Dasarath Sendha vs State of Orissa

K.P. Mohapatra, J.—The Appellant and five others stood trial in the Court of Sessions, Dhenkanal, for abetting and committing the murder of Dutia Bhukta (hereinafter referred to as the ''deceased''). The learned Sessions Judge, while acquitting five others, convicted the Appellant u/s 302. I.P.C. and sentenced him to undergo imprisonment for life.

Shorn of unnecessary details, the prosecution case is that the Appellant and the other accused persons since acquitted (hereinafter referred to as the ''accused party'') belong to village Nagaon. They have got agricultural lands on the bank of river Mahanadi near village Satabandhuli to which the deceased and some others (hereinafter referred to as the ''prosecution party'') belong. There is a piece of Ata land in Satabandhuli over which the accused party used to pass through with ploughs and bullocks in order to approach their agricultural lands. A dispute was raised between the people of these two villages with regard to the distribution of canal water from the minor irrigation Project in Nagaon to the agricultural lands of Satabandhuli. The deceased and others believed that the accused party was responsible for obstruction of the canal water and so they did not allow them to pass through the Ata land with ploughs and bullocks so as to enable them to approach their agricultural lands. On account of the above, there were civil and criminal litigations between both parties and there was no love lost between them. The occurrence took place early in the morning of 29-9-1983. The accused party along with the Appellant and some others arrived at the Ata land with their ploughs and bullocks so as to pass through it in order to reach their agricultural lands. The prosecution party led by the deceased prevented them saying that they were engaged in ploughing and sowing horsegram on the land. It is stated that the Appellant was armed with a bow and arrow, as well as a Tangia. When he attempted to pass through the Ata land, the deceased and his brothers (prosecution party) physically obstructed him. When the Appellant attempted to assault the deceased by means of the Tangia, the latter snatched away the same from his hands and raised it threatening that whoever would pass would be killed by him. At that time, the Appellant shot an arrow from the bow which struck the right side of the chest of the deceased, as a result of which he sat down on the field. He extricated the arrow and then fell down. He was nursed at the spot and was taken to the hospital at Athamallik. His brother (P.W. 1) lodged F.I.R. at the Athamallik Police Station (Ext. 1). Investigation commenced and the arrow which was produced at the police station was seized, The deceased was given treatment but when his condition deteriorated, the Medical Officer advised for his removal to the V.S.S. Medical College Hospital, Burla. Before the deceased could be removed, he died at the hospital itself, on 30-9-1983. After investigation was over, charge-sheet was submitted against the Appellant and other members of the accused party.

The plea of the Appellant during trial was that he had a right to pass over the Ata land in order to go to his agricultural land along with ploughs and bullocks. The deceased obstructed the passage and by snatching away his Tangia brandished it. Thereafter, he ran away from the place.

As already stated above, the learned Sessions Judge accepted the prosecution case and convicted the Appellant and acquitted others.

P.W. 2 was the Medical Officer of Athmallik Hospital who first treated the deceased and then conducted the post-mortem examination over the dead body. He found one incised wound of the size of 1" x 1/2 x 2" on the chest of the deceased. According to opinion, it was ante-mortem in nature and could be caused by shooting of the arrow (M.O.I) death according to him was on account of shock and respiratory failure consequent upon cardiac arrest (vide post-mortem report: Ext. 3). On consideration of the evidence of the Medical Officer, the learned Sessions Judge held that the death of the deceased was homicidal in nature caused by shooting of the arrow (M.O.I.). This finding has not been challenged in appeal.

Mr. S.C. Ghose, learned Counsel appearing for the Appellant urged that the accused party including the Appellant had a right of passage over the Ata land. In civil proceedings, the deceased and others had been prohibited by way of injunction not to obstruct the Appellant''s passage over the same. As obstruction was caused, the deceased and others were also punished. Therefore, on the date and at the time of the occurrence, the deceased had no business to obstruct the passage of the Appellant and others over the Ata land so as to pass through the same with ploughs and bullocks to go to their agricultural lands. Having done so, the deceased was his aggressor. Moreover, when the deceased snatched away the Tangia from the Appellant and raised it to assault, for which the Appellant became apprehensive of his own safety at that moment in order to defend himself and others of the accused party, shot the arrow. Therefore, right of private defence of both property and person was available to him. Accordingly, the Appellant is entitled to acquittal. The contentions require careful examination with reference to the evidence on record.

