Research › Search › Judgment

Orissa High Court · body

2021 DIGILAW 324 (ORI)

Dwaru Patra (dead) v. State Of Odisha

2021-07-23

S.K.MISHRA, SAVITRI RATHO

body2021
JUDGMENT S.K. Mishra, J. - A gory episode of killing of three persons has been reported in this case. It appears from the record that three persons were murdered by the appellants for property dispute. The appellants, namely, late Dwaru Patra and his wife appellant no.4, namely, Bedamati Patra and their sons Mahendra Patra, Indra Kumar Patra have been convicted by the learned Additional Sessions Judge, Balangir in Sessions Case No.28/11 of 1997 as per the judgment dated 02.06.1998 convicting them for the offence under Section 302/149 and also for the offences under Sections 148, 143 and 324 of the Penal Code and sentencing each of them to undergo imprisonment for life. The appellant no.4, namely, Bedamati Patra has also been convicted for the offence under Section 304 of the Penal Code and has been sentenced to undergo imprisonment for six months for that offence. Dwaru Patra died during pendency of the appeal. The appeal abates as far as he is concerned as per the order of this Court on 24.08.2020. 2. The prosecution alleged that the three deceased, namely, Jhalia Karmi, Khageswar Karmi and Parameswar Karmi, and four injured persons, namely, Ramesh Karmi, Umesh Karma, Sabita Karmi and Lochana alias Sulochana Karmi are members of one family. The prosecution further put forth that they are owners-in-possession of a land, locally known as Dimilapidha or Dimilakheta. On 15.07.1996 in the morning hour, the deceased and injured persons had gone to the Dimilapidha land for sowing paddy seeds. While they were ploughing and working in the field along with two other persons, namely, Panchanan Chaulia and Bhagirathi Chaulia, the accused persons along with Mahendra Patra and other sons of accused Dwaru Patra, rushed to the land being armed with different weapons like tangi, tablee, kati, spear (tenta) and thengas. Accused Bedamati and Mahendra threw glass dusts on the faces, respectively, of Khageswar Karmi and Parameswar Karmi. The three deceased were indiscriminately assaulted mainly by the male accused persons, namely Dwaru, Mahendra and Indra by means of deadly sharp cutting weapons. The accused Bedamati assaulted and injured Sabita Karmi by kati and accused Mahendra and Narendra assaulted and injured Sulochana Karmi. Accused Mahendra also assaulted the injured Umesh, Narendra Paptra assaulted and injured Ramesh Karmi. After the assault, the accused persons ran away. Jhalia Karmi and Khageswar Karmi died immediately on the spot. The accused Bedamati assaulted and injured Sabita Karmi by kati and accused Mahendra and Narendra assaulted and injured Sulochana Karmi. Accused Mahendra also assaulted the injured Umesh, Narendra Paptra assaulted and injured Ramesh Karmi. After the assault, the accused persons ran away. Jhalia Karmi and Khageswar Karmi died immediately on the spot. Parameswar Karmi also died on the spot a little later. Saraswati Karmi, wife of deceased Parameswar Karmi informed Sahadev Padhan (P.W.2) about the occurrence. Then Saraswati and Sahadev both went to Khetra Karmi (P.W.1) and informed him at his house about the occurrence. P.W.1 & P.W.2 informed Narayan Badi, the Grama Rakhi (P.W.9) and then all three of them went to the case land and found Khageswar Karmi and Jhalia Karmi lying dead with injuries on their persons. Parameswar Karmi was lying with serious injuries and was gasping and flailing. Umesh Karmi, Ramesh Karmi, Sabita Karmi and Sulochana Karmi were also present there with injuries on their person. P.Ws.1, 2 & 9 ascertained from Umesh Karmi and Ramesh Karmi that the accused persons along with Narendra Patra had assaulted them and the deceased persons. Therefore, P.Ws.1 and 9 and one Suresh Karmi came to Biramaharajpur Police Station. P.W.1, Khetra Karmi orally reported to the O.I.C., Biramaharajpur Police Station about the incident and his oral report was reduced into writing. The OIC, registered the case i.e. Biramaharajpur P.S. Case No.56 of 1996 and immediately took up investigation. In course of investigation, he visited the spot where he found Parameswar Karmi had already succumbed to the injuries on the spot. He conducted inquest over the dead bodies of Khageswar, Jhalia and Parameswar and sent the dead bodies for post mortem examination to the District Head Quarters Hospital, Sonepur. He seized two sticks, one spade, one tangia and one plough from the spot. He examined witnesses including the injured. He sent requisition to the Medical Officer, Subalaya, P.H.C. for medical examination of the injured persons. He also seized the weapons of offence from the house of the accused persons. The I.O. seized the records of C.M.C. No.50/96, a proceeding initiated under Section 144 of the Code of Criminal Procedure, 1972 (hereinafter referred as 'the Code', for brevity) of the court of the Executive Magistrate, Biramaharajpur pertaining to the lead involved in this case. Upon completion of investigation the charge-sheet against the accused persons and one Narendrea Patra was submitted. The I.O. seized the records of C.M.C. No.50/96, a proceeding initiated under Section 144 of the Code of Criminal Procedure, 1972 (hereinafter referred as 'the Code', for brevity) of the court of the Executive Magistrate, Biramaharajpur pertaining to the lead involved in this case. Upon completion of investigation the charge-sheet against the accused persons and one Narendrea Patra was submitted. Narendra Patra could not be arrested in course of investigation and his case was not committed to the court of Sessions. He has been treated as an absconder. 