B.K. Behera, J.
1. The appellant Benudhar and his illatum son-in-law Hrushikesh (the other appellant) stood charged under Section 302 read with Section 34 of the Indian Penal Code (for short, the 'Code') with having committed the murder of Sunamani Naik (to be referred to as 'the deceased') in furtherance of their common intention on August 31, 1979, at village Sorisia in the district of Cuttack, owing to a land dispute. The deceased was a close relation of the two appellants being the son of Gopimohan Naik (P. W. 3), cousin of the appellant Benudhar and had land contiguous to the land of the appellants who had a dispute with the former over the possession of a part of the land where stood a ridge. On the day of occurrence, both the sides had gone upon their lands for the purpose of cultivation. A quarrel occurred and there was an altercation which was heard by Gopimohan Naik (P. W. 3), father of the deceased. Owing to his old age, he was not in a position to cover the distance and in the absence of the other male members in the family, he instructed Sita Naik (P. W. 1.) and Gita Naik (P. W. 4), the daughters of the deceased and Dinabandhu Naik (brother of the deceased) respectively to find out as to what had happened. Both these witnesses had seen the appellant Benudhar dealing lathi blows on the back and leg of the deceased and the other appellant, namely, Hrushikesh, dealing a lathi blow on the head of the deceased which had resulted in his death. To bring home the charge against the appellants the prosecution had examined fourteen witnesses. The appellants had admitted to have dealt the blows. They had, however, pleaded the right of private defence of property and person in that the deceased had trespassed upon and caused damage to the ridge in the possession of the appellants and after the assault by the appellant Benudhar, the deceased had attempted to deal a blow on the other appellant by a Kodala for which the latter had assaulted the deceased in exercise of the right of private defence of his person in order to save his life.
2. On a consideration of the evidence, the learned Sessions Judge held that the charge under Section 302 read with Section 34 of the Code had not been brought home to the appellants. He, however found the appellant Hrushikesh guilty under Section 302 of the Code and sentenced him thereunder to undergo imprisonment for life. The other appellant was convicted under Section 324 of the Code and sentenced thereunder to undergo rigorous imprisonment for a period of one year.
3. Mr. Deepak Misra, appearing on behalf of the appellants, has submitted that the evidence of P.Ws. 1 and 4 was not worthy of credence and even assuming that the prosecution case presented at the trial was true, the appellants had the right of private defence of their persons in causing the fatal injuries to the deceased. He has contended that if this Court holds/agreeing with the learned Sessions Judge, that the appellants had no right of private defence, the appellant Benudhar could appropriately be convicted under Section 323 of the Code and the other appellant could legally be convicted under Section 304 Part II of the Code as he had neither the intention to cause the death of the deceased nor to cause such bodily injury as was likely to cause his death. Mr. Sahoo, the learned Standing Counsel, has submitted that on a careful consideration of the evidence of P. Ws. 1 and 4 which found support in the medical evidence, coupled with the admissions made by the two appellants that they had assaulted the deceased, there could be no doubt that they were the authors of assault. He has further submitted and in our view, fairly so, that the contantions raised by the learned counsel for the appellants with regard to the nature of the crimes committed by the two appellants seem to be reasonable in the circumstances of the case.
4. Both P. Ws. 1 and 4 had made clear and cogent statements implicating the two appellants as the assailants of the deceased. As the evidence would clearly show, they were at a visible distance from the spot. Their evidence was not to be thrown out merely because one of them was the daughter of the deceased and the other was the daughter of the brother of the deceased. The report lodged by P. W. 1 at the police station naming the two appellants as the authors of the crimes, not long after the occurrence, would lend further assurance to her evidence in the Court. There were, in addition, the admissions made by both the appellants that they had assaulted the deceased.
5. As the evidence from the side of the prosecution would clearly show, the appellant Benudhar started the assault when both the appellants had lathis in their hands. In such circumstances, the deceased could legitimately apprehend that death or grievous hurt could be caused to him. He was, therefore, entitled to exercise the right of private defence of his person. Even assuming, by accepting the case of the defence of which there were no clear and acceptable materials, that the deceased assulted the appellant Hrushikesh by means of a Kodala which had caused a swelling on the person of the latter, he had done so in exercise of the right of private defence of his person. No right of private defence can be exercised against the act of a person who is himself exercising the right of private defence of his person. The theory of the right of private defence of person raised by the appellants must, therefore, fail.
6. The contentions raised by the learned counsel for the appellants with regard to the nature of the crimes committed by the appellants must, however, prevail for the reasons to follow.
7. Whether the assault by means of a lathi would come within the purview of Section 323 or 324 of the Code would depend on the nature of the weapon used. The weapon must be one of which one can predicate that the probable result of its use would be, by virtue of its very nature, death. The question whether a lathi is a deadly weapon is a question of fact to be determined in the circumstances of the case. In the absence of evidence about the description of the lathi indicating that if used as a weapon of offence it was likely to cause death, this appellant could legally be convicted under Section 323 and not under Section 324 of the Code.
8. The assault by the appellant Hrushikesh on the head of the deceased had resulted in his death. It must, however, be borne in mind that as the prosecution evidence would itself indicate, both the sides had gone upon the lands for the purpose of cultivation. There had been no pre-plan or pre-meditation to cause the death of the deceased. There was no evidence that the two appellants or any of them had gone to the land being armed with lathis. There ensued a sudden quarrel and there had been an altercation between the parties. On the spur of the moment and being incensed by anger, the appellant Hrushikesh had evidently picked up a lathi and had dealt but one blow on the person of the deceased which landed on his head and resulted in his death. In such circumstances, the case would not come under any of the four clauses of Section 300 of the Code. It would be legal, reasonable and proper, in our. view, to hold that this appellant had neither the intention of causing the death of the deceased nor the intention of causing such bodily injury as was likely to cause his death. In the circumstances of the case, it could be said that this appellant had the knowledge that by his act, he was likely to cause the death of the deceased and his act would come within the purview of Section 304 Part II of the Code.
9. We would next come to the sentences to be imposed on the appellants. It has been brought to our notice that the appellant Benudhar has remained in custody in the course of investigation and trial for a period of about fifty days. For his conviction under Section 323 of the Code, the period of imprisonment already undergone by him would suffice. The other appellant Hrushikesh has been in custody and has undergone imprisonment for a period of nearly four years, as has been submitted at the Bar. In the circumstances of the case, the period of imprisonment already undergone by him would meet the ends of justice.
10. In the result, the appeal is allowed in part. The order of conviction recorded against the appellant Benudhar Naik under Section 324 is altered to one under Section 323 of the Indian Penal Code and. the sentence of imprisonment passed against him is reduced to the period already undergone. The order of conviction and sentence passed against the appellant Hrushikesh Rout under Section 302 of the Indian Penal Code is set aside and in lieu thereof, he is convicted under Section 304 Part II of the Indian Penal Code and sentenced to undergo imprisonment for the period already undergone by him.
The appellant Benudhar Naik is discharged from his bail-bond. The other appellant Hrushikesh Rout, who is in custody, be set at liberty forthwith.
D.P. Mohapatra, J.
11. I agree.