Before discussing the oral evidence, it is necessary to refer to the documentary evidence adduced by the Appellant, who was one of the Plaintiffs in Title Suit No. 14 of 1980 of the court of the Additional Munsif, Athmallik. In that suit, Misc. Case No. 9 of 1980 under Order 39, Rules 1 and 2, CPC was filed to restrain the Defendants, one of whom was the deceased, from obstructing the right of way to their agricultural lands by passing over plot No. 206 which indisputably was the Ata land. After hearing both parties, by order dated 2-9-1980 the Defendants including the deceased were restrained and they were prohibited to interfere and obstruct the Plaintiffs to go over to their agricultural lands through plot No. 206. The order of temporary injunction was made absolute. Subsequently, a petition under Order 39, Rule 2-A, Code of Civil Procedure, was filed by the Appellant and others in whose favour the order of temporary injunction was passed, stating therein that the deceased and others violated and disobeyed the order of temporary injunction. The petition was rejected and therefore, Misc. Appeal No. 3 of 1983 was preferred before the Subordinate Judge, Angul, which was disposed of by order dated 24-1-1983.(vide Ext. D). The deceased and others were found guilty of disobeying the order of temporary injunction and were punished All the facts narrated above will appear from the order, Ext. D itself. It is, therefore, manifest that the deceased and others had no right to obstruct the passage of the Appellant over the Ata land, plot No. 206 of Satabandhuli for going to his agricultural and with plough and bullocks.

P.W. 1, the informant was the elder brother of the deceased. He stated that there was dispute between the villagers of Nagaon and Satabandhuli with regard to passage of water to the village pond. There were previous litigations both in criminal and civil courts between the villagers. On the date of occurrence, in the morning, the Appellant and others of the accused party belonging to Nagaon arrived at the disputed Ata land with ploughs and bullocks and entered into the same in order to pass through it. The deceased prevented them by saying that when litigation was pending in respect of their passage through the land, they would not be allowed to pass through the same. At that time, the Appellant was armed with a bow and arrow and also a Tangia. Bijay (accused since acquitted) was holding a knife. Both of them attempted to attack the deceased. So the latter snatched away the Tangia, from the Appellant and raised it declaring that anybody who would approach him would be killed. At that time, the Appellant shot the arrow which struck on the chest of the deceased on the right side, and the pointed iron portion penetrated inside the body. The deceased fell down on the ground and pulled out the arrow. Thereafter, he was nursed and then removed to Athmallik Hospital. He lodged F.I.R. (Ext. 1) at Athmallik Police Station and produced the blood stained arrow (M.O.I.) before the Investigating Officer (P.W. 10). P.W. 3 stated that on the date and at the time of the occurrence, he was present near the spot. He saw that the Appellant and large number of others were proceeding towards the Ata land with ploughs and bullocks so as to pass through it in order to approach their agricultural lands. The deceased with his two brothers were ploughing the Ata land at that time. He requested the Appellant and others of the accused party not to pass through the Ata land, as litigation was pending, but they did not listen and forcibly entered into the land. The deceased, therefore, came in front of them and obstructed their passage. The Appellant was holding a bow and arrow by his left hand and had kept a Tangia on his right shoulder. He rushed towards the deceased raising the Tangia by hand. Bijay (accused since acquitted) who was armed with a knife, also rushed towards the deceased. Seeing both the Appellant and Bijay rushing towards him, the deceased snatched away the Tangia from the Appellant. The Appellant shot the arrow from the bow which struck the deceased on the right side of the chest. It transpires from cross examination that he had stated before the Investigating Officer (P.W. 10) that the deceased had snatched away the Tangia from the hand of the Appellant and raised it to assault, although this statement was not made by him in court. P.W. 4 was ploughing his land near the Ata land on the date and at the time of the occurrence. He gave the details of the occurrence as P.W. 3 and so repetition of the same fact is not necessary. P.W. 5, the first cousin of the deceased stated substantially the same as P.W. 1. The important part of his evidence is that when the Appellant attempted to assault the deceased by his Tangia, the latter snatched away the same from his hand. At that time, the Appellant shot the arrow which struck on the right side of the chest of the deceased. In cross-examination, he admitted that after snatching away the Tangia from the Appellant, the deceased kept it raised by his hands. At that time, both the Appellant and the deceased were at a distance of four cubits from each other. P.Ws. 6 and 8 were post occurrence witnesses who saw the deceased lying injured and an arrow beside him.

