Sikhar Behera Vs. State of Orissa [1993] INSC 391 (28 September 1993)

Reddy, K. Jayachandra (J) Reddy, K. Jayachandra (J) Ray, G.N. (J)

CITATION: 1994 SCC Supl. (1) 493 JT 1993 Supl. 341 1993 SCALE (3)899

ACT:

HEAD NOTE:

The Judgment of the Court was delivered by K. JAYACHANDRA REDDY, J.- There are 14 appellants. They along with 25 others were tried for offences punishable under Sections 302, 302/34, 302/149, 232, 324 and 324/149 IPC. The trial court convicted 16 of them and acquitted the rest. On appeal, the High Court acquitted two of them namely A-2 and A-7 and convicted the rest. The 14 convicted accused have preferred this appeal.

2. The prosecution case is as follows. The accused, two deceased persons and the material witnesses belong to villages Khejuria and Dimirisena. There was a long-standing dispute between the two parties regarding possession of the lands belonging to the deity installed at village Dimirisena. The deity owns 150 acres of lands out of which 100 acres were in possession of the tenants and the remaining 50 acres were being let out for bhag cultivation annually. The prosecution party claims that 40 families belonging to their party were in possession of those 50 acres of lands. Indra Kumar Patnaik, a trustee, entrusted the management of the affairs of the deity and its properties to the villagers of Dimirisena to which the prosecution party mainly belongs. There were Section 145 CrPC proceