Research › Search › Judgment

Orissa High Court · body

2018 DIGILAW 426 (ORI)

Pitamber Mohanta v. State of Orissa

2018-04-18

K.R.MOHAPATRA, SANJU PANDA

body2018
JUDGMENT S.PANDA,J. - This Criminal appeal is directed against the judgment dated 03.05.1999 passed by the learned Addl. District & Sessions Judge, Rairangpur, in S.T. No.11.98 of 1998 in convicting the present appellants for commission of offence under Sections 148/302/323 read with Section 149 I.P.C. and sentencing each of the appellant to undergo for imprisonment of life under Section 302 I.P.C. and to undergo R.I. for two months under Section 148/323 I.P.C. on each count. It was also directed that the substantive sentences are to run concurrently. 2. The prosecution case as reveals in brief from the FIR story is that on 09.06.1997, the informant Sarbeswar Mohanta (P.W.1), his son Thakurdas Mohanta (P.W.2), Paresh Mohanta (P.W.4), Umesh Mohanta, the deceased land his labourer Arup Sardar went to plough the disputed land situated at village Bhursa. After reaching there when they were preparing to plough the and, accused Pitambar (appellant No.1) and his two sons, Sushil (appellant No.3) and Sumanta (appellant No.2) along with 6 to 8 persons being armed with lathis and Thengas assaulted the son and brother-in-law of the informant in the field, as a result of which Umesh Mohanta died and Thakurdas was seriously injured. The accused persons also assaulted the informant by means of a lathi on his leg and when they chased to assault further, the informant fled away and reported the matter at Bahalda Police Station. 3. The O.I.C., Bahalda Police Station registered Bahalda P.S. Case No.34/97 and took up the investigation. He went to the spot, issued injury requisition in respect of the injured, held inquest over the dead body and forwarded the same for post-mortem examination. He seized some Hawai chappals, plough weapon, wood on handle yoke, bamboo stick and also seized the blood stained earth and blood stained wearing apparels of the deceased. After completion of the investigation charge sheet was submitted against the appellants along with some others. 4. The plea of the appellants was that there was dispute over the land, which was claimed to be of the accused. When the informant, deceased along with others were ploughing the land, appellants 1 to 3 obstructed them. At that time, P.W. 4 gave a cycle chain blow on the head of appellant No.3. Thereafter when appellant No.1 and 2 intervened into the matter, the deceased gave a spade blow to appellant No.2. When the informant, deceased along with others were ploughing the land, appellants 1 to 3 obstructed them. At that time, P.W. 4 gave a cycle chain blow on the head of appellant No.3. Thereafter when appellant No.1 and 2 intervened into the matter, the deceased gave a spade blow to appellant No.2. Accordingly there was a tussle between appellant No.2 and the deceased by means of spade. Accordingly they took the plea of right of private defence. Bahalda P.S. Case No.35 of 1997 is the counter case and the said FIR was marked as Ext. D. On police requisition under Ext.A/2 the injured was medically examined and Ext. B is the query regarding weapon of offence. 5. In order to bring home the charge, during trial the prosecution had examined as many as 16 witnesses, which includes P.W.1 the informant, P.Ws. 2,4 and 7 who are the injured eye witness to the occurrence, P.W.3, the post occurrence witness, before whom the deceased narrated the assault, P.W. 16-the Investigating Officer, P.W. 11-the Doctor, who conducted post-mortem over the dead body and P.Ws. 12 to 14 are the Doctors who examined the injured persons. The Prosecution also exhibited many documents including the FIR under Ext.1 and Post Mortem Report under Ext.6. On the other hand the defence had examined two witnesses, which includes one Dandu Majhi (D.W.1), who stated that appellant No.1 was possessing the disputed land since long and appellant No.3 was examined himself as D.W. 2. Defence had also exhibited many documents, which includes medical report of appellant No.3 and the copy of the F.I.R. in the counter case. 6. The learned Addl. Sessions Judge, came to a conclusion that there was an unlawful assembly with a common object and being a member of an unlawful assembly the accused persons assaulted the prosecution witnesses by which Umesh died. So it is clear that there was pre-arranged plan to achieve the commonly intended object. Accordingly the Court below held the present appellants guilty for commission of the offence under Sections 148/302/323/149 IPC and passed the sentence as indicated above. 