Five defence witnesses were examined, one of whom, namely, D.W. 1 stated that after the deceased snatched away the Tangia from the Appellant, he brandished it. His evidence is partly true and the part relating to the brandishment of the Tangia cannot be accepted in view of the specific evidence of P.Ws. 1 and 5, both relations of the deceased.

From the aforesaid evidence, the following facts emerge. There was previous ill-feeling between the villagers of Nagaon and Satabandhuli with regard to flow of water from a minor irrigation project to Satabandhuli. The Appellant and members of the accused party had lands by the side of the river and in order to approach their agricultural lands, they had to pass through a piece of Ata land which was claimed by the deceased and his brothers as their exclusive property, whereas, the Appellant and other members of the accused party claimed a right of passage over it. A suit was pending between both parties in which the Appellant and others were the Plaintiffs and the deceased and others were the Defendants. In that suit, the deceased and other Defendants had been temporarily restrained by the court not to obstruct the passage of the Appellant and other Plaintiffs through the Ata land in order to approach their agricultural lands. Patently, the deceased and other Defendants violated the order of temporary injunction, and so a petition under Order 39, Rule 2A, Code of Civil Procedure, was filed against then by the Appellant and other Plaintiffs. This petition was dismissed in the trial court. In appeal, the Appellant and other Plaintiffs succeeded and the deceased and other Defendants were punished in accordance with law. On the date of occurrence, when the Appellant and other members of the accused party attempted to pass through the Ata land with their ploughs and bullocks in order to go to their paddy lands, the members of the prosecution party led by the deceased obstructed. At that time the Appellant was armed with a bow and arrow, as well as a Tangia. The deceased snatched away the Tangia from the hand of the Appellant and raised it saying that whoever will pass through the Ata land in defiance of his protest shall be killed. At this moment, the Appellant shot the arrow which struck on the chest of the deceased on the right side. The distance between both was about four cubits.

On these facts, there appears a clear case of right of private defence of person and property available to the Appellant. He had obtained an order from the court to pass through the Ata land and the deceased was illegally obstructing the passage. In such circumstances, it would not be incorrect to presume that there ensued exchange of hot words in course of which the Appellant raised the Tangia which was snatched away by the deceased. After snatching it away, the deceased raised the Tangia and gave out that whoever will pass through the Ata land in defiance of his protest will be killed. Because the distance between the Appellant and the aeceased at that time was only four cubits, the Appellant might have apprehended that unless he would defend his person, there was every likelihood of the deceased hitting him by means of the axe which he had raised. With such apprehension b mind, he shot the arrow. It is settled law that when a person is apprehending grave danger to himself and his instinct of self defence is aroused, he cannot have the mental balance of measuring the degree of assault which he would deal to his opponent. Therefore, by shooting the arrow at the deceased, the Appellant cannot be said to have exceeded the right of self defence. (See 1963 S.C.D. 66 : Jai Dev Vs. The State of Punjab, . Judging the case in the background of the aforesaid facts, we are of the view that the Appellant has discharged the onus placed on his u/s 97, I.P.C. and is entitled to acquittal on the ground that he had inflicted the injury on the deceased in order to protect his right, as well as his person.

In the result, therefore, the appeal is allowed and the Appellant is acquitted of the charge u/s 302, I.P.C. He is set at liberty.

J.M. Mahapatra, J.

I agree.

Appeal allowed.