B.K. Behera, J.
1. The three respondents stood charged under Sec. 302 read with Sec. 34 of the Indian Penal Code ( for short, the 'Code' ) with having committed the murder of Trilochan Naik (to be described hereinafter as 'the decessed') by assaulting him to death by means of an axe and lathis is furtherance of their common intention on May 26, 1978, at Chinger Bandha in the district of Kalahandi and under Sec. 323 of the Code for voluntarily causing hurt to Kumar Naik ( P. W. 1 ), the brother of the deceased. The prosecution had presented a case that owing to previous land dispute between the parties, the three-respondents, being armed, attacked the deceased and P. W, 1 when the latter enquired from the respondents as to why they had ploughed the land belonging to the deceased's party.
2. It is not disputed at the Bar that the deceased had died a homicidal death and that P. W. 1 had sustained an injury on his person. The respondents had taken the specific pleas of right of private' defence both of person and of property. The learned trial Judge reacted the theory of right of private defence of property, but upheld the plea of tight of private defence of person, as according to him, the evidence adduced from the side of the prosecution did show that the deceased and P. W. 1 were the aggressors and had initiated the assault on one of the respondents, namely, Raisingh, whose cry for help brought the other two respondents to the spot and the attack made on the deceased and P. W. 1 by the respondents was in exercise of right of private defence of the person of Raisingh. The learned Judge accordingly found that neither of the two charges had been brought home to the respondents.
3. Mr. M.R. Mohanty, the learned Addl. Standing Counsel, has taken us through the relevant prosecution evidence and has submitted that as the finding of the learned trial Judge was that there had been a free fight between the parties, the question of right of private defence of person did not arise. He has also contended that on the evidence on record, no right of private defence of person had been made out. Mr. Misra, the learned counsel for the respondents has, however, contended that although P. Ws. 1, 10 and 12, the brother, son and widow of the deceased respectively, had tried to make out a case as if for no fault of the deceased and P. W. 1, a wanton attack had been made on them by the respondents, the evidence of P. Ws. 12 and 13, two independent witnesses, would clearly bring out a case of right of private defence of person and it was not a case where there had been a free fight.
4. The learned Additional Standing Counsel has submitted that if the exercise of right of private defence of person is accepted, there it no evidence to substantiate that the exercise of that right bad been exceeded by the respondents. The question for consideration is as to whether the respondents did have the right, of private defence of the person of one of them namely, Raisingh.
5. Under the law, a person has a right of self-defence not only to defend his own body, but also the body of another. As has been submitted by the learned Additional Standing Counsel, if there is a free fight between the parties, the right of private defence is not available to either party. In this connection, reference may be made to the principle laid clown by the Supreme Court in AIR 1978 S. C. 414: (Vishvash Aba Kurane v. State of Maharashtra). In the body of the judgment, the expression 'free fight' has been used by the learned trial Judge and according to him, there had been a free fight between the parties. It appears to us that this expression has loosely been used in view of the specific finding recorded by the trial Court that the deceased and P. W. 1 were the aggressors and they had started the assault on the person of the respondent Raisingh by means of lathis, after having waited for him while the latter was taking his bath and when he came near them, the deceased and P. W. 1 who had been waiting under a Mahul tree, suddenly attacked him whereafter the other respondents came to the rescue of the respondent Raisingh. The findings recorded by the trial Court would show that there had been no free fight between the parties.
6. The right of private defence is a very valuable right. It has a social purpose. This right is not to be construed narrowly and it deserves to be fostered within the prescribed limits. See AIR 1971 S. C. 1857 : (Vidya Singh v. State of Madhya Pradesh ) and 1972 Cri. L.J. 661: Mohammed Khan and Ors. v. State of M.P.
7. We have no doubt in our mind that P. Ws. 1, 10 and 12, being highly interested witnesses who would look for a successful termination of the trial against the respondent?, had suppressed the material parts of the case with regard to the exercise of right of private defence of person and this conclusion of ours would be fortified by the evidence of the two independent witnesses, namely, P, Ws. 12 and 13. P. Ws. 12 had deposed :
'...Trilochan died in the year before last Baisakha on a Friday. On that day myself, Purandar Raut, Naka, Meta Harijan, Tera Bhatra Tera Gurubaru, Kirtan Harijan were ploughing the land of the Gountia which was at distance of about 200 yards from the Chinker badha. At that time we found Tila and Kumar were proceeding to Chingar Bandha. At that time accused Raisingh was corning from the tank with two pair of bullocks. They met each other under the Mahua tree. First of all Tila and Kumar attacked accused Raisingh and assaulted by means of their stick. Being assaulted by Tila and Kumar, Raisingh cried for help. The other two accused persons who were taking their both at the bandha rushed to the spot and assaulted Tila and Kumar. All the three accused persons assaulted Tila and Kumar. I cannot say if Parkhit was holding any axe but the three accused persons were holding sticks. ...'
P. W. 13 had testified :
'... The occurrence took place in the year before last on a Friday in the month of Baisakha. On that day myself, Purandar Raut, Jama Harijan another Purandar Rout, Tera Pujhari and some others were ploughing the land of the Gountia. Chinker bandh is at a distance of two hundred yards from the place where we were ploughing the land. At that time we saw Tila and Kumar going to Chinker Bandha with two sticks. The accused persons were coming from the village Bandha with three sticks in their hands. When both the parties met each other first of all Tila and Kumar assaulted accused Raisingh by sticks. Raisingh cried for help. The other two accused persons who are the sons of Raisingh came to rescue Raisingh and assaulted Kumar and Tila. As a result of the assault Tila died and Kumar sustained injuries. ...'
It would thus be clear from the evidence of these two witnesses that the deceased and P. W. 1 were the aggressors and they had started the assault by attacking Raisingh by means of lathis and the cry of Raisingh for help brought the two other respondents and then all of them, in exercise of the right of private-defence of the person of Raisingh, had warded off the attack by the deceased and P. W. 1 with such force as was necessary for self-defence. As the evidence would clearly show, the deceased and P. W. 1 had been waiting under a tree and seeking an opportunity to attack Raisingh on his way back from the bathing ghat. From the way in which they attacked Raisingh, the respondents would have reasonable apprehension in their minds that but for the exercise of right of private defence of person, death or grievous hurt to the respondent Raisingh would otherwise be the consequence. Under Sec. 100 of the Code, the respondents were entitled to kill the deceased in exercise of the right of private defence of person.
8. For the aforesaid reasons, we are at one with the trial Court that whatever had been done by the respondents, had been done in exercise of the right of private defence of the person of the respondent Raisingh and they had properly been held to be not guilty of the charges.
9. The appeal fails and is dismissed. The respondents if in custody, be set at liberty forthwith.
K.P. Mohapatra, J.
10. I agree.