7. Learned Counsel for the appellant submitted that the impugned judgment is against the weight of evidence on record. The Court below did not discuss about the injuries sustained by the accused persons in their vital parts of the body. 7. Learned Counsel for the appellant submitted that the impugned judgment is against the weight of evidence on record. The Court below did not discuss about the injuries sustained by the accused persons in their vital parts of the body. According to him law in this regard is very clear that the prosecution is bound to explain the injuries sustained by the injured if the same caused during the course of same transaction. The Court below should have taken into consideration the rights exercised by the appellant, i.e. the right of private defence to defend the property and body. The Court below also did not discuss about the counter case filed by the appellants. Therefore, according to him, the impugned judgment of conviction and order of sentence are unsustainable and liable to be interfered with. 8. Per contra, the learned Additional Standing Counsel submitted that the Court below had arrived at the finding basing on the evidence of the eye witness to the occurrence and also the Post Mortem Report. He further submitted that the statement made in the FIR and as well as the evidences of P.Ws. 1,2, 4 & 7 corroborates with each other and further the same also corroborates with the Post-Mortem Report. Thus, the impugned judgment of conviction and order of sentence warrant no interference in this appeal. This criminal appeal, therefore, being devoid of merit, is liable to be dismissed. 9. Perused the L.C.R. and went through the evidence on record carefully. The informant-P.W. 1 in his examination-in-chief stated that on 09.06.1997, he along with P.W. 2, P.W.4 the deceased and P.W. 7 had been to cultivate the land. While they were so going, appellants 1 and 3 assaulted his leg. Thereafter appellant No.3 gave lathi blow on P.W.2. Others appellants assaulted by means of lathis on his son. Appellant No.3 also assaulted P.W. 4 by means of lathi. P.W. 2 assaulted the deceased by sword. Ramakanta with Gachia, Jainath by means of iron rod, Pitambar, Sushil, Hundra assaulted by means of lathis to the deceased. Therefore, he sustained injuries on his body. They therefore, came to the Police Station along with P.W. 4 and reported the matter to the Police. 10. P.W. 2 assaulted the deceased by sword. Ramakanta with Gachia, Jainath by means of iron rod, Pitambar, Sushil, Hundra assaulted by means of lathis to the deceased. Therefore, he sustained injuries on his body. They therefore, came to the Police Station along with P.W. 4 and reported the matter to the Police. 10. P.W. 2, who is the injured eye witness to the occurrence in his examination-in-chief had stated that while they were at a little bit distance from the disputed land, suddenly his father, P.W.1 was assaulted and when P.W. 1 wanted to go, at that time, the accused persons assaulted him. Seeing the assault, when P.W. 4 and Umesh intervened the matter, P.W. 4 was assaulted by appellant No.2 on lathi and other accused persons also assaulted P.W. 4. However, P.W. 4 went to the informant P.W. 1 sustaining injury. Thereafter, all the appellants assaulted Umesh holding lathis. Umesh was lying with injury. Therefore, his wife and daughter went to the spot. The deceased talked with his wife. The wife of Umesh went to bring vehicle. Thereafter Police Vehicle came and they were shifted to the hospital. 11. P.W. 3 is the son of the informamnt-P.W.1. He went to the disputed land by taking paddy at about 8.00 A.M. P.W. 2 asked him water. Thereafter he gave water to deceased and P.W. 2. He found the deceased sustained bleeding injury on his head and leg. In cross examination he has specifically stated except him no other witnesses were present after the occurrence at the spot. At first he went to Umesh, when he died, he went to P.W. 2. He found the deceased unconscious and his respiration was not going and coming. When he raised the deceased, he told him that he will not survive and so saying he died. 12. P.W. 6 is the wife of the deceased and she heard about the assault on the deceased from P.W. 4. Thereafter she went to the spot with her daughter and found the deceased had bleeding injury on his head, face and nose. She gave him water to drink. The deceased told her that he will not survive as because persons have assaulted him. Thereafter she had come back to the village for a vehicle. Thereafter she went to the spot with her daughter and found the deceased had bleeding injury on his head, face and nose. She gave him water to drink. The deceased told her that he will not survive as because persons have assaulted him. Thereafter she had come back to the village for a vehicle. In the cross-examination she has stated that she reached the spot at about 9.00 A.M. and found P.W. 3 was present at the spot. It was also specifically put to her that when she reached the spot the deceased died, he had not disclosed anything to her before his death. 13. It appears from the evidence of P.Ws. 3 and 6 that there are major discrepancies regarding the time they reached the spot and condition of deceased at the time the P.W. 3 reached the spot and died immediately. Thereafter the time when P.W. 6 reached the spot, disclosure of the names of the assailants by the deceased to P.W. 6. 14. P.W. 4 another injured eye-witness to the occurrence had corroborated the statement made by P.W. 1 and 2. He also narrated the manner of assault as has been stated by the said witnesses. 