CHAMPEI Vs. STATE OF ORISSA

JUDGEMENT

(1.) Challenge in this appeal is to the judgment and order of conviction recorded against the two appellants by the trial Court convicting them under S.302 of the Penal Code (for short, 'the Code') and sentencing them to undergo imprisonment for life, after acceptance of the case of the prosecution that the two appellants, with two other co-accused persons who have been acquitted, went upon the land of Nanda Barik (to be referred to hereinafter as 'the deceased') which had been purchased by him from Sadhu Barik (P.W.13) a few months prior to the date of occurrence which had taken place on May 5, 1980, being armed with deadly weapons, such as, Ekmunia, Farsa and lathis and assaulted the deceased to death on the spot. The case of the defence was one of denial of the occurrence, as alleged. According to the appellants and the co-accused persons, the land in question was in their cultivating possession as bhag tenants of P.W.13 and the deceased and his sons were the aggressors and had started the assault having gone to the spot being armed. Right of private defence both of person and property had been set up.

(2.) It is not disputed at the Bar that the deceased had died a homicidal death. The findings of the trial court that the appellants had dealt blows on the person of the deceased, the appellant Chintamani having dealt the fatal blow by means of Ekamunia and the other appellant having dealt a blow on the nose by means of a Farsa on the person of the deceased have not been assailed by the learned counsel for the appellants.

(3.) The only question raised on behalf of the appellants is one of right of private defence of person and property. It has been submitted by Mr. Mohapatra appearing for the appellants that as the appellants with the co-accused persons were in cultivating possession of the land as bhag tenants and it had been sold by P.W. 13 in favour of the deceased without legal authority, the deceased was not justified in going upon the land for the first time on the day of occurrence and accordingly, the appellants were well within their rights to exercise the right of private defence of property. It has also been urged that as the deceased's party had started the assault and the deceased had dealt a blow on the head of the appellant Chintamani, as found by the trial Court itself, the appellants had the right of private defence of the person of Chintamani and they had not exceeded it. The learned Additional Standing Counsel has submitted and in our view, justifiably so, that the appellants did not have the right of private defence of property to the extent of causing the death of the deceased, in view of the provisions contained in Ss.103 and 104 of the Code enumerating the extent and circumscribing the limits of the right of private defence of property. He has fairly submitted that the appellants did have the right of private defence of person of the appellant Chintamani which they had exceeded and therefore, the order of conviction should properly and legally have been recorded under S.304, Part I of the Code by the application of Exception 2 to Sec. 300 of the Code.