Back
1982 Supreme(Ori) 22
ORISSA HIGH COURT
P. K. MOHANTI AND B. K. BEHERA, JJ.
ANAM PRADHAN AND OTHERS
VERSUS
THE STATE
Criminal Appeals Nos. 231, 233 and 234 of 1978,
Decided on : 9 -2 -1982.
The right of private defense of property and person is a valid defense to a charge of murder or causing grievous or simple hurt, but it must be shown that the accused apprehended reasonably that death or grievous hurt would be the consequence if they did not exercise the right of private defense.
Headnote:
CRIMINAL APPEAL - RIOTING - MURDER - CAUSING GRIEVOUS AND SIMPLE HURT - COMMON OBJECT - UNLAWFUL ASSEMBLY - RIGHT OF PRIVATE DEFENCE - SECTION 302/114, 302/34, 302/149, 148, 326, 324, 323 OF IPC - SECTION 120B OF IPC.
Fact of the Case:
The appellants were convicted for rioting, murder, and causing grievous and simple hurt. The prosecution alleged that the appellants and other accused persons entered into a conspiracy to forcibly cut the paddy crops raised by the complainant, even at the cost of the lives of persons who might oppose them. The appellants and their companions armed with deadly weapons, entered the land and assaulted the complainant and his laborers, resulting in the death of one Dibakar Rout and causing injuries to several others. The appellants pleaded not guilty and claimed alibi.
Finding of the Court:
The court held that the evidence of the eyewitnesses was partisan and unreliable, and that the prosecution had failed to prove the charges of conspiracy and abetment against the appellants. The court also held that the appellants were not members of an unlawful assembly and did not share the common object to commit murder or cause grievous or simple hurt. The court further held that the appellants had the right of private defense of property and person, and that their actions were not protected by law. However, the court found that the appellant Pari Sahu was guilty of the substantive offense of murder and convicted him under Section 302 of the IPC.
Issues: 1. Whether the prosecution had proved the charges of conspiracy and abetment against the appellants? 2. Whether the appellants were members of an unlawful assembly and shared the common object to commit murder or cause grievous or simple hurt? 3. Whether the appellants had the right of private defense of property and person? 4. Whether the appellants' actions were protected by law? 5. Whether the appellant Pari Sahu was guilty of the substantive offense of murder?
Ratio Decidendi: 1. The court held that the prosecution had failed to prove the charges of conspiracy and abetment against the appellants because the first information report did not allege any such involvement, and the evidence of the prosecution witnesses was inconsistent and unreliable. 2. The court held that the appellants were not members of an unlawful assembly and did not share the common object to commit murder or cause grievous or simple hurt because the evidence did not show that they had the common object to commit any offense, and that their actions were in exercise of the right of private defense of property and person. 3. The court held that the appellants had the right of private defense of property and person because they were in possession of the land in question and had the right to defend their possession against the complainant's trespass and theft. 4. The court held that the appellants' actions were not protected by law because they had not apprehended reasonably that death or grievous hurt would be the consequence if they did not exercise the right of private defense. 5. The court held that the appellant Pari Sahu was guilty of the substantive offense of murder because he had stabbed the deceased on his chest with a Bhala, causing an injury that was sufficient in the ordinary course of nature to cause death.
Final Decision: The court allowed the appeals of the appellants in Criminal Appeals Nos. 231 and 234 of 1978 and set aside the orders of conviction and sentences passed against them. The court allowed the appeal of the appellant in Criminal Appeal No. 233 of 1978 in part, set aside the order of conviction and sentences passed against the appellants Kedar Ghadei and Sananda Padhan, and convicted the appellant Pari Sahu under Section 302 of the IPC and sentenced him to undergo imprisonment for life.
JUDGEMENT
B. K. Behera, J. :- The three appeals arising out of the same judgement and order passed by Mr. J. Tyagi, Additional Sessions Judge, Cuttack, have been heard together and this judgement shall govern the three appeals. The appellants in the three Criminal Appeals along with fifteen other accused persons stood trial for having committed the offence of rioting being armed with deadly weapons after entering into a conspiracy and for having committed the murder of Dibakar Rout and for causing grievous and simple hurt to some members of the prosecution party. The appellants Brundaban Muduli and Punananda Sahu along with the co-accused Ramakanta Naik (acquitted), stood charged under S.302 read with S.114 of the Penal Code (hereinafter referred to as the Code), the appellants Kedar Ghadei, Pari Sahu son of Dinabandhu and Sananda Padhan along with the co-accused Anam Padhan stood charged under S.302 read with S.34 of the Code for committing the murder of Dibakar Rout at Trilochanpur and the appellants in Criminal Appeal No. 231 of 1978 along with sixteen other co-accused persons including the two appellants in Criminal Appeal No. 234 of 1978 stood charged under S.302 read with S.149 of the Code for that murder. Charges had also been framed against some of the appellants and other accused persons under Ss.326, 336 read with Secs. 149, 326, 324 and 323 of the Code for causing grievous and simple hurt to some members of the prosecution party.
2. We would now proceed to state the case of the prosecution. Daitari wain (not examined) of Nabadia had 1.53 acres of land in village Trilochanpur of which 1.07 acres were situated to the western side at a lower level of the Bhittarjena Muth. Bhagaban Mohanty (P.W. 3) had been cultivating all the lands of Daitari Swain in this village for about ten years prior to the occurrence as a bhag tenant and had, along with his brother Basudev Mohanty (P.W. 5), raised paddy crops in the year 1976. On 23-11-1976, the appellants Punananda Sahu, Nilamani Padhan and Sananda Padhan besides Ananda Padhan removed paddy from a portion of the said land. On the day following, the appellant Brundaban Muduli, co-accused Ramakanta Naik (acquitted) and Maheswar Mohapatra and Daitari Padhan who were said to be leaders of the Communist Party in that area, were seen proceeding towards village Damapada and at the thrashing floor of the co-accused Bina Padhan (acquitted); the appellants and the other co-accused persons held a meeting and decided to forcibly cut the paddy crops raised by Bhagaban Mohanty (P.W. 3) even at the cost of the lives of persons who might oppose them.
Bhagaban Mohanty (P.W. 3) came to know about this and made arrangements to harvest the paddy crops before the appellants and their companions could cut and take away the crops. In the morning of the 25th Nov., 1976, Bhagaban Mohanty (P.W. 3) along with his brother Basudev Mohanty (P.W. 5), Dibakar Rout (deceased), Babaji Gochhayat (P.W. 6), Chandramani Swain (P.W. 8), Prabhakar Rout (P.W. 9), Shyamsundar Behera (P.W. 13), Rajib Gochhayat (P.W. 15), Mandar Swain and some others went to the land and began to harvest the paddy crops, After some time, about forty persons including the appellants and the other accused persons who stood trial came in a body being armed with deadly weapons, such as, swords, Bhalas, Tentas and lathis, after breaking the fence demarcating the Muth from the land and under the instigation of the appellants Brundaban Muduli and Punananda Sahu, besides some others including Ramakanta Naik (acquitted) and Maheshwar Mohapatra (not a co-accused) to bring away the paddy after cutting the heads or sacrificing their heads for the purpose, the other appellants besides the other co-accused persons rushed to the land and while the prosecution party including Bhagaban Mohanty (P.W. 3) and the labourers were leaving the place the appellants Kedar Ghadei, Pari Sahu (son of Dinabandhu) and Sananda besides Ananda Padhan (co-accused person) ass
