of Sajani on the other. A counter case was started by the petitioner also.
7. The petitioners' story that they committed no offence and the other three sons of the petitioner Sajani namely, Rama, Dama and Abhimanyu assaulted the complainant's party can hardly be believed. It is highly improbable that when they were being given blows by P.Ws. 1 and 2 the deceased Nanda Majhi, they would remain peaceful and leave it to the other sons of Sajani to defend them. There is also no evidence to support this counter version which was rightly rejected.
8. But it was contended by Mr. S. K. Ray on behalfof the petitioners that it was Nanda who first gave theblows on the head of Sajani and if after that Sajani hithim on the head his action would be justified by exerciseof the right of private defence of person. It is true thatthe eye-witnesses have stated that though petitioner Krushnafirst assaulted Raghu, Sajani did not do anything except tostand close by with a stick and that it was the deceasedNanda Majhi who gave him a Mow on his head whereuponhe retaliated by striking him back on the head. But in thecircumstances of the case the action of Nanda Majhi wouldnot give petitioner Sajani the right of private defence ofperson. There were practically two parties at that time,namely, Sajani and his son namely petitioner Krushna, onthe one hand, and Raghu and his nephew Nanda on the other.The previous enmity between the parties, coupled with theincident which took place two days prior to the presentoccurrence, should all be taken into consideration in thisconnection. Hence when the altercation between the partiesbegan with Raghu being charged by Krushna with havingagain thrown weeds on the petitioner's lands, and petitionerKrushna gave a blow on his head, the petitioner's party became aggressors.
It is true that the prosecution witnesses do not say that petitioner Sajani joined with his son in attempting to give a blow either to Raghu or Nanda in the first instance but there is clear evidence to show that he was standing there with a stick and none has stated that he either asked his son Krushna not to assault or do something from which it can be reasonably inferred that he had no intention of assaulting Raghu's party. On the other hand P.W. 1 clearly stated that when Krushna gave a blow on the head of Raghu, Sajani who had also a stick with him went towards Raghu, This portion of his evidence has not been fully supported by the other two eye-witnesses (P.Ws. 2 and 3). But their evidence shows clearly that when Krushna attacked Raghu, Sajani was standing closely with a stick. Considering the circumstances then prevailing and the back-ground of previous enmity between the parties, the deceased Nanda could reasonably apprehend that his uncle Raghu would be beaten by petitioner Sajani also and hence his giving a Mow on Sajani's head would be justified. But Sajani had no justification whatsoever to give him such a terrific blow on the head thereby practically smashing his skull.
Once the petitioners' party are held to be the aggressors it is immaterial as to who gave the first blow. The complainant's party would be justified in taking such measures as may be necessary to prevent further attack on that party and merely because one of the complainant's party retaliated after the first blow had been given by the accused's party, the latter cannot claim any right of private defence. I would therefore, in agreement with the lower appellate Court hold that in the circumstances of this case the plea of right of private defence would not be available. But at the same time in view of the fact that the deceased Nanda gave a blow on the head of the petitioner Sajani there was some provocation for the latter to retaliate and a heavy sentence is not called for. Similarly so far as petitioner Krushna is concerned as he was charged under Section 323, I. P. C. only, with having caused simple hurt to P.Ws. 1 and 2 substantive sentence of imprisonment seems (un ?) necessary.
9. The order of the lower court is, therefore, modified as follows. The conviction of petitioner Sajani Das under Section 325, I. P. C. is maintained, but the sentence of imprisonment passed on him for that offence is reduced to one year's rigorous imprisonment only. The sentence of tine passed on him for that offence is set aside. The conviction of petitioner Krushna Das under Section 323, I.P.C. is also maintained but the substantive sentence of imprisonment passed on him for that offence is set aside and he is sentenced to pay a fine of Rs. 100/- (Rupees one hundreds only) for that offence; in default of payment of fine he should undergo R. I. for one month.
Subject to the reduction in the sentence, as indicated above, the revision petition is dismissed.