P.K. Mohanti, J.
1. The five appellants stood charged under Sections 148 and 302/149, Indian Penal Code with having formed themselves into an unlawful assembly in prosecution of the common object of which they committed the murder of Gajendra Suna of village Bangabahal, P. S. Luisinga in the District of Bolangir in the morning of 29-6-1970.
2. Appellants 1 to 4 are the brothers of P. W. 1 Mohan Suna who is the father of the deceased Gajendra Suna. Appellant No. 5 is the son of appellant No. 1. The prosecution case was that P. W. 1 and his sons were in possession of a piece of cultivable land locally known as Munda Dull. They ploughed the land and sowed paddy seeds which had germinated by the date of occurrence. On the date of occurrence, the appellants trespassed over the land and started ploughing the same causing damage to the paddy seedlings. On getting information about this, the deceased went there with his wife and brothers and unyoked the ploughs of the appellants who killed him by dealing blows with deadly weapons. On the same day, F. I. R. was lodged by P. W. 1 at Luisinga P. S. which is at a distance of 22 Kilometres from the place of occurrence. After due investigation, the appellants along with two others were charge-sheeted by the police.
After trial, the learned Sessions Judge convicted the appellants under Section 302/149. Indian Penal Code and sentenced each of them to undergo imprisonment for life. He did not, however, record any finding of acquittal or conviction in respect of the charge under Section 148. Indian Penal Code.
3. The appellants pleaded not guilty to the charges. Appellants 1 to 4 contended that they were in possession of the land in question and that while they were ploughing the same on the date of occurrence the deceased and his brothers went there being armed with deadly weapons and assaulted them. Appellant No. 5 took the plea of alibi. No evidence was adduced in support of the defence plea.
4. The learned Sessions Judge on a consideration of the evidence led by the prosecution came to the findings that P. W. 1 and his sons were in possession of the land in question, that they had sowed paddy about 8 days before the date of occurrence, that the appellants trespassed on the land and damaged the paddy seedlings by ploughing the same and that when the deceased unyoked their ploughs, they attacked him with deadly weapons and caused his death.
On appeal, it is urged that the above findings are not warranted by the evidence on record and that the action of the appellants is justified by the right of private defence of person and property.
5. That the deceased died as a result of the injuries sustained by him at the time and place as alleged by the prosecution is not disputed. This is borne out by the direct evidence of the eve-witnesses and the corroborative evidence of the doctor (P. W. 5) who held postmortem examination over the dead body on 2-7-1970 and found five lacerated wounds and three incised wounds on different parts of the body and opined that the injuries causing fracture of the skull-bone were fatal. In his opinion, all the injuries were ante-mortem in nature and death was due to shock and haemorrhage. There is, therefore, no room for doubt that the death was homicidal.
6. The crucial point that falls for determination in this appeal is who was In actual possession of the land on which the occurrence took place. The evidence of possession adduced by the prosecution consists of the testimony of P. Ws. 1, 2, 4. 7, 8 and 9. P. Ws. 1, 2 and 7 are respectively the father, brother and widow of the deceased. P. W. 4 is the Gountia of the village and P. W. 9 is an adjoining owner of the land in question. Their evidence clearly establishes that P. W. 1 got the land as Choukidari jagir and that he has been in possession of the same along with his sons even after abolition of the Choukidari system. It was suggested to P. W. 1 in cross-examination that there was a compromise by which he gave up his claim to the land in favour of the appellants. Though he denied the suggestion no effort was made by the appellants to adduce any evidence in support of their contention. The evidence of the above P. Ws. proves beyond doubt that about 8 days prior to the incident P. W. 1 and his sons had sown paddy which had just germinated. P. Ws. 4 and 9 are independent and disinterested witnesses and we see no reason to disbelieve their sworn testimony. We, therefore, concur in the finding of the learned Sessions Judge that P. W. 1 and his sons were in possession of the land and that prior to the occurrence they had ploughed the land and sown paddy which had germinated.
