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1981 Supreme(Ori) 163
IN THE HIGH COURT OF ORISSA
P.K. Mohanti, B.K. Behera, JJ.
LAXMINARAYAN HANSDA AND OTHERS - APPELLANT
Versus
STATE OF ORISSA - RESPONDENT
Criminal Appeal No. 191 of 1978
Decided On : 03-11-1981
P.K. Dhal, for the Appellant; Additional Government Advocate, for the Respondent
A person is entitled to exercise the right of private defence of person and property, and is not liable for any offence committed in the exercise of that right, provided that the force used is not excessive.
Headnote:
CRIMINAL APPEAL - RIGHT OF PRIVATE DEFENCE - POSSESSION OF LAND - BURDEN OF PROOF - EVIDENCE - APPRECIATION - RIGHT OF PRIVATE DEFENCE OF PERSON AND PROPERTY - EXCESSIVE USE OF FORCE - SECTION 99, INDIAN PENAL CODE.
Fact of the Case:
The appellants were convicted of causing the death of one Sukram Mahanta and causing hurt to one Maheswar Mahanta. The prosecution case was that the appellants, along with seven others, formed an unlawful assembly with the common object of causing the death of Sukram Mahanta and caused his death in prosecution of their common object. Appellant No. 1 was further charged with voluntarily causing hurt to Maheswar Mahanta.
Finding of the Court:
The court found that the appellants were in possession of the land in question and had raised the paddy crops during the year of occurrence. The prosecution party, being armed with lathis and bahungis, trespassed on the land on the date of occurrence and attempted to commit theft of the paddy crops. The appellants, therefore, would undoubtedly have a right to defend their possession and property in exercise of their right of private defence.
Issues: 1. Whether the appellants were in possession of the land in question? 2. Whether the prosecution party had a right to defend their possession and property in exercise of their right of private defence? 3. Whether the appellants exceeded their right of private defence?
Ratio Decidendi: 1. The court held that the appellants were in possession of the land in question and had raised the paddy crops during the year of occurrence. The court relied on the evidence of the appellants and their witnesses, as well as the circumstances and probabilities of the case. 2. The court held that the prosecution party, being armed with lathis and bahungis, trespassed on the land on the date of occurrence and attempted to commit theft of the paddy crops. The appellants, therefore, would undoubtedly have a right to defend their possession and property in exercise of their right of private defence. 3. The court held that the appellants did not exceed their right of private defence. The court noted that the appellants were first assaulted by the prosecution party, and that the injuries inflicted on the deceased and P.W. 5 were in response to this assault. The court also noted that the appellants could not have had recourse to the protection of public authorities within the meaning of Section 99, Indian Penal Code.
Final Decision: The court allowed the appeal and acquitted all the appellants of the charges levelled against them.
JUDGMENT :
P.K. Mohanti, J. - The three Appellants along with seven others stood charged u/s 148, Indian Penal Code for having formed themselves into an unlawful assembly with the common object of causing the death of one Sukram Mahanta and also u/s 302/149, Indian Penal Code for having caused the death of the said Sukram Mahanta in prosecution of their common object. Appellant No. 1 Laxminarayan Hansda was further charged u/s 323, Indian Penal Code for voluntarily causing hurt to P.W. 5 Maheswar Mahanta. After trial, Appellant No. 2 Simal alias Sayal Hansda and Appellant No. 3 Sagram alias Sagram Hansda were convicted u/s 302 read with Section 34, Indian Penal Code and sentenced to undergo rigorous imprisonment for life. Appellant No. 1 Laxminarayan Hansda was convicted u/s 323, Indian Penal Code and sentenced to undergo rigorous imprisonment for one month. Other accused persons were acquitted of the charges framed against them.
2. Prosecution case was that on 17-11-1976 at about 1.30 p.m. while P.W. 5 Maheswar Mahanta and his brother including Sukram Mahanta (the deceased) were cutting paddy from a piece of land in their cultivating possession and stacking the same on the land of one Mohan Singh all the accused persons being armed with deadly weapons came in a body and started loading the stacked paddy sheaves in a bullock cart brought by them for the purpose. P.W. 5 rushed to village Ragdha and called the Punch members. While returning, he found from a distance that the accused persons were yoking their bullocks for driving the bullock cart. He went running, stood in front of the cart and asked the accused persons to wait till the arrival of the Punch members. At this, Appellant No. 1 Laxminarayan got annoyed and assaulted P.W. 5 on his head by means of a lathi as a result of which he fell down. Immediately after the fall, he stood up, snatched away the lathi from the hand of Appellant No. 1 and dealt a blow on his head as a result of which he fell down. Appellants 2 and 3 assaulted the deceased on his head by means of lathis as a result of which he fell down with bleeding injuries on his head. Budhuram Maharita, who is a brother of P.W. 5, assaulted on the head of Appellant No. 3 Sagram with a Bahungi. In the mean-time, the Punch members arrived at the spot and one of them snatched away the weapons from the Appellants, and made arrangement to send P.W. 5 and the deceased to the Primary Health Centre for treatment. The weapons, the paddy sheaves and the bullock cart were kept in the custody of one of the Punch members. Durjyodhan Mahanta who is one of the brothers of P.W. 5 went to Betnoti Police Station and lodged F.I.R. (Ext. 8) and investigation was taken up. The Officer-in-charge of the Police Station visited the Primary Health Centre and found the deceased and P.W. 5 lying injured. He issued requisitions for their medical examination and then visited the spot. He found injuries on Appellants 1 and 3 and sent them for medical examination. The deceased was removed to Baripada Hospital where he died. The Investigation Officer went to Baripada Hospital, held inquest over the dead body and arranged for its post mortem examination, Appellants No. 2 and 3 were arrested on 26-11-1976 and Appellant No. 1 on 1-12-1976. After due investigation, charge-sheet was submitted against all the accused persons.
3. The Appellants denied the charge and pleaded innocence.
Appellant No. 1 stated that he was first assaulted by P.W. 5 on his head and Appellant Nos. 2 and 3 were assaulted by Budhia Mahanta. He contended that he was in cultivating possession of the land in question having purchased the same from P.W. 5 and he had grown paddy on the same during the year of occurrence. According to him, the deceased, P.W. 5 and their brothers along with three labourers, cut paddy from the land and stocked the paddy sheaves on the land of Mohan Singh. He went with a cart to the land of Mohan Singh with his son Simal (Appellant No. 2). While they were l
