B.K. Das, J.
1. The appellant has been convicted under Section 302, Penal Code and sentenced to rigorous imprisonment for life.
2. According to the prosecution the disputed land was purchased by Chandra Samantra (P. W. 11) and one Uchhab Samantarsingh on 10-5-60 under sale deed Ext. 3) from one Ananda Chandra Panda, (P. W. 16) and was under the personal cultivation of the purchasers in the year I960. But in the following year they leased out these lands to some of the villagers of Bengi-tangi. On the date of occurrence that is 22-5-1982 at about 3 p. m. the Bhag chasis went upon the disputed land to sow paddy seeds when the accused persons who come from different villages came there armed with lathis etc- and created disturbance. As a result of the marpit that followed some of the persons on the side of the Bhag-chasis sustained injuries and one Benu Naik met his death. Immediately after the occurrence, P. W. 1 lodged the F. I. R, (Ext. 1) and after investigation 19 accused persons including the appellant were charge-sheeted and committed to the Court of Sessions.
The learned Sessions Judge acquitted all the accused persons except the present appellant. He doubted the story of possession as put forth by the prosecution and held the prosecution party to be the aggressor and accordingly acquitted the accused persons on the ground that they were protected by the right of private defiance of property and person. He however, convicted the appellant under Section 302, Penal Code and sentenced him as stated above on the ground that it was he who without any justification, dealt the fatal blow on the deceased Benu. It is against this order of conviction and sentence, the appellant has come up in appeal.
3. The accused denies to have assaulted the deceased. According to him he along with some others was in cultivating possession of the land on Bhag basis and had purchased the land for about one year (Ext, G). On the date of occurrence, while they were ploughing the land a number of persons of the prosecution side including some P. Ws. such as P Ws. 1, 2, 3, 5,7, 8 and 11 came upon the land with lathis and obstructed them and Makund and Naba assaulted him and there was a mutual fight in course of which accused Gokuli was assaulted when Gokuli snatched away the Thenga from the hand of one of the companions of the deceased and assaulted him with the same. Thus his specific case is that the deceased met with his death by the assault of Gokuli and not by his assault. Accused Gokuli in his 342 statement though did not admit specifically that it was he who had assaulted the deceased adopted the version of the appellant. In support of its version the defence examined some witnesses.
4. The learned Sessions Judge accepted the case of the defence and held that they were in possession of the disputed land and he further found the prosecution party as the aggressors and the accused persons were protected by the right of private defence of both person and property in inflicting injuries on the members of the prosecution party. With respect to the appellant however, his finding is that it is the appellant whose lathi blow was responsible for the death of Benu though he separately charged the appellant as also Subal Martha (since acquitted) under Section 302, Penal Code for having committed the murder of Benu. As to his right of private defence the learned Judge gave the following finding :
The accused Natha cannot have any right of private defence to the charge under Section 302, Penal Code. His medical report (Ext. 27) shows that he received four simple injuries. According to him he was assaulted by Makunda Samantra and Naba Samantra with Thengas. So there does not seem to be any reason why he should have caused grievous injury on the head of Benu which has resulted in the latter's death.
Mr. Patnaik, Learned Counsel for the appellant rightly contended that for the exercise of the right of private defiance it is not necessary that the appellant him self must have been the target of assault. Section 97 of the Penal Code in clear terms says:
Every person has a right subject to the restrict. tines contained in Section 99, to defend his own body, and the body of any other person against any offence affecting human body.
Thus, it cannot be said that because the appellant himself was not the target of assault, he had no right of private defiance of the body of another under the law. Whether the circumstances were such as to justify the infliction of a fatal injury is entirely a different matter where different considerations would weigh. But the view of the trial court that the appellant had no justification to cause the injury on Benu, as he himself was not the target of assault is obviously wrong. The appellant was charged under Section 302, Penal Code for having committed the murder of Benu. In view of the fact that there is no clear evidence that this appellant was responsible for the fatal injury on the deceased Benu, it is unnecessary to see whether the circumstances were such so as to justify the accused to deal the fatal blow on Benu in exercise of his right of private defiance, I would examine the evidence in brief.
5. (After discussing the evidence, His Lordship proceeded.)
In view of this unsatisfactory state of evidence, I must hold that the prosecution has not been able to establish its case beyond all reasonable doubt against the appellant, and the appellant is entitled to an acquittal,
6. In the result, the appeal is allowed, the order of conviction and sentence passed upon the appellant is set aside and he is directed to be set at liberty forthwith.
S. Barman, J.
7. I agree.