7. In order to prove the incident of assault, prosecution relied on the evidence of P. Ws. 1, 2, 6, 7 and 8. P. W. 1 Mohan Suna, the father of the deceased, stated that he had seen the appellants going away from the spot with the weapons in their hands, but his statement before the Investigating officer was that the accused persons had left the spot by the time of his arrival. His version in the F. I. R. was that he heard from other persons about the weapons carried by the accused. In view of his previous contradictory statements no reliance can be placed on his evidence to the extent that he had seen the appellants going away from the spot carrying the weapons in their hands. P. W. 2, the brother of the deceased stated to have witnessed the occurrence from the beginning to the end, but his statement before the committal Court was that when he went to the spot he found Gajendra lying injured there, Thus, it appears that he was not present at the spot when the occurrence started. His presence at the spot was, however, admitted by the appellants since it was suggested to him in cross-examination that he had committed assault on them during the occurrence, He admitted to have assaulted appellant No. 4 Samaru Suna with a stick. His evidence is corroborated by the fact of presence of a lacerated wound on the head of Samaru Suna as noticed by the doctor - vide injury certificate Ext. 5. The witness deposed about presence of all the appellants at the spot and stated that he was assaulted by the appellants Nos. 4 and 5 with spear and Tangi respectively as a result of which he sustained bleeding injuries on his head. P. W. 6 Ganeswar Bag is a co-villager of the appellants and the deceased. His evidence was that while he was ploughing a field at a little distance from the place of occurrence, he heard a hulla and found that the appellants had surrounded Gajendra. Then he left the place out of fear. P. Ws. 7 and 8 are the brother and the widow of the deceased who had accompanied him to the spot. They have described in details the parts played by each of the appellants. According to them, when the deceased went to unyoke the ploughs, the appellants attacked him with deadly weapons. Appellants Nos. 1 and 2 assaulted with lathis, appellant No. 3 with a tabli and appellants Nos. 4 and 5 with spear and tangi respectively. On post-mortem examination, the doctor found lacerated and incised wounds on the dead body of the deceased and opined that those injuries could be caused by sharp cutting and blunt cutting weapons. According to P. W. 7 he was assaulted by appellant No. 4 Samaru Suna on his chest with a spear and the doctor found an injury on his chest. Against P. Ws. 7 and 8, no substantial criticism has been made except pointing out that they are relations of the deceased. Their evidence on the whole is reliable. On a careful consideration of the entire evidence on record and the defence plea of the appellants we are satisfied that they inflicted the injuries on the deceased which resulted in his death.
8. On the finding that the prosecution party were in cultivating possession of the land till the date of occurrence and had sown paddy which had germinated, the question arises whether the deceased had the right of private defence of property. Admittedly, the police station is 22 kilometres distant from the place of occurrence and the appellants had started ploughing the land before the deceased arrived there. If the deceased would not have attempted to prevent the appellants, they would have destroyed the seedlings on the entire land. There was, therefore, no time to take recourse to protection of public authorities. We would, accordingly, hold that the deceased had the right of private defence of property.
9. The appellants Nos. 2, 3 and 4 had sustained some simple injuries which must have been inflicted by the deceased and his brothers in order to prevent the appellants from causing damage to the paddy seedlings and to drive them away from the field in exercise of their right of private defence of property. Section 96 of the Indian Penal Code provides that nothing is an offence which is done in the exercise of the right of private defence. It is, therefore, clear that the infliction of the injuries by the deceased and his brothers on the appellants Nos. 2, 3 and 4 in exercise of the right of private defence of property is not an offence and as such the appellants had absolutely no right of private defence of person.
10. The point of law raised during the hearing of this appeal is that the omission to record a finding on the charge under Section 148, Indian Penal Code amounts to an implied acquittal of the offence involved in that charge and that once it is held that the appellants were acquitted of the offence under Section 148, Indian Penal Code, it is no longer possible to convict them under Section 302 read with Section 149. Indian Penal Code. In support of the above contention reliance was placed in AIR 1928 PC 254 : 29 Cri LJ 828 (Kishan Singh v. Emperor) AIR 1941 Oudh 575 : 42 Cri LJ 633, (Diwan v. Raja Ram) and : AIR1961Ori29 (Nanda Kishore Mohanty v. State of Orissa).