15. P.W. 11 is the Doctor who conducted post mortem over the dead body and according to him all the injuries were anti-mortem in nature and cause of death is due to intra cranial hemorrhage and shock. 16. P.W. 16, who is the I.O. of the case. He has deposed regarding the counter case bearing Bahalda P.S. Case No.35 of 1997, wherein he has submitted the charge sheet under Sections 147/148/447/323/149 IPC. He had forwarded the statements of P.Ws. 4 and 8 to the Court along with the accused persons on 10.06.1997, however, the statements of P.Ws.1, 2, 3 and 6 were placed before the Court on 14.08.1997, i.e. three months after the occurrence and as per the prosecution case, they are the eye witnesses to the occurrence. The object of enacting sections 167 and 172 of Cr.P.C. is to transmit the copy of the entries in the case diary relating to crime to the Magistrate upon which he can decide whether or not the detention of the accused person in custody should be authorized and also to enable him to form an opinion as to whether any further detention is necessary. The object of enacting this section is that the entries in the diary afford to the Magistrate information. By not complying with the said requirement, the Investigating Officers render that part of the section which requires the transmission of entries in the case diary otiose. Due to non-compliance of the said provision, it may reasonably be inferred that the entries in the case diary had not come into existence by that time. If the material witnesses were examined by that time and they had given him information consistent with the story put forward by the prosecution substantially available and the remand report was placed before the Magistrate for information regarding those facts without any addition or subtraction. 17. On going through the evidence of the witnesses we have to consider the following points: (i) Whether the appellants have committed the alleged crime being aggressor. (ii) Whether as per the F.I.R. story, the statements of the witnesses before the Police and the statement before the Court are consistent, trust-worthy and cogent to bring home the charge against the appellants. (iii) Whether it is obligatory on the part of the prosecution to explain the injuries sustained by the accused in course of occurrence. (iv) Whether the appellants are entitled to the right of private defence. (v) Whether the prosecution has proved the case beyond all reasonable doubt. Considering all the aspects it can be said that P.W. 4 assaulted the appellant No.3 by cycle chain. Such injuries cannot termed as minor injuries as lacerated wounds were there over the vital part of the body, i.e head. The doctor has opined that if the blow might have been in force, then there would have been death. In such situation the right of defence can be exercised by the accused persons to protect self and the property as P.Ws. 1,2,4,7 and deceased entered into the disputed land with intention to disposes the appellants and wanted to plough the land. On being resisted the occurrence took place. It cannot be said that the right of private defence exceeded to the extent of killing a person. In the case of Darshan Singh v. State of Punjab reported in (2010) 2 SCC 333 , the Apex Court considered the principles regarding right of private defence. (i) Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. In the case of Darshan Singh v. State of Punjab reported in (2010) 2 SCC 333 , the Apex Court considered the principles regarding right of private defence. (i) Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defence within certain reasonable limits. (ii) The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation. (iii) A mere reasonable apprehension is enough to put the right of self defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised. (iv) The right of private defence commences as soon as a reasonable apprehension arises and it is co-terminus with the duration of such apprehension. (v) It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude. (vi) In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property. (vii) It is well settled that even if the accused does not plead self defence, it is open to consider such a plea if the same arises from the material on record. (viii) The accused need not prove the existence of the right of private defence beyond reasonable doubt. (ix) The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence. (x) A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened. (x) A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened. In the case of Jai Dev and another v. State of Punjab reported in AIR 1963 SC 612 , it has been observed as follows : “Section 100 provides, inter alia, that the right of private defence of the body extends under the restrictions mentioned in S. 99, to the voluntary causing of death if the offence which occasions the exercise of the right be an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault. In other words, if the person claiming the right of private defence has to face assailants who can be reasonably apprehended to cause grievous