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Bidyadhar Mohanta and ors. Etc. Vs. State of Orissa and Etc. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1985CriLJ1853
AppellantBidyadhar Mohanta and ors. Etc.
RespondentState of Orissa and Etc.
Cases ReferredSmt. Dhara Dei v. Prafulla Swain
Excerpt:
.....the aforesaid principle, it is necessary to scrutinise the prosecution evidence, as well as, the defence evidence so as to find, not only if the findings recorded by the learned sessions judge were justified, but also, if the appellants in the criminal appeal exercised their right of private defence adequately within limitations or exceeded the same and whether the respondents in the government appeal could be convicted for the offences they were charged with. it is thus clear from his evidence that the death of the deceased was on account of assault of by weapons like tangi (m. having gone through the evidence of the aforesaid eyewitnesses of the occurrence, we are satisfied that there is no reason to disbelieve their version so far as this part of the prosecution case regarding..........the aforesaid principle, it is necessary to scrutinise the prosecution evidence, as well as, the defence evidence so as to find, not only if the findings recorded by the learned sessions judge were justified, but also, if the appellants in the criminal appeal exercised their right of private defence adequately within limitations or exceeded the same and whether the respondents in the government appeal could be convicted for the offences they were charged with. the evidence of the medical officer (p.w. 1) who conducted the post-mortem examination over the dead body of the deceased shows incised wounds on the face and head including fracture on the scalp. the scalp injuries could be caused by the tangi (m. o. i) and other injuries could be caused by weapons, such as, m. os. ii and iii......
Judgment:

K.P. Mohapatra, J.

1. These two appeals arise out of the same judgment passed by the learned Sessions Judge, Mayurbhanj. They were heard analogously and this common judgment will govern both.

2. The appellants in Criminal Appeal No. 126 of 1981 and the respondents in Government Appeal No. 2 of 1982 were tried for having committed offences under Sections 148, 302 read with Sections 149 and 323 read with Section 149 I. P. C. for the murder of Ashutosh Mohanta (Deceased) at about 7 a. m. on 27-11-1979. While the appellants in Criminal Appeal No. 126 of 1981 were convicted under Section 302/34 I. P. C. and sentenced to imprisonment for life, the respondents in Government Appeal No. 2 of 1982 were found not guilty and acquitted by the learned Sessions Judge.

3. The prosecution case may be stated in brief. The deceased purchased a piece of agricultural land from one Satrughna Mohanta, son of the recorded tenant Milu Mohanta about three years prior to the occurrence. Purna Chandra Mohanta, one of the respondents in the government appeal, purchased the self-same land from Gurubari, sister of Satrughna and daughter of Milu.. In the evening prior to the date of occurrence there was a compromise between Ananta, husband of Gurubari and the deceased in presence of some of the prosecution witnesses. It was decided that paddy raised on the land and the straw shall be taken by Ananta. The deceased shall pay back the consideration of the land (sic). On 27-11-1979 at about 7 a. m. the deceased went upon the land with some of the prosecution witnesses. The appellants in the criminal appeal and the respondents in the government appeal being armed with Tangis, Budias and lathis arrived there. They assaulted the deceased by the weapons they had carried, as a result of which, he sustained a large number of bleeding injuries, fell down on the ground and died instantaneously. When P.W. 8, Motilal protested, he was also assaulted resulting in injuries on his person. P. W. 12, Bhagirathi Mohanta, son of the deceased arrived and found his father seriously injured. He brought the deceased to his house and left for Betanati Police Station to lodge the F. I. R. (Ext. 9/1). After completion of investigation, charge-sheet was submitted against the appellants in the criminal appeal and the respondents in the government appeal for various offences already referred to above.

