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1964 Supreme(Ori) 120
HIGH COURT OF ORISSA
G. K. Misra, J.
NAKULA BARIK - Appellant
Versus
STATE - Respondent
Criminal Appeal 46 Of 1964
Decided On : DECEMBER 23, 1964
Asok Das, B.RATH, L.RATH
There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done by a public servant acting in good faith under colour of his office, though that act may not be strictly justifiable by law.
Headnote:
CRIMINAL LAW - SECTIONS 332 AND 333, I. P. C. - OFFENCES UNDER - INGREDIENTS - RIGHT OF PRIVATE DEFENCE OF PROPERTY AND PERSON - SECTION 99, I. P. C. - APPLICABILITY.
Fact of the Case:
The appellants were convicted of causing hurt and grievous hurt to a forest guard while he was discharging his duty. The forest guard had seized bundles of firewood from the appellants, who claimed that they had the right to remove the firewood from a Khesra forest.
Finding of the Court:
The court held that the forest guard was acting in good faith in discharge of his duties as a public servant and that the appellants had no right of private defence of property or person against his act. The court also held that the appellants were not entitled to remove the firewood from the protected forest without a permit.
Issues: 1. Whether the appellants caused hurt and grievous hurt to the forest guard in the discharge of his duty as a public servant? 2. Whether the appellants had the right of private defence of property and person against the forest guard's act?
Ratio Decidendi: 1. The court held that the prosecution had proved that the appellants caused hurt and grievous hurt to the forest guard while he was discharging his duty as a public servant. The court relied on the evidence of the forest guard and the doctor who examined him, as well as the seizure list prepared by the forest guard. 2. The court held that the appellants did not have the right of private defence of property or person against the forest guard's act. The court relied on Section 99, I. P. C., which lays down that there is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done by a public servant acting in good faith under colour of his office, though that act may not be strictly justifiable by law.
Final Decision: The court dismissed the appeal.
G. K. MISRA, J.
( 1 ) OF the six accused persons three were acquitted. Bula Sahu (appellant 3) has been convicted under Section 333, I P C. and sentenced to rigorous imprisonment for three years and to pay a fine of Rs 100 in default to undergo R. I. for a term of six months. Nakula (appellant 1) and Narasingha Parida (appellant 2) have been convicted under Section 332, I. P. C. and each has been sentenced to rigorous imprisonment for three months. Prosecution case is as follows: In the early morning of 22-9-63 Abdul Manan (P. W. . 1), the Forest Guard of Kothagada Beat, went to Sulia Reserve Forest in the ex-State of Ranpur on patrol duty in his uniform in the company of Hari Fora (P. W. . 2) and Antara Sahu (P. W. . 8 ). At bankanalia Khula inside the reserved Forest, the 6 accused persons were tying into bundles pieces of wood already cut by them from that very place. P. W. . 1 seized the 6 Katuris (M Os. I, to I e ). They saw the trees which had been cut, the accused were asked to carry the nine bundles of fire-wood in 3 Bhara and 3 head-loads. All of them came to a place called Bhartia Amba within the Demarcated Protected Forest. The seizure list (Ext. 1) both in respect of the bundles of firewood and the Kataris was prepared at that spot. The accused refused to sign the seizure list. P. Ws. 2 and 3 attested it. P. W. 1 heard some sound of human voice from a distance and asked P. Ws. 2 and 3 to go and see why the people had come inside the jungle. When P. Ws. 2 and 3 went to some distance, Bula Sahu gave a blow with the Rollabadi (M. O. II) belonging to P. W. 1 on the back of his head. P. W. 1 cried out. Bula gave a second blow on the left side forehead of P. W. . 1. When he was going to give the 3rd blow on the fore-head, P. W. 1 tried to prevent it with his left palm. The blow fell on the fore and middle fingers of the left hand injuring the fingers. He gave another blow on the right side of the head Nakula barik and Narasingha Parida assaulted P. W. 1 on the back with two wooden sticks. P. W. 1 fell down unconscious. On seeing P. Ws. 2 and 3 coming back the accused fled away P. Ws. 2 and 3 pursued them for some distance without any success to catch them The appellants advanced a plea of complete denial. They denied going inside the forest and assaulting P. W. 1 The learned Sessions Judge on a thorough discussion of the evidence accepted the prosecution version to be true.
( 2 ) MR. Asok Das, though did not concede, did not seriously assail the findings of assault by the appellants as narrated by the prosecution. The evidence is also beyond reproach. P. Ws. 2 and 3 testify how P. W. 1 was mercilessly attacked. Nothing substantial has been urged to discard their evidence. The evidence of the doctor (P. W. 7) fully corroborates the prosecution version. The following injuries were found by him on the body of P. W. . I: 1. Lacerated wound 4" X 1/2" X bone deep on the forehead. 2. Lacerated wound 21/2" X 1/2" X bone deep on the occipital bone right side. 3. Lacerated wound 2" X 1/2" X bone deep on the left side of the lamdao. 4. Tip of left middle finger 1st phalenx was hanging with skin. The bone portion was crushed and the injury at the base was lacerated. 5. Lacerated wound 1/4" X 1/4' X /6" on the lateral side of the left index finger. 6. Bruise 5" X 11/2" on the left side of the back beginning from the superior border of the right scapula towards the inferior angle of the left scapula. 7. Abrasion 11/2" X 1" on the left shoulder 2" below the left acromium process. 8. Abrasion 1/2" X 1/2" on the root of the back of the neck. I am satisfied that P. W. . 1's evidence regarding the assault on him by the appellants is fully corroborated by the evidence of the Doctor and P. Ws. 2 and 3.
( 3 ) THERE is no difference in the ingredients in Sections 332 and 333, I P C. excepting the elements of hurt and grievous hurt. Section 332 lays down:--
"whoever voluntarily causes hurt to any person being a public servant in the discharg
