The right of private defense may absolve liability, particularly when injuries to the accused are unexplained, indicating a critical deficiency in the prosecution's case.

Judgment :

S.S. Mishra, J.

The present Criminal Appeal is directed against the judgment and order dated 30.11.1999 passed by the leaned Additional Sessions Judge, Sonepur, in Sessions Case No.36/30 of 1999 (arising out of G.R. Case No.12 of 1999), whereby the appellant was convicted under Section 326 of I.P.C. and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,000/-, in default to undergo further R.I. for six months.

2. Heard Mr. D.P. Dhal, learned Senior Counsel, for the appellant and Smt. Siva Mohanty, learned Additional Standing Counsel for the State.

3. The prosecution case in brief is that on the morning of 12.01.1999, the informant (P.W.1) and his labourers (P.W.2- Lalit Kheti and one Asharam Mendli) were ploughing a plot of land (case land). A dispute arose when Dingar Kheti (father of the appellant) allegedly entered the land, unyoked the bullocks and raised objection. After an initial altercation, Dingar left the field. He is said to have returned shortly thereafter, accompanied by his son, the appellant, who was armed with a spear (barchi). The appellant suddenly attacked P.W.2 when he was ploughing and inflicted a deep penetrating wound on the right side of his chest. P.W.2 was treated as indoor patient at VSS Medical College, Burla. F.I.R. (Ext.1) was lodged shortly after the occurrence, naming the appellant.

4. The Investigating Officer seized the barchi (M.O.I.) and ultimately arrested the appellant. The doctor (P.W.7) produced injury report Ext. A recording of grievous injury to P.W.2 and also injuries on Dingar Kheti (father of the accused).

5. The prosecution examined P.Ws.1, 2, and 4 as eye-witnesses to the occurrence. The defence case was that the case land was in possession of the father of the accused, that the informant and his men had come to take forcible possession and had assaulted the father, and that the injuries on the father and on the parties were the result of that exchange. A counter F.I.R. was placed on the file and is noted in the record. The appellant gave his statement under Section 313 Cr.P.C. and denied the charge. D.W.1 Rohita Deep was examined for the defence.

6. The learned trial Court while rejecting the charge under Section 307 of I.P.C. on the ground that the injury, though grievous, was not opined by the doctor to be sufficient in the ordinary course of nature to cause death, the Court held the appellant guilty under Section 326 I.P.C. for voluntarily causing grievous hurt by means of a sharp weapon. Considering the seriousness of the assault with a spear and the nature of injury sustained by P.W.2, but also taking into account the circumstances of the case, the trial Court sentenced the appellant to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,000/-, in default to suffer further rigorous imprisonment for six months, and declined to extend the benefit of the Probation of Offenders Act. The relevant portion of the aforesaid judgment is extracted herein below for convenience ready:-

“xxx xxx….In other words, the evidence of the injured p.w.2 has put more credence to the prosecution version. The evidence of the injured witness despite some minor discrepancies can be the best piece of evidence and the reliance can be placed on his version even if he is belonged to a rival group and was interested. Conviction can be sustained on his evidence for the simple reason that the evidence of the injured cannot be discarded for his interestedness. In such circumstances, the non-examination of Asharam Mendli and the boundary tenants, namely, Rohi