4. Appellants Bidyadhar and Sambhunath in the criminal appeal and respondents Purna Chandra and Jagannath in the government appealrare natural brothers. Their defence in the trial court was that the land in question was in their possession after purchase from the rightful owner Gurubari under a registered sale deed. They had raised paddy crops theron in the year 1979. On the day prior to the occurrence they had reaped the paddy crops and had kept the paddy sheaves on the land guarded by appellant Sambhunath of the criminal appeal. In the morning of the date of occurrence the deceased along with a large number of persons including some of the prosecution witnesses went upon the land and tried to bundle the paddy sheaves for the purpose of removal. When appellant Sambhunath protested, the deceased attempted to throttle him. On hearing the cries of appellant Sambhunath, appellant Bidyadhar arrived at the spot and brandished a Tangi which might have struck the deceased. The rest of the appellants and the respondents of the criminal appeal and the government appeal respectively took the plea that they had nothing to do with the alleged dispute and took no part in the occurrence.

5. While convicting the appellants of the criminal appeal and acquitting the respondents of the government appeal, the learned Sessions Judge recorded the following categorical findings based on a critical appreciation of prosecution evidence adduced before him : - /

1) The death of the deceased was homicidal in nature.

2) The prosecution failed to establish that the deceased was in possession of the land or had raised paddy crops thereon.

3) Appellants Bidyadhar and Sambhunath of the criminal appeal and respondent Purna Chandra of the government appeal were in possession and had raised paddy crops on the land.

4) The deceased along with prosecution witnesses came upon the land to remove the paddy-sheaves which had been reaped by appellants Bidyadhar and Sambhunath of the Criminal appeal and respondent Purna Chandra of the government appeal.

5) The appellants of the criminal appeal assaulted the deceased by means of Tangis and Budias in furtherance of their common intention resulting in his death.

6) The prosecution version of respondents Purna Chandra, Jagannath, Manmath, Mahendra and Hrudanath of the government appeal pressing the chest of the deceased by means of a lathi by giving jerks at both ends was unbelievable.

7) The plea of right of private defence of person and property was not available to the appellants of the criminal appeal, because, none of them received any injury and even after the deceased fell down on the ground, he was repeatedly assaulted and so, more harm than necessary was caused when there was no reasonable apprehension of death or grievous hurt.

8) Prosecution could not prove that P. W. 8, Motilal had sustained injuries as a result of the alleged assault by appellant Bidyadhar.

6. Mr. P. K. Dhal, learned Counsel appearing for the appellants of the criminal appeal, as well as, the respondents of the government appeal urged that while the appellants were, in the facts and circumstances of the case, entitled to the benefit of right of private defence of property, in the absence of positive evidence against them, the respondents could not be convicted. The learned Additional Standing Counsel, on the other hand, supported the order of conviction and sentence on the appellants and further called upon us to convict the respondents of the government appeal for the offences they were charged with. The contentions require careful examination.

7. The principle regarding the right of private defence of person and property has been very succinctly and lucidly laid down in the decision reported in AIR 1975 SC 674 : (1975 Cri 1/1479), Puran Singh v. State of Punjab. Fazl All, J. speaking for the court held that the right of private defence of person or property is to be exercised under the following limitations:

i) That if there is sufficient time for recourse to the public authorities the right is not available;

ii) that more harm than necessary should not be caused;

iii) that there must be a reasonable apprehension of death or of grievous hurt to the person or damage to the property concerned.

The learned Judge emphasised that it is s ot the law that a person when called upon to face an assault must run away to the police station and not protect himself or when his property has been the subject-matter of trespass and mischief he should allow the aggressor to take possession of the property while he should run to the public authorities. Where there is an element of invasion or aggression on the property by a person who has no right to possession, then there is obviously no room to have recourse to the public authorities and the accused has the undoubted right to resist the attack and use even force if necessary. The right of private defence of property or person, where there is real apprehension that the aggressor might cause death or grievous hurt to the victim, could extend to the causing of death also, and it is not necessary that death or grievous hurt should actually be caused before the right of private defence is exercised. A mere reasonable apprehension is enough to put the right of private defence into operation. With regard to possession even of a trespasser claiming right of private defence, the learned Judge held that the nature of possession which may entitle a trespasser to exercise the right of private defence of property and person should contain the following attributes:

i) that the trespasser must be in actual physical possession of the property over a sufficiently long period:

ii) that the possession must be to the knowledge either express or implied of the owner or without any attempt at concealment and which contains an element of animus possidendi. The nature of possession of the trespasser would however be a matter to be decided on facts and circumstances of each case:

iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced in by the true owner; and

iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the. crops grown by the trespasser and take forcible possession, in which case the trespasser will have a right of private defence and the true owner will have no right of private defence.