In AIR 1928 PC 254 : 29 Cri LJ 828 the accused was charged with an offence under Section 302, Indian Penal Code but was convicted under Section 304, Indian Penal Code and the trial court had failed to record an acquittal under Section 302, Indian Penal Code. On a revision petition by the Local Government for enhancement of sentence, the High Court altered the conviction to one under Section 302, Indian Penal Code and sentenced the accused to death. Their Lordships of the Judicial Committee held that there was an implied acquittal of the offence under Section 302, Indian Penal Code and in the absence of an appeal by the State the order of the High Court altering a finding of acquittal into one of conviction was without jurisdiction. As the accused was charged only with the offence of murder and the act of killing a person cannot both be murder and culpable homicide not amounting to murder, it was assumed for the purpose of that case that there was an implied acquittal of the charge under Section 302, Indian Penal Code. In AIR 1941 Oudh 575 : 42 Cri LJ 633, the accused were charged under Sections 323, 147, 426 and 325/149, Indian Penal Code but they were convicted only under Sections 323, 147 and 426, Indian Penal Code. On appeal, the Sessions Judge set aside the convictions and remanded the case for retrial of the accused for the offence under Section 325 read with Section 149, Indian Penal Code. Relying on the aforesaid decision in AIR 1928 PC 254 : 29 Cri LJ 828, the High Court held that the accused not having been convicted under Section 325/149. Indian Penal Code they should be regarded as having been impliedly acquitted although there was no express order. As the act of the accused cannot both be causing hurt under Section 323, Indian Penal Code and causing grievous hurt under Section 325, Indian Penal Code, it was assumed for the purpose of that case that the accused should be regarded as having been impliedly acquitted of the offence under Section 325 read with Section 149. Indian Penal Code. These decisions do not purport to lay down a general proposition of law that mere omission to record a finding on a charge amounts to an implied acquittal.
11. It is now necessary to examine the correctness of the Single Judge decision of this Court reported in AIR 1961 Orissa 29 : (1961) 1 Cri LJ 132 (2). In that case though a specific charge under Section 148, Indian Penal Code was framed against the petitioner Nanda Kishore Mohanty and his co-accused persons, the trying Magistrate convicted the petitioner under Sections 325, 455 and 152 read with Section 149, Indian Penal Code only. He was not convicted under Section 148, Indian Penal Code though the other accused persons were convicted for this offence along with other offences read with Section 149, Indian Penal Code. The trying Magistrate omitted to mention expressly in his judgment as to whether he convicted the petitioner under Section 148, Indian Penal Code or not. On appeal the Sessions Judge maintained the conviction of other accused persons under Section 148. Indian Penal Code but modified the conviction of the petitioner to one under Section 147, Indian Penal Code, overlooking the fact that there was no conviction in his case under Section 148, Indian Penal Code by the trying Magistrate. He also upheld the conviction of the petitioner under Sections 323 and 455 read with Section 149, Indian Penal Code. Upon these facts, Naraeimha, C. J., set aside the convictions of the petitioner observing as follows:
The net result therefore is that though the petitioner was charged under Section 148. Indian Penal Code, the trying Magistrate has not passed any order, either of conviction or acquittal in respect of that charge and the Sessions Judge has convicted him under Section 147, Indian Penal Code. The omission of the trying Magistrate to convict the petitioner under Section 148, Indian Penal Code must in the circumstances be held to mean that he was acquitted of that charge. It is immaterial whether this omission was due to oversight or any other reason. Once there is, thus, an acquittal of the petitioner of the charge under Section 148, Indian Penal Code, the Sessions Judge has no jurisdiction to alter the conviction to one under Section 147. Indian Penal Code. The State should have moved the High Court for setting aside the order of acquittal in respect of the charge under Section 148. But this they did not do.
The acquittal of the petitioner in respect of the offence under Section 148, Indian Penal Code will also affect his conviction under Section 455/149, Indian Penal Code and 323/149, Indian Penal Code. The conviction for these two offences is based on the assumption that the petitioner was a member of the unlawful assembly but his acquittal in respect of the charge under Section 148, Indian Penal Code, must necessarily lead to the inference that he was not a member of such an assembly. Hence his conviction under Sections 455 and 323, Indian Penal Code read with Section 149, Indian Penal Code must be set aside.