3. The defence plea is denial of the occurrence. It appears from the record that the accused/appellants also took the plea that they were in possession of land in question and deceased family were forcibly ploughing the same. It is further pleaded by the appellants that when they protested their action, the deceased and other injured assaulted the accused persons and caused injuries. 4. In order to prove its case, prosecution examined 15 witnesses, led in to evidence 26 exhibits and 10 materials objects. P.W.3-Umesh Karmi, P.W.5- Ramesh Karmi, P.W.6- Lochan Karmi and P.W.8- Sabita Karmi are the injured eye witnesses to the occurrence. P.W.10- Panchanan Chaulia is an independent eye witness to the occurrence in the sense that he is not related to the family of the deceased but he was working for the deceased persons on the case land at the time of the occurrence. P.W.1-Khetra Karmi is the post occurrence witness. He is the informant in this case. P.W.4-Jatia Karmi, P.W.7-Hrusikesh Padhan, P.W.9-Naran Badi are the formal witness being the witnesses to the inquest, seizure etc. P.W.11- Gourahari Nag is the Bench Clerk of the Sub-Collector, Birmaharajpur on whose production the records of criminal proceeding were seized by the investigating officer. He was also given zima of the said records. P.W.12- Dr. Anusuman Tripathy, who conducted autopsy over the dead body of the deceased Khageswar Karmi and Jhalia Karmi. P.W.13- Dr. J. Dora, who conducted postmortem on the dead body of the deceased Paramesar Karmi, P.W.15- Dr. Sujit Mahapatra is the medical officer of P.H.C., Subalaya, who examined the injured on police requisition and P.W.14- Khageswar Agasti is the Investigating Officer in this case. 5. The defence, on the other hand, did not examine any witness on its behalf. P.W.13- Dr. J. Dora, who conducted postmortem on the dead body of the deceased Paramesar Karmi, P.W.15- Dr. Sujit Mahapatra is the medical officer of P.H.C., Subalaya, who examined the injured on police requisition and P.W.14- Khageswar Agasti is the Investigating Officer in this case. 5. The defence, on the other hand, did not examine any witness on its behalf. It has led into evidence, the FIR in the counter case and the injury report in respect of some of the accused persons marked as Exts.-A to F. 6. Mr. D.P. Dhal, learned Senior Counsel appearing for the appellants argued that at this stage the appellants are not disputing on the factual findings of the learned Additional Sessions Judge to the effect that the death of the deceased persons were homicidal in nature and the injured has sustained injuries as found by the doctor P.W.15. He also did not dispute the complicity of the present appellants in the commission of the crime as alleged by the prosecution. He, however, relied heavily on the records of the proceeding under Section 144 of the Code, and stated that there is dispute regarding possession of agricultural land between the appellants family and family of the deceased persons and that accused persons also sustained injuries in the occurrence. He also submitted that this is a clear case of right to private defence of property. Therefore, he would argue that the appellants conviction cannot be upheld by this Court and has to be set aside. Mr. A.K. Nanda, learned Additional Government Advocate, on the other hand, did not dispute the fact that the accused persons have also sustained some injuries and it is evident from the injury reports G/1, E/1 and F/1 so far it relates to Narendri Patra, Dwaru Patra and Mahendra Patra. But, he argued that this is a case of murder of three persons and the facts of the case do not justify a killing of three persons so that the right of private defence of property cannot be extended to the actions of the appellants. He heavily relied upon the findings recorded by the learned Additional Sessions Judge in this case and very emphatically submitted that the learned Additional Sessions Judge has taken a very perspicacious and sensitive view of the materials on record and has come to a just and proper conclusion requiring no interference in this case. 7. He heavily relied upon the findings recorded by the learned Additional Sessions Judge in this case and very emphatically submitted that the learned Additional Sessions Judge has taken a very perspicacious and sensitive view of the materials on record and has come to a just and proper conclusion requiring no interference in this case. 7. Since