BENUDHAR NAIK Vs. STATE OF ORISSA

JUDGEMENT

(1.) the appellant Benudhar and his illatum sun-in-law Hrushikesh (the other appellant) stood charged under Section 302 read with Section 34 of .the Indian Penal Code (for short, the Code) with having committed the murder of Sunamani Naik (to be referred to as the deceased) in furtherance of their common intention on August 31, 1979, at village Sorisia in the district of Cuttack, owing to a land dispute. The deceased was a close relation of the two appellants being the son of Gopimohan Naik (P.W. 3), cousin of the appellant Benudhar and had land contiguous to the land of the appellants who had a dispute with the former over the possession of a part of the land where stood a ridge. On the day of occurrence, both the sides had gone upon their land for the purpose of cultivation. A quarrel occurred and there was an altercation which was heard by Gopimohan Naik (PW. 3), father of the deceased. Owing to his old age, he was not in. a position to cover the distance and in the absence of the other male members in the family, he instructed Sua Nalk (P.W. 1) and Gita Naik (P.W. 4), the daughters, of the deceased and Dinbandhu Naik (brother of the deceased) respectively to find out as to what had happened. Both these witnesses had seen the appellant Benudhar dealing lathi blows on the back and leg of the deceased and the other appellant, namely, Hrushikesh, dealing a lathi blow on the head of the deceased which had resulted in his death. To bring home the charge against the appellant, the prosecution had examined fourteen witnesses. The appellants had admitted to have dealt the blows. They Thad, however, pleaded the right of private defence of property and person in that the deceased bad trespassed upon and caused damage to the ridge in the possession of the appellants and after the assault by the appellant Benudhar, the deceased had attempted to deal a blow on the other appellant by a Kodala for which the latter had assaulted the deceased in exercise of the right of private defence of his person in order to have his life.

(2.) On a consideration of the evidence, the learned Sessions Judge held that the charge under Section 302 read with Section 34 of the Code had not been brought home to the appellants. He, however, found the appellant Hrushikesh guilty under Section 302 of the Code and sentenced him thereunder to undergo imprisonment for life. The other appellant was convicted under Section 324 of the Code and sentenced thereunder to undergo rigorous imprisonment for a period of one year.

(3.) Mr. Deepak Misra, appearing on behalf of the appellants, has submitted that the evidence of P. Ws. 1 and 4 was not worthy of credence and even assuming that the prosecution case presented at the trial was true, the appellants had the right of private defence of the their persons in causing the fatal injuries to the deceased. He has contended that if this Court holds, agreeing with the learned Sessions Judge, that the appellants had no right of private defence, the appellant Benudhar could appropriately be convicted under Section 323 of the Code and the other appellant could legally be convicted under Section 304 Part II of the Code as he had neither the intention to cause the death of the deceased nor to cause such bodily injury was likely to cause his death. Mr. Sahoo, the learned Standing Counsel, has submitted that on a careful consideration of the evidence of. P.Ws. 1 and 4 which found support in the medical evidence coupled with the admissions made by the two appellants that they had assaulted the deceased there could be no doubt that they were the authors of assault. He has further submitted and our view, fairly so, that the contentions raised by the learned counsel for the appellants with regard to the nature of the crimes committed by the two appellants seen to be reasonable in the circumstances of the case.