12. Where a charge has been framed against an accused person in a warrant case, the proceedings before the Court can end either in acquittal or in conviction and in no other way. To lay down a bald proposition that omission to record a finding on a charge amounts to implied acquittal is to mis-state the correct law and is to put a premium on dereliction of duty on the part of the Magistrate. According to Section 367(2), Criminal Procedure Code, every judgment shall specify the offence (if any) of which and the section of the Penal Code or other law under which the accused is convicted and the punishment to which he is sentenced. Under Clause (4). if it be a judgment of acquittal it shall state the offence of which the accused is acquitted and direct that he be set at liberty. In view of these mandatory provisions of law, omission to record a finding is a flagrant breach of fundamental principles of judicial procedure as to what a judgment of acquittal or conviction should be. To imply an acquittal from a mere omission to record a decision would frustrate the ends of justice. In our opinion, a judgment delivered by a Court without due regard to the provisions of Section 367, Criminal Procedure Code is an imperfect judgment and the appellate court in exercise of its powers under Section 423, Criminal Procedure Code can direct the trying Magistrate to write a proper judgment in accordance with law. In re K.V. Ayyiaswamy AIR 1965 Andh Pra 105 : 1965-1 Cri LJ 281, a Division Bench held that where facts do not exist from which an implied acquittal can be assumed, the Court would not be justified in treating the omission to record a finding on a charge as being tantamount to an acquittal. We are in respectful agreement with the view expressed in that case.
13. We are unable to subscribe to the view that omission to record a finding of acquittal or conviction on a charge under Section 148, Indian Penal Code would necessarily affect the conviction for another offence read with Section 149, Indian Penal Code. The essence of the offence of rioting is use of force and violence by an unlawful assembly in prosecution of its common object. If it can be found on the materials on record that there was a use of force and violence by the accused as members of an unlawful assembly, the omission to record a formal conviction under Section 148, Indian Penal Code would not affect the conviction for other offences by the application of Section 149, Indian Penal Code. In : 1966CriLJ197 (Mahadev Sharma v. State of Bihar) their Lordships laid down that it is not obligatory to charge a person under Section 143 or Section 147 when charging him for an offence with the aid of Section 149, It was indicated that offences under Sections 143 and 147 are implied when the charge is laid for an offence like murder with the aid of Section 149 Indian Penal Code.
14. It follows from the foregoing discussions that the case in : AIR1961Ori29 was not correctly decided and we overrule the same.
15. No doubt, in the judgment of the learned Sessions Judge there is no express finding that the appellants were convicted under Section 148, Indian Penal Code But he has recorded clear findings which lead to the irresistible conclusion that the appellants formed themselves into an unlawful assembly and used force and violence in prosecution of their common object. It the Sessions Judge had recorded a finding that the offence of rioting was not committed and he had nevertheless convicted the appellant under Section 302/149, Indian Penal Code, the conviction could not be sustained. But on the findings recorded by him it is not possible to say that omission to record an express finding on the charge under Section 148, Indian Penal Code amounts to an implied acquittal of the offence of rioting. It is significant to note that all the appellants have been convicted under Section 302 read with Section 149, Indian Penal Code and a perusal of the judgment shows quite obviously that the learned Sessions Judge was satisfied that the appellants had been proved to be guilty of the offence under Section 148, Indian Penal Code. He has stated more than once in the judgment that the appellants went in a body with the common object of taking forcible possession of the land and that when their forcible entry was resisted they took the aggressive action and assaulted the deceased to death. Moreover, the facts and circumstances of the present case are such that the appellants could be convicted under Section 302 read with Section 149, Indian Penal Code without the charge under Section 148, Indian Penal Code. The charge under Section 148, Indian Penal Code framed by the learned Sessions Judge was too vague as the common object of the unlawful assembly was not specified and it was stated to be : 'To commit rioting', which was meaningless. It is only in the charge under Section 302 read with Section 149, Indian Penal Code that the common object of the unlawful assembly was specified. Thus the absence of a conviction under Section 148, Indian Penal Code is no ground for setting aside the conviction under Section 302 read with Section 149, Indian Penal Code.
16. On the facts proved, the following conclusions emerge:
(i) The prosecution party were in possession of the land and grew paddy which had germinated.
(ii) The appellants formed themselves into an unlawful assembly to commit criminal trespass and mischief.
(iii) They armed themselves with dangerous weapons to meet any resistance that might be offered to them and to overcome the same by use of their weapons and, if necessary, to cause death.
(iv) They actually caused death in order to accomplish their object.
(v) Each of the appellants must have known that death was likely to be caused in prosecution of their common object.
17. The plea of alibi taken by appellant No. 5 has not been substantiated by any evidence. The evidence on record leaves no room for doubt that all the appellants participated in the crime. From the number, nature and location of the injuries, the intention to commit murder becomes apparent The conviction under Section 302 read with Section 149, Indian Penal Code is, therefore, justified- In result, the appeal fails and is dismissed.
G.K. Misra, C.J.
18. I agree.