the learned counsel appearing for both the parties did not dispute the medical findings or the opinion rendered by the doctors in this case and the complicity of the appellants in the commission of the crime, it is not necessary on our part to examine in detail the medical evidences available on records. It is also not necessary to re-examine the evidences of the eye witnesses in this case to come to the conclusion regarding complicity of the appellants in commission of the alleged offences. However, we have perused the record and found the evidence of P.W.12- Dr. Anusuman Tripathy. P.W.13- Dr. J. Dora together with the contents of Exhibits- 6, 7 and 8, the three inquest reports which prepared by the I.O. with respect to the three deceased i.e. Exhibits 13, 14 and 17, the postmortem examination reports with respect to them and also the injury reports and the evidence of P.W.15, and we are of the opinion that the three deceased did suffer homicidal nature of death. The injured persons also sustained injuries as stated to by P.W.15- Dr. Sujit Mahapatra. It is also apparent that P.Ws.3, 5, 6, 8 and 10 the eye witnesses are consistent in their evidence regarding complicity of the appellants in commission of the crime. The learned Additional Sessions Judge after careful examination of the material on record keeping in view the suggestions and the contentions raised by the learned counsel for the defence has come to a conclusion that their evidence are to be accepted to prove the fact alleged by the prosecution. The learned Additional Sessions Judge further held that the contradiction pointed out by the defence in the evidence of these witnesses are minor, having no impact on the veracity of the witnesses. We find no plausible reason to come to a different conclusion than the one arrived at by the learned Additional Sessions Judge. The question that remains to be decided in this case is whether the appellants should be given the benefit of right of private defence of property or/and of life. We find no plausible reason to come to a different conclusion than the one arrived at by the learned Additional Sessions Judge. The question that remains to be decided in this case is whether the appellants should be given the benefit of right of private defence of property or/and of life. 8. In developing a case for the appellants, Mr. D.P. Dhal, learned senior counsel, would argue that non-explanation of the injuries on the person of three of the accused persons, the admission of the Investigating Officer that as per the report of the Revenue Inspector the land in question is recorded in the names of the family of the accused persons, pendency of litigation between the parties, the appellants have established a case of right to private defence of life and property, and therefore, they should be acquitted of the offences. Learned Additional Government Advocate on the other hand would argue that the right to private defence, property and life has to be proved by the appellants. He would also argue that it is necessary on the part of the appellants to establish beyond reasonable doubt an exercise of their right to private defence of life and property on the fateful day of the incident. He further argued that the appellants have failed to establish its case beyond all reasonable doubt and fact that the witnesses have stated that the land in question was in possession of the informant/deceased and their family members and that there was a restraint order passed by the Executive Magistrate, Birmaharajpur, in a proceeding under Section 144 of the Code and that three persons were done to death by the action of the accused persons, it is not a case of right to private defence or rather, it is a clear case of murder. He also argued that the evidence on record reveals that the accused persons came to the spot being arm with deadly and sharp cutting weapon. So, the injuries sustained by the accused persons are of no consequence. Therefore, learned counsel for the State submitted that the appeal should be dismissed and conviction as well as the sentence imposed by the learned Additional Sessions Judge should not be disturbed in any manner. 9. So, the injuries sustained by the accused persons are of no consequence. Therefore, learned counsel for the State submitted that the appeal should be dismissed and conviction as well as the sentence imposed by the learned Additional Sessions Judge should not be disturbed in any manner. 