8. In the light of the aforesaid principle, it is necessary to scrutinise the prosecution evidence, as well as, the defence evidence so as to find, not only if the findings recorded by the learned Sessions Judge were justified, but also, if the appellants in the criminal appeal exercised their right of private defence adequately within limitations or exceeded the same and whether the respondents in the government appeal could be convicted for the offences they were charged with. The evidence of the Medical Officer (P.W. 1) who conducted the post-mortem examination over the dead body of the deceased shows incised wounds on the face and head including fracture on the scalp. The scalp injuries could be caused by the Tangi (M. O. I) and other injuries could be caused by weapons, such as, M. Os. II and III. According to his report (Ext. 1), death was caused on account of shock due to intracranial haemorrhage. It is thus clear from his evidence that the death of the deceased was on account of assault of by weapons like Tangi (M. O. I) and Budias (M. Os. II and III). Srinath Mohanta (P.W. 4), Bhakta Mohanta (P.W. 5), Kanhu Behera (P.W. 6), Suren Mohanta (P.W. 7), Motilal Mohanta (P.W. 8) and Laxmidhar Pattanaik (P.W. 11) were witnesses of possession in respect of the land. Although all of them stated in the court of session that the deceased was in possession of the disputed land, in their statements before the Investigating Officer (P.W. 14) they had stated that respondent Purna Chandra of the government appeal, brother of the appellants Bidyadhar and Sambhunath of the criminal .appeal was in possession of the land for three years prior to the date of occurrence and had raised paddy crops theron in the year of occurrence. He had reaped the standing paddy crops on the day before the date of occurrence and the paddy sheaves were lying on the land itself. Along with their evidence it is necessary to consider the evidence of D. Ws. 1 and 2. the former being a Revenue Inspector who proved the rent receipts (Exts. L to L/3), the rent being paid by appellant Bidyadhar and respondent Purna Chandra and the latter having proved the sale deed (Ext. M) executed by Gurubari on 2-4-1975 in favour of appellant Bidyadhar and others. A significant fact which appears.from the F. I. R. (Ext. 9/1) is that in the evening prior to the date of occurrence there was a settlement in the absence of appellants Bidyadhar and Sambhunath and their brothers, respondents Purna Chandra and Jagannath. A decision was taken that Ananta would remove the crops from the land. Any decision taken in their absence was not binding on them, particularly when, there is evidence that they were in possession and had raised the paddy crops. Despite the decision, in the morning of the date of occurrence, the deceased came upon the land with some of the prosecution witnesses so as to remove the crops. It is at that stage that the appellants in the criminal appeal and the respondents in the government appeal arrived on the land and resisted the deceased and others. While resisting, the deceased was assaulted by appellant Bidyadhar on the head by means of a Tangi (M.O. I) and after he fell down on the ground, the other two appellants assaulted him by means of the Budias (MOs. II and III). The assault by the appellants has been established by the evidence of eye-witnesses to the occurrence, such as, Kanhu Behera (P.W. 6), Suren Mohanta (P.W. 7), Motilal Mohanta (P.W. 8) and Dhana Marandi (P.W. 9). It however appears from the evidence of Bhagirathi Mohanta (P.W. 12) son of the deceased and informant that he did not see the actual assault and arrived at the place of occurrence afterwards. Having gone through the evidence of the aforesaid eyewitnesses of the occurrence, we are satisfied that there is no reason to disbelieve their version so far as this part of the prosecution case regarding assault on the deceased was concerned. But their evidence to the effect that some of the appellants and the respondents pressed the chest of the deceased by means of a lathi at both ends cannot be believed, because, had they done so, there , ought to have been injuries both external and internal on the chest region of the deceased. But no such injuries were detected by the Medical Officer (P.W. 1) and recorded in the post-mortem report (Ext. 1). In our opinion, therefore, the learned Sessions Judge was justified in holding that the prosecution proved the assault on the deceased by the appellants in the criminal appeal by means of Tangi and Budias (M.Os. 1 to 111) and that there was no assault on the chest of the deceased by way of pressing a lathi. The learned Sessions Judge discussed the evidence of Kanhu Behera (P.W. 6) and Suren Mohanta (P.W. 7) with regard to the assault on Motilal Mohanta (P.W. 8) and came to hold that their evidence relating to such assault was discrepant and they gave out different stories before the Investigating Officer (P. W. 14). He, therefore, was correct in arriving at the conclusion that the assault on Motilal Mohanta (P. W. 8) was not established by the prosecution.