hurt to him, it would be open to him to defend himself by causing the death of the assailant. In appreciating the validity of the appellants’ argument, it would be necessary to recall the basic assumptions underlying the law of self-defence. In a well-ordered civilised society it is generally assumed that the State would take care of the persons and properties of individual citizens and that normally it is the function of the State to afford protection to such persons and their properties. This however, does not mean that a person suddenly called upon to face an assault must run away and thus protect himself. He is entitled to resist the attack and defend himself. The same is the position if he has to meet an attack on his property. In other words, where an individual citizen or his property is faced with a danger and immediate aid from the State machinery is not readily available, the individual citizen is entitled to protect himself and his property. That being so, it is a necessary corollary to the doctrine of private defence that the violence which the citizen predefining himself or his property is entitled to use must not be unduly disproportionate to the injury which is to be averted or which is reasonably apprehended and should not exceed its legitimate purpose. The exercise of the right of private defence must never be vindictive or malicious.” 18. The exercise of the right of private defence must never be vindictive or malicious.” 18. Here in the present case, since the prosecution parties are aggressive and they assaulted the appellant No.3 on his head, the appellants are reasonable danger of losing their property and life and accordingly exercised the right to protect their property and life by causing assault on the prosecution party. The exercise of such right of private defence is not vindictive or malicious so far as the assailants are concerned and their action is also coming within the reasonable limit. It is also not clear who gave the fatal blow and in consequence of tussle between the accused Sumanta with Paresh and the deceased, when Paresh wanted to assault by a spade in such process any injury could have been caused either to Paresh or deceased. P.W.1 did not disclose about the spade. However in cross examination he has admitted that they had taken the spade with them. The presence of spade at the spot and use of the same by the prosecution parties to assault the accused persons was not in dispute. There was every apprehension of danger to the lives of the accused persons and under such circumstances the appellants have the right of private defence when one of the appellants was assaulted first with a cycle chain by P.W. 4 on his head. If any injury was caused to P.Ws. 1, 2, 4 and the deceased, it cannot be said that they exceeded the right of private defence. In the case of Lakshmi Singh and others v. State of Bihar, reported in AIR 1976 SC 2263 , it has been held that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of alteration of words, is very important circumstance, from which the Court and draw the following inference : 1. That the prosecution has suppressed the genesis of occurrence and does not present the true version. 2. That the witnesses, who have denied the presence of the injuries on the person of the accused, are lying on the most material point and therefore, their evidence is unreliable. 3. That in case there is a defence version which explains the injuries on the person of the accused, it renders probable so as to throw doubt on the prosecution case. 3. That in case there is a defence version which explains the injuries on the person of the accused, it renders probable so as to throw doubt on the prosecution case. The commission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or whether the defence gives a version which competes in any probability with that of the prosecution. The benefit also goes to the appellant in view of the doubt about the genesis of the case and nature of evidence depicted by the prosecution witnesses concealing the injury on the appellant Sushil in toto. As such the prosecution has failed to prove its case beyond reasonable doubt as they suppressed the real and true facts and genesis of the case. 19. The evidence and discrepancies as analyzed hereinabove paragraphs and taking into consideration all the above, we are of the opinion that the prosecution has failed to prove the case beyond reasonable doubt. Hence, this Court sets aside the impugned order of conviction and sentence passed by the learned Additional District & Sessions Judge, Rairangpur in S.T. Case No.11/98 of 1998, so far as the present appellants are concerned and acquits them from the charges accordingly under Sections 302, 323 and 148 of the I.P.C. The appellants who are on bail, let their bail bonds be cancelled and they be set at liberty, in case not required to be under custody in connection with other cases. The Lower Court Records along with copy of judgment be sent forthwith to the Trial Court for necessary action. The Criminal Appeal is accordingly allowed. K.R. MOHAPATRA, J. I agree. Appeal allowed.