9. A careful examination of the impugned judgment reveals that the learned Additional Sessions Judge, while dealing with the question of right to private defence and plea set up by the appellants regarding the injuries sustained by them, has taken into consideration the following while rejecting the plea raised by the appellants. (I) The three of the appellants, namely, Bedamati, Mahendra and Narendra have admitted in their statement under Section 313 of the Code that they were present on the case land at the time of occurrence, as they have taken the plea that the deceased persons and injured witnesses assaulted them. He further took into consideration the reported case of U.P. vs. Lakhmi, (1998) 14-OCR-(SC) 358 that examination of accused is not a mere formality and that the admission made by the accused under Section 313 Code cannot be ignored on such interpretation of the Honble Supreme Court with respect to Sub-clause (4) of Section 313 of the Code. (II) Taking note of the reported case of Harekrushna Singh and Others vs. State of Bihar, AIR 1988-SC-863 the learned Additional Sessions Judge has held that it is not necessary on the part of the prosecution, in each and every case, to explain the injuries sustained by the accused persons during the course of incident. (II-A) Therefore, the learned Trial Judge held that in the given case, even if it is established that the accused persons have received injuries in the same transaction, the plea of private defence would not be accepted as prima facie established. (III). The learned Trial Judge did not give much weightage to the concession made by the Investigating Officer, P.W.14, in this case that the Revenue Inspector reported that the land was recorded in the name of accused persons in view of the fact that neither any ROR, nor was any document to show their ownership etc. possession has been filed by the accused persons. possession has been filed by the accused persons. (IV) He also took into consideration the fact that the prosecution has proved in this case that the Executive Magistrate vide order dated 02.07.1996 issues a restraint order against the 2nd party member i.e. the accused persons retraining them from going over the land in question. (V). The circumstances of this case shows that the accused themselves were the aggressors and they cannot be said to have any right to private defence. 10. Thus, learned Trial Judge has held that the prosecution has proved its case beyond reasonable doubt and that the defence has not established its case of right to private defence. 11. Taking note of the first contention that burden of proving the right of private defence by the appellants should be discharged by standard of proof required as 'beyond all reasonable doubt by the learned Additional Government Advocate, we are of the opinion that such argument is not acceptable. In the case of Woolmington vs. Director of Public Prosecutions, All England Law Reports, 1935, page 1, a person was convicted by the trial court. His appeal was dismissed. Thereupon the Attorney-General of the United Kingdom gave his fiat certifying that the appeal of Reginald Woolmington involved a point of law of exceptional public importance, and therefore, the matter came before the Law Lords of England. After taking into consideration several earlier precedents and arguments propounded by the Law Lord, it was ruled that 'But while the prosecution must prove the guilt of prisoner, there is no such burden laid on the prisoner to prove his innocence, and it is sufficient for him to raise a doubt as to his guilt; he is not bound to satisfy the jury of his innocence. It was further observed that throughout the web of the English criminal law one golden thread is always to be seen- that it is the duty of the prosecution to prove the prisoners guilty subject to what I have already said as to the defence of insanity and subject also to any statutory exception. It was further observed that throughout the web of the English criminal law one golden thread is always to be seen- that it is the duty of the prosecution to prove the prisoners guilty subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. It is further laid down that dealing with a murder case the Crown must prove (a) death as the result of a voluntary act of the accused and (b) malice of the accused. It may prove malice either expressly or by implication. For malice may be implied where death occurs as the result of a voluntary act of the accused which is (i) intentional and (ii) unprovoked. When evidence of death and malice has been given (this is a question for the jury) the accused is entitled to show by evidence or by examination of the circumstances adduced by the Crown that the act on his part which caused death was either unintentional or provoked. If the jury are either satisfied with his explanation or, upon a review of all the evidence, are left in a reasonable doubt whether, even if his explanation is not accepted, the act was unintentional or provoked, the prisoner is entitled to be acquitted. On a reference to the Principles of Criminal Liability, Voll-11, Criminal Law, Evidence and Procedure Crown Proceedings and Crown Practice (Halsburys Law of England Forth Edition), we find the Defence in General has been dealt with by following:- 'the general principle of the common law is that the prosecution must prove the guilt of a defendant beyond all reasonable doubt; it is not incumbent upon a defendant to establish his innocence. Where one of those mattes affording justification at common law, such as accident , consent, duress, drunkenness, self-defence, or non-insane automatism is set up as a defence, the burden of proving the absence of such justification lies upon the prosecution, this is also the rule in the case of provocation such as to reduce a killing from murder to manslaughter. The burden of proving insanity or the statutory defences of diminished responsibility or marital coercion lies upon the defence; but the standard of proof is not as high as that required of the prosecution to prove guilt.' 