Summa Behera and Others vs Emperor

Das, J.—The seven appellants have been found guilty u/s 147, Penal Code, and sentenced to rigorous imprisonment for two years each. The case against, these seven appellants was the following. There is a mango tope, called Badatotta, in village Gunduribadi within the ''-jurisdiction of Purusottompur Police Station. On 17th April 1942, certain persons, who, for the sake of convenience, have been called the Bhuyans, went and plucked mangoes from the aforesaid tope. They also ploughed a portion of the land on the ridge of which the mango trees stood. This was at about 7 or 8 A. M. There were two persons who were watching the tope. One of them was Mohan Naik (P.W. 12), and the other was a woman, called Chanchali Naikani (P.W. 13). Some of the mango fruits plucked from the tope were left with Mohan Naik, and the Bhuyans went back to their village after having plucked the mangoes and ploughed a portion of the land. At about 9 A. M., Chanchali Naikani came to the house of the Bhuyans, and told them that one Lokanath Patra and his men had come to the tope for plucking mangoes, and that they had taken Mohan Naik with his share of mangoes to a banyan tree, about a furlong away from the tope. It may be mentioned here that the present appellants are men of the said Lokanath Patra. For the sake of convenience, they have been called as Patra''s men. Lokanath Patra himself was not put on trial. On receipt of the information from Chanchali Naikani, the five Bhuyans came to the tope. They saw that there were 20 or 30 persons, including the present appellants, under the banyan tree. The allegation is that the five Bhuyans challenged Patra''s men, and on this there was a mutual marpit between the parties. On the side of the Bhuyans, two persons, Mohan and Sibram, were killed, two others were injured. On the side of Patra''s men, two persons were injured, namely, Hadia Sabat (appellant 5) and Dama Behera (appellant 7).

The village karji came to the spot on hearing of the occurrence. He found some of the Bhuyans standing near the dead bodies of Sibram and Mohan. The Bhuyans, however, gave no information to the village karji. The village karji received information from Abhi-manyu Behera (appellant 6), and he then sent a report to the police at Purusottampur. The Assistant Sub-Inspector of Purusottampur police station drew up a first information on the report of the karji, and came to the spot on 18th April 1942, at about 3 A. M. He held an inquest over the dead bodies, and carried on the investigation till the afternoon off)18th April 1942, when he made over charge of the case to the Sub-Inspector of police. The Sub-Inspector of police sent the injured persons for medical examination, and took other necessary action in the course of investigation. After investigation, he submitted charge-sheet on which nine persons were put on trial. The'' learned Sessions Judge convicted the seven appellants u/s 147, Penal Code. There was also a charge u/s 302 read with. Section 149, Penal Code, of which charge the learned Sessions Judge acquitted the appellants. The finding of the learned Sessions Judge on the question of possession is very clear. He has found that the tope in question with the mango trees was in possession of Lokanath. Patra and other Patras for the last fifteen or sixteen years. He has convicted the appellants on the basis of a finding that both parties had gone prepared for a fight, and as such none of them had the right of private defence. With regard to the charge u/s 302 read with Section 149, Penal Code, the learned Sessions Judge has expressed himself as follows:

It may not be unlikely that as the Bhuyans oame armed with deadly weapons they might have caused grievous hurt and apprehending that death or grievous hurt might possibly occur, some of the; Patras'' men might have caused the death of Siba-ram Bhuyan and Mohan Bhuyan in self-defence. As their original intention was not to cause death and as in the course of the fight they might have in self-defence oaused the death of the two persons, they are not liable u/s 302/149, Penal Code.

The finding of the learned Sessions Judge: that the tope in question was in possession of Lokanath Patra and other Patras is a finding, which is in favour of the appellants. This finding has not been challenged before us by the learned Advocate-General appearing on. behalf of the Crown. The learned Advocate-General has relied on the other finding of the learned Sessions Judge, namely that both parties had come prepared for a fight, and as such none of them had the right of private defence. It is, therefore, necessary to see how the occurrence took place in this case, bearing, in mind the fact that the tope in question belonged to Lokanath Patra and other Patras-and was in their possession for the last fifteen or sixteen years. The evidence given in the case clearly shows that, earlier in the morning, the Bhuyans had plucked mangoes from the the trees in the tope, and had also ploughed a portion of the land. There is evidence in the record which shows that there were clear traces on the spot indicating that mangoes had bben freshly plucked from the trees, and a portion of the land had been ploughed. Then, about a couple of hours after the aforesaid incident, the Bhuyans came back again to the tope, on receiving information that Patra''s men had come and assembled near the banyan tree, a furlong away from the tope. I can do no better than quote from the evidence of P.W. 3 to show what happened thereafter. P.W. 3 says as follows:

When we saw that they (the accused) were coming armed, we did not,run away as we thought that they would not come to the tope. Sivaram (one of the deceased Bhuyans) enquired from them why they had come to the tope. They said that they had been deputed by Patras to pluck mangoes. Both parties then abused each other. I cannot say why the Patras were claiming the right to the rhangoe3. Sibaram said that we would not allow the mangoes to be plucked from the trees. They told Sibaram that the latter had no right to pluck the mangoes and asked Sibaram to leave the place. About 16 persons had entered in the disputed land at the time. Hadia and Satyabadi (two of the appellants) said that the tope belonged to them and the Patras, and that Mohan and Sibaram should go away. Soon after the occurrence took place.

This evidence clearly shows that the Bhuyans were the aggressors. Earlier in the morning, they had committed theft of mangoes, and had ploughed a portion of the land. They came back again, and clearly committed trespass in entering upon the tope and challenging the other side to a fight. As a matter of fact, on the evidence of P.W. 8, it appears that the Patra''s men showed some forbearance, inasmuch as they asked Sibram and Mohan not to prevent them from plucking mangoes from the tope which belonged to them. Sibram and Mohan would not listen, on the contrary, they challenged the Patra''s men to come and pluck mangoes at their risk. This evidence of P.W. 3 is further supported by other evidence in the record. Arakhita Gowda (P.W. 10) said that the Bhuyans at first stood in the tope, and they called the Patras to Badatotta to pluck mangoes. Before the committing Magistrate, this very witness had said that the five Bhuyans called the Patra''s men who were standing under the banyan tree. There is also evidence in the record to indicate that the Bhuyans prevented Patra''s men from plucking mangoes from their own tope.

That being the position, it is very probable that the Bhuyans first started the assault when Patra''s men came to their own tope and wanted to pluck mangoes. As a matter of fact, the finding of the learned Sessions Judge as respects the charge u/s 302 read with Section 149, Penal Code, clearly gives the appellants the right of private defence. The learned Sessions Judge himself appears to think that the assault was first started by the Bhuyans, and the appellants hit back in self-defence. Some of the injuries on two of the appellants were incised wounds caused with sharp weapons. Hadia Sabat (appellant 5) had sixteen injuries, ten of which were incised wounds. The learned Sessions Judge has said in his judgment that the appellants might have hit back in self-defence when there was apprehension of death or grievous hurt to men on their side. On this finding the appellants are entitled to an acquittal.

The learned Advocate-General for the Crown referred to the case in Matte Mandal and Others Vs. Emperor, . the facts of that case are, however, very different from the facts of the present case. It is not the law that the rightful owner in peaceful possession of a piece of property must run away, if there is an actual invasion of his right and an attempt on his person. A number of cases relating to the right of private defiance of person and property have been reviewed in Satnarain Das and Others Vs. Emperor, . It has been pointed out there that there are cases in which the person in possession of property is entitled to defend himself and his property by force and to collect such numbers and such arms as are necessary for that purpose, if he sees an actual invasion of his rights, which invasion amounts to an offence under the Penal Code, and when there is no time to get police help. It is lawful for a person, who has seen an invasion of his rights, to go to the spot and object. It is also lawful for such person, if the opposite party is armed to take suitable weapons for his defence : vide the case in Ramsagar Gope and Others Vs. Emperor, . In the particular case before us, the Bhuyans had actually invaded the right of the appellants by going on to the tope and openly challenging the other side to a fight. Further-more, the evidence in the record gives rise to the probability that the attack was first made by the Bhuyans. In such circumstances, the appellants are clearly protected by the right of private defence of person and property.

The learned advocate for the appellants also raised the question of identification of each one of the appellants. In the view which we have taken of the case as a-whole, it is unnecessary to go into the question of identification of each one of the appellants. The re* suit, therefore, is that the appeal succeeds and the conviction and sentences passed against the appellants are set aside. They are acquitted, and it is directed that they be discharged from their bail bonds.

Sinha, J.

I agree.