Back
2006 Supreme(Cal) 740
High Court Of Calcutta
Before Pravendu Narayan Sinha, Partha Sakha Datta, JJ.
ANANTA DEB SINGHA MAHAPATRA - Appellant
Versus
STATE OF WEST BENGAL - Respondent
C. R. A. 370 Of 1998
Decided On : 11/28/2006
ABHISHEK SINHA, JHARNA BISVAS, JOYMALYA BAGCHI, SEKHAR BASU, SWAPAN KUMAR MALLICK
The right of private defense is not available to a co-sharer in respect of a joint property unless there is a partition by metes and bounds between the co-sharers.
Headnote:
The appellants were convicted for causing death of the victim during an unlawful assembly. The deceased and the appellants were co-sharers in a disputed plot of land. The appellants claimed right of private defense of property and person. The court held that the appellants were not entitled to exercise the right of private defense and exceeded the right if they had any. The court relied on medical evidence to establish the nature and extent of injuries sustained by the victim and the appellants.
Fact of the Case:
The appellants were convicted for causing death of the victim during an unlawful assembly. The deceased and the appellants were co-sharers in a disputed plot of land. The appellants claimed right of private defense of property and person. The prosecution examined 16 witnesses, including eyewitnesses, doctors, and police officers.
Finding of the Court:
The court found that the appellants were not entitled to exercise the right of private defense and exceeded the right if they had any. The court relied on medical evidence to establish the nature and extent of injuries sustained by the victim and the appellants.
Issues: 1. Whether the appellants were entitled to exercise the right of private defense? 2. Whether the appellants exceeded the right of private defense?
Ratio Decidendi: 1. The court held that the appellants were not entitled to exercise the right of private defense as they were co-sharers in the disputed plot of land and there was no evidence of partition. 2. The court held that the appellants exceeded the right of private defense as the injuries sustained by the victim were disproportionate to the threat posed by the victim.
Final Decision: The appeal was dismissed, and the appellants were directed to surrender within 30 days to serve out their sentences.
( 1 ) THIS appeal by the appellants is directed against the judgment and order of conviction passed by the learned Additional Sessions Judge, 2nd court, Bankura in Sessions Trial No, 1 (7)1993 (Sessions Case No. 3 (8)1992 ). The appellants 1 to 4 were sentenced to suffer rigorous imprisonment for eight years each and to pay a fine of Rs. 1,000/-each in default to suffer further R. I. for one year each for the offence under Section 304 part II read with Section 149 of the Indian Penal Code (in short I. P. C. ). Appellants 1 and 2 were also sentenced with appellant No. 5 to suffer imprisonment for six months and to pay a fine of Rs. 2007- each i. d. to suffer imprisonment for two months for the offence under Section 323 read with Section 149 of I. P. C. , and hence this appeal.
( 2 ) THE prosecution case in a nutshell, is that, on 13. 9. 90 at about 2. 30 P. M. the appellants accompanied by 15 others as named in the FIR started cutting paddy from the land of informant Niranjan Singha Mahapatra (P. W. 2)in plot No. 122/470 of mouza Dakshinbaid within P. S. Khatra. Seeing the matter madhusudan Singha Mahapatra (deceased) reached there and raised protest, and over this, the accused persons assaulted on the head of the deceased with lathi and also cut the fingers of hands of deceased with sharp sickle. Hearing the alarm raised by the deceased, P. W. 2 and his mother Monorama singha Mahapatra (P. W. 4) reached there, but the accused persons also assaulted P. W. 2 and P. W. 4 and in their presence gave further blow on the head of deceased Madhusudan Singha Mahapatra with sickle. Madhusudan singha Mahapatra fell down on the land and thereafter, P. W. 2 with the help of the other villagers brought his father and mother to the police station. The police officer on duty told them to go to the Khatra Hospital and as instructed they came to the Khatra PHC. After primary treatment the doctor of the said phc sent all the injured persons to the Bankura Medical College and Hospital where parents of P. W. 2 were admitted and P. W. 2 was discharged after primary treatment. P. W. 2 sent the written complaint/fir (ext. 2) through his brother-in-law Uwijapada Kar (P. W. 5) to the Khatra Police station and on the basis of such written complaint Khatra P. S. Case No. 40 dated 13. 9. 90 under Sections 147/148/149/448/324/325/379 of the I. P. C. was started against the accused persons. The injured Madhusudan Singha Mahapatra succumbed to his injuries on 14. 9. 90, and thereafter, Section 304 of the I. P. C. was added and after completing investigation the Investigating Officer (in short I. O.) submitted charge-sheet against the accused persons under Sections 147/148/149/447/ 379/324/325 and 304 of the I. P. C. The trial that followed ended in the conviction and sentence of the appellants as mentioned above.
( 3 ) IN order to prove its case the prosecution examined in all 16 witnesses namely, P. W. 1 Prasanta Kumar Singha Mahapatra, P. W. 2 Niranjan singha Mahapatra (informant and son of deceased), P. W. 3 Ranjit Singha mahapatra, P. W. 4 Smt. Manorama Singha Mahapatra (wife of deceased), p. W. 5 Dwijapada Kar, P. W. 6 Hirarani Singha Mahapatra (wife of P. W. 2), p. W. 7 Ajit Kumar Roy, P. W. 8 Anil Ranjan Dey, P. W. 9 Dr. Amiya Kumar mondal, P. W. 10 Nalinikanta Singha Mahapatra, P. W. 11 Prabir Singha mahapatra, P. W. 12 Kartick Muhuri, P. W. 13 Nimai Singha Roy, P. W. 14 ardhendu Sekhar Patra, P. W. 15 Dr. G. N. . De (autopsy surgeon) and P. W. 16 prithwish Chatterjee (I. O. ).
( 4 ) OUT of the aforementioned 16 witnesses P. W. 1, P. W. 3, P. W. 10 and P. W. 11 were declared hostile witnesses. We shall consider their evidence later on if we find anything worth mentioning from their evidence. P. W. 7 is a formal witness who was attached to Bankura Medical College and Hospital as ward Master on 13. 9. 90 and sent information to Bankura police station on 14. 9. 90 relating to death of Madhusudan Singha Mahapatra. P. W. 9 is the doctor of Kh