12. We are aware that we have adopted the Anglo- Saxon Jurisprudence. It has been, in its application to India suitably notified by the India Parliament and appropriately interpreted by the Honble Supreme Court of India and different High Courts. But the basic tenet largely remains unaffected. An authority pronouncement in the year, 1935 and the Halsburys Law of England provide that the burden to prove regarding the guilt of the accused is on the prosecution and it has to be establish its case beyond all reasonable doubt, but in case of defence, such a plea, as in this case right to private defence need not be established by the defence beyond all reasonable doubt. It is sufficient for the defence to raise a reasonable doubt regarding the prosecution case and that by proving its case by preponderance of evidence or probability. In our Country, as per Section 105 of the Indian Evidence Act, 1872, if an accused claims benefit of an exception to the burden of proving that case falls under the exception, then the burden shall lie upon him. But, such burden is subject to the burden on the prosecution to prove the guilt of the accused beyond all reasonable doubt. The effect of Section 105 of the Indian Evidence Act on the general rule of proven guilty beyond all reasonable doubt has been explained by the Honble Supreme Court in several cases. It is noteworthy taken into consideration in the case of K.M. Nanavati vs. State of Maharastra, 1962 AIR 605. This ratio has been followed by the Honble Supreme Court as well as the High Court in the several cases. 13. The contention raised by Mr. It is noteworthy taken into consideration in the case of K.M. Nanavati vs. State of Maharastra, 1962 AIR 605. This ratio has been followed by the Honble Supreme Court as well as the High Court in the several cases. 13. The contention raised by Mr. Nanda, learned Additional Government Advocate that appellants must prove their defence case of right to private defence by proving it beyond all reasonable doubt is not acceptable. 14. As far as injuries found on the person and the appellants, the learned Trial Judge has taken note of the reported case of Harekrushna Singh and Others vs. State of Bihar (supra) and has held that non-explanation by prosecution of the injuries on the accused is a fact which is taken into account in judging veracity of the witness and court will scrutinize their evidence with care if a case is presented on its own fixture. In some cases, such non-explanation may have little or no adverse effect on the prosecution case. It is further held by the learned Trial Judge that in a given case it may strengthen the plea of private defence set up by the accused. but it cannot be laid down as in variable proposition of law of universal appreciation that as soon as it is found that the accused has received injuries in the same transaction, the plea of private defence would stand prima facie established. Keeping in view such principles in mind, the learned Trial Judge further held that the in the case in hand the non- explanation of injuries on the person of the appellant/accused is of no consequence, and that it does not make out a further case of right to private property as set up by the defence. 15. Such a proposition of law relied upon by the Trial Judge also finds support from the following ratio laid down by the Honble Supreme Court in the following cases. Thus, this Court is of the opinion that the findings given by the learned Trial Judge that the non-explanation of the injuries on the person of the appellants are of no consequence and such findings is based on plausible reasoning and perspicacious appreciation of material on record. There is no hard and fast rule that the prosecution must explain the injuries on the person of the accused in all cases and circumstances. In the case of Bhaba Nanda Sarma Vs. There is no hard and fast rule that the prosecution must explain the injuries on the person of the accused in all cases and circumstances. In the case of Bhaba Nanda Sarma Vs. State of Assam, (1977) 4 SCC 396 , the Honble Supreme Court held that prosecution is not obliged to explain the injuries on the person of an accused in all cases and circumstances. It depends upon the facts and circumstances of each case where the prosecution case becomes reasonably doubtful for its failure to explain the injuries on the accused. 16. In an earlier case i.e. Ramlagan Singh and Ors. Vs. State of Bihar, (1973) 3 SCC 881 , the Honble Supreme Court held that the prosecution is not called upon in all cases to explain the injuries received by the accused persons. It is for the defence to put questions to the prosecution in cases regarding the injuries of the accused persons. When this is not done, there is no occasion for the prosecution witnesses to explain the injuries on the person of the accused. Applying the principles in the case in hand it is seen P.W.3, Umesh Karmi though extensively cross-examined by the defence but have been put only a question regarding the injuries on the person of one of the appellant. This witness was not asked how the accused sustained such injuries. P.W.5, Ramesh Karmi has also been extensively cross-examined by the defence. He has also not been cross-examined by the learned counsel for the defence to explain the injuries sustained by the injured person. P.W.6, another eye witness, namely, Lochan Karmi has been asked but he has denied that he assaulted the accused persons on the date and time of occurrence. He further stated that he has not seen the injuries on the person of the accused persons at the time of occurrence but voluntarily added that while the accused persons were assaulting them, they also received the injuries from themselves. P.W.8, Sabita Karmi another eye witness to the occurrence was given a suggestion that the accused persons were assaulted by the eye witnesses for which they sustained injuries. P.W.10, Panchanan Chaulia is an independent eye witness in the sense he is not related to the injured/deceased, has not been cross-examined on this point. P.W.8, Sabita Karmi another eye witness to the occurrence was given a suggestion that the accused persons were assaulted by the eye witnesses for which they sustained injuries. P.W.10, Panchanan Chaulia is an independent eye witness in the sense he is not related to the injured/deceased, has not been cross-examined on this point. the Investigating Officer, P.W.14, Khageswar Agasti was not put any question on the question of the injuries sustained by the appellants nor he was given a chance to explain any such injuries sustained by them. In other words, the defence has not stipulated by effective cross-examination of witnesses that the appellants have in fact sustained injuries during course of the incident. Furthermore, no clarification is sought from them. In such view of the fact, this Court is of the opinion that the learned Additional Sessions Judge was correct in not giving much weightage to the defence plea that the accused persons have also sustained injuries and that the prosecution has failed to explain the same. In the given facts and circumstances of this case, we are of the opinion that this is not a case where the case of the prosecution has to be thrown out for non-explanation of the injuries on the appellants. We therefore find no reasonable ground to hold that it shall be expedient in the interest of justice to come to a different conclusion and overrule the findings of the learned Trial Judge. 17. Coming to the question of right to private defence, we take note of the Sections 100 and 103 of the Penal Code. '100. When the right of private defence of the body extends to causing death - The right of private defence of body extends, under the restrictions mentioned in the last preceding Section, to the voluntary causing of death of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely. First- Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; Secondly- Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault; Thirdly- An assault with the intention of committing rape; Fourthly- An assault with the intention of gratifying unnatural lust; Fifthly- An assault with the intention of kidnapping or abducting; person under circumstances which may reasonably cause him to apprehended that he will be unable to have recourse to the public authorities for his release. [Seventhly-An Act of throwing or administering acid or an attempt to throw or administer acid which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such act.]' '103. When the right defence of property extends to causing death- The right of private defence of property extends, under the restrictions mentioned in Section 99, to the voluntary causing of death or of any other harm to the wrong- doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely;- First- Robbery; Secondly-House-breaking by night; Thirdly-Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property; Fourthly-Theft, mischief or house- trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised.' Both the provisions are quoted above for proper appreciation. Clause seven of Section 100 is not applicable to the present case as it has been inserted in the Penal Code by the Criminal Law Amendment Act, 2013, much after the incident. Clause seven of Section 100 is not applicable to the present case as it has been inserted in the Penal Code by the Criminal Law Amendment Act, 2013, much after the incident. As far as other ingredients are concerned, it is seen that the right to private defence extends to causing death of any person which occasions in the due exercise of the right to be of any of the description: (i) such an assault as may be reasonably cause the apprehension that death will otherwise be the consequence of such assault; (ii) such an assault as may be reasonably cause the apprehension in the mind of the accused as grievous hurt will otherwise be the consequence of such assault, (iii) an assault with the intention of committing rape; (iv) an assault with the intention of gratifying unnatural lust; (v) an assault with the intention of kidnapping or abducting; and (vi) an assault with intention of wrongfully confining a person. As far as the present case is concerned, the clauses (3), (5) & (6) are not applicable as no such plea is raised in this case. The first two clauses i.e. apprehension of death or grievous hurt may be applicable keeping in view the consequences of such section. But, having considered the material on record, there is no finding by the learned Trial Judge that there was an apprehension on the part of the appellants that death or grievous hurt otherwise be the consequence of the action of the deceased/injured. It is not the case of the appellants that the deceased/injured came to the spot, armed with deadly weapons and attacked the appellants. Rather, it is borne out from the record that the appellants who went to the spot while the deceased and injured were the ploughing land. 18. As far as the right to property is concerned, it is seen that such a right of private defence of property extends to causing death if, (i) there is apprehension of robbery; (ii) house breaking by night; (iii) Mischief by fire committed on any building, tent or vessel, which is being used as a human dwelling, or as a place for the custody of property; and (iv) theft, mischief or house-trespass, under such circumstances as may be reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised. It is not a case of the defence that an attempt to robbery or house-breaking by night or mischief by fire of any building was made by the deceased. It is also not the case of the appellants that there was imminent danger of theft, mischief of house-trespass which may cause apprehension of death or grievous consequences. So, in this case, right to private defence property does not extend to causing of death. Moreover, there is material on record to show that the learned Executive Magistrate, Birmaharajpur has restrained, by order passed under Section 144 of the Code, the appellants, not to enter the land in question. In such a case, the act of the appellants going upon the land while the deceased/injured were cultivating the land is an act of aggression on the part of the appellants themselves. So, there is no reasonable ground to believe that the right of private defence of property extends to causing death. Anyway, the right of private defence of property, in this case cannot extend to such an extent of causing death of three persons and severe injuries to four others. So, we are of the opinion that this is not a case where the right of private defence should be held to have exercised by the appellants thereby holding that they are not guilty of the offence of murder and that they are guilty of the offence of manslaughter or committing homicide not amounting to murder. 19. Thus, on an analysis of the evidence on record and keeping in view the contentions raised at the Bar, we are of the opinion that the defence has not established a case of committing murder of three persons and injuries on four others in exercise of right of their private defence of property and life. In this case, materials are singularly absent to come to a conclusion hold that the appellants had any imminent threat to either their life or their property as envisaged under Sections 100 and 103 of the Penal Code. 20. In that view of the matter, we are not inclined to interfere with the findings recorded by the learned Additional Sessions Judge leading to the conviction of the appellants. We, therefore, upheld the conviction of the appellants and the sentences awarded by the learned Trial Judge. Hence, the appeal is dismissed. 21. 20. In that view of the matter, we are not inclined to interfere with the findings recorded by the learned Additional Sessions Judge leading to the conviction of the appellants. We, therefore, upheld the conviction of the appellants and the sentences awarded by the learned Trial Judge. Hence, the appeal is dismissed. 21. The Trial Court Records (T.C.Rs) be returned back to the trial court forthwith along with copy of this judgment. 22. The learned Additional Sessions Judge, Bolangir is hereby directed to send the records to the Court of the learned Sessions Judge, Sonepur, as in the meantime, the district of Sonepur has been constituted as a separate sessions division. The learned Sessions Judge, Sonepur shall immediately take appropriate step for recommitment. 23. As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the order available in the High Courts website, at par with certificate copy, subject to attestation by Mr. D.P. Dhal, Sr. Advocate along with seal, in the manner prescribed vide Courts Notice No.4587, dated 25th March, 2020 as modified by Courts Notice No.4798, dated 15th April, 2021.