1. The 1st appellant in this case has been convicted under Sections 114 & 304, Indian Penal Code, and sentenced to three years' rigororous imprisonment and the 2nd appellant has been convicted under Section 304, Indian Penal Code, and sentenced to five years' rigorous imprisonment, by the Sessions Judge of Ganjam.
2. The case for the prosecution is that there was a dispute about a plot of land between two castes, the prosecution party called Sioloes and the appellant's party called the Bavuries. The accused's party informed the Magistrate about this and the Magistrate promised to go to the village, make inquiries and pass orders. On the day of the occurrence, the deceased went to the plot in front of the house of Sioloes and planted posts for the purpose of putting up sheds. This was objested to by the appellant's party in consequence of which there was a fight.
3. The evidence on the side of the prosecution shows that the deceased was stabbed by the 2nd accused and he was also beaten by three other persons who were acquitted in the lower Court. Apart from the evidence of prosecution witnesses NOs. 2, 5 and 6, who are Sioloes, we have the evidence of P. Ws. Nos. 7 and 8, Brahmins who speak to the occurrence. They say that the deceased was planting posts and the 2nd appellant wanted to uproot one, in consequence of which there was a tussle and the 1st appellant told the 2nd appellant to bring a knife and stabbed the deceased. Before he was stabbed it is said that he took a stick and beat Accused Nos. 2, 4 and 5. It is clear from the evidence that there was a fight and the wound certificates, Exs. J, J1 and J2, show that the 2nd appellant and two other persons who were Accused Nos. 4, and 5 in the lower Court were severely injured. The 5th accused had at least two incised wounds, evidently caused by a sharp cutting instrument.
4. On the side of the prosecution three persons were injured, the deceased and P. Ws. Nos. 2 to 10. Exhibit O, the post mortem certificate, shows that the deceased was very severely injured on the head. Both the tablets of the skull were fractured (4 1/2 in.'in length and 1 1/4 in depth). The wound certificate makes it abundantly clear that there was a free fight between the prosecution party and the appellant's party. That there was a free fight between the parties is not seriously disputed. The question is whether the appellants were justified in causing the death of the deceased in self-defence. The appellants did not plead the right of self-defence before the committing Magistrate or before the Sessions Judge.
5. Mr. Jagannadha Doss contends that from the evidence on record we can infer that the appellants were justified in causing the death of the deceased in defending themselves. No doubt, even if the accused did not plead self-defence, it is open to the Court to consider such plea if the prosecution evidence would support it. In this case the evidence on the side of the prosecution does not show that the 2nd appellant was justified in inflicting fatal injuries to the deceased. It is not quite clear whether the injuries to the 5th accused were caused before or after the deceased was injured. If the defence had taken the trouble to make things clear either by cross-examination of the prosecution witnesses or by their own statements, the Court would be in a better position to judge whether the appellants were justified in causing the death of the deceased in the exercise of the right of private defence. We do hot think that the appellants were in the circumstances justified in causing the death of the deceased in the exercise of their right of private defence.
6. As regards the 1st accused we are not satisfied on the evidence that he actually held the deceased and asked the 2nd appellant to stab him with a knife. The 1st appellant might have been present at the time of the occurrence but from the fact that he was not in any way injured it cannot be said that he was in the thick of the fight. We give him the benefit of the doubt, quash his conviction and direct his release.
7. As regards the 2nd appellant, the evidence is clear that he used his knife on the deceased and caused his death. Mr. Jagannadha Doss tried to make out that the wounds on the deceased were caused accidentally during the fight. But from the nature of the injuries it cannot be said that any of the prosecution witnesses caused the injuries owing to some accident when they were fighting with their opponents. Considering all the circumstances of the case, and seeing that both the parties were indulging in a free fight, we do not think that the 2nd appellant deserves a severe sentence. We therefore, confirm his conviction but reduce the sentence to six. months' rigorous imprisonment.
8. In this case, we must observe that the conduct of the Village Munsif was not satisfactory. When Accused No. 1 went and told him that the Sioloes had beaten him and when he, the Village Munsif, saw the injuries on Accused Nos. 2, 4 and 5 it was his duty to have taken a complaint and forwarded to the authorties. His conduct in this matter is open to grave censure.
9. The Police should have charge-sheeted the prosecution party for rioting. It was not settled at the time as to who was the owner of the plot in dispute. The Magistrate intimated that he would go to the place and make inquiries. No doubt, the Village Munsif now says that the prosecution party was in possession of the disputed plot. When there was a dispute as to the possession of the plot and when a fight took place with regard to that it was the duty of the police to have charge-sheeted the prosecution party for rioting.
10. We have drawn the attention of the Sessions Judge in more cases than one that when a person is present and abets another to commit an offence Section 114 Indian Penal Code, is not applicable to the case. When a person who abets the commission of an offence is present and helps in the commission of the offence ha is guilty of the offence and not merely of abetment except in a few cases like rape or bigamy where the person committing the offence alone can be guilty of the offence. Section 114 applies to a case where a person abets the commission of an offence some time before it takes place and happens to be present at the time when the offence is committed, and is not applicable to a case where the abetment is at the time when the offence takes place and the abettor helps in the commission.