9. The next and the most important point for decision is whether the appellants in the criminal appeal exercised their right of private defence of property within the limitations prescribed by law or exceeded the same. The learned Sessions Judge was quite conscious of the appellants' claim of right of private defence of property, but according to him, they exceeded the parameters prescribed by law, for, he held:.So in my opinion, the accused persons exceeded the limitation while exercising their right of private defence of property.

Having held as above he proceeded wrongly to convict the appellants under Sections 302/34 I.P.C. As pointed out in : AIR1975SC1674 (supra) the question as to whether a person having a right of private defence has used more force than was necessary would depend on the facts and circumstances of each case. The appellants in the present case assaulted the deceased by dangerous sharp cutting weapons, such as, Tangi and Budias even after he had fallen down on the ground. They undoubtedly had the right to resist the deceased and his men when they attempted to remove the paddy crops from the land, because, before their own eyes, they saw that they were going to be deprived of food and sustenance for their life and well-being. There was indeed no time to take recourse to public authorities, because, had it been done, the entire paddy crops would have been removed by the deceased and' appellant Bidyadhar and his brothers would not have got a grain of it although they had toiled and shed sweat to grow the crops. They were not to behave and act as cowards so as to stand and stare, while the deceased and his men were ready and were going to deprive them of the fruits of their labour. While, however, exercising the right of private defence by assaulting the deceased in furtherance of their common intention to cause death the appellants, in our view, exceeded the right by using more force than necessary, because, they continued to assault even after the deceased had fallen down and had become harmless. In our considered opinion, therefore, this is a fit case in which, in disagreement with the learned Sessions Judge, we should hold that the appellants in the criminal appeal exceeded their right of private defence. So instead of being convicted under Sections 302/34, I.P.C. it would be appropriate to convict them under Section 304, Part I read with Section 34, I.P.C. and sentence each of them to undergo rigorous imprisonment for a period of seven years. In taking this view we are supported by a decision reported in : 1979CriLJ28 , Ghansham Dass v. State (Delhi Administration), in which the facts and evidence were almost identical.

10. In the government appeal, the evidence as discussed does not show that the respondents committed the offences with which they were charged beyond reasonable doubt. On such evidence the learned Sessions Judge refused to convict them. We see no reason why we should differ from him. By a series of decisions, law has been settled that a judgment of acquittal should not be interfered with unless the assessment of evidence and conclusion drawn by the trial Court are unreasonable, erroneous and perverse. Reversal of a judgment of acquittal will not be justified simply on the ground that the appellate court's view on the evidence on record is different from that of the trial Court or on the same set of evidence, two views are reasonably possible (see 1982 Cut LR (Cri) 20 : 1982 Cri LJ 942, State of Orissa v. Trinath Das 1983 Cut LR (Cri) 9 : 1983 Cri LJ 1038, Charupprava Dei v. Duryodhan Mohanty 1983 Cut LR (Cri) 207, State of Orissa v. Arjuna Das and (1984) 1 Orissa LR 621, Smt. Dhara Dei v. Prafulla Swain to quote a few).

11. For the foregoing reasons, conviction and sentence of the appellants in Criminal Appeal No. 126 of 1981 are altered. They are convicted under Section 304, Part I read with Section 34, I.P.C. and sentenced to undergo rigorous imprisonment for seven years each. The criminal appeal is allowed in part. Government Appeal No. 2 of 1982 is dismissed.

B.K. Behera, J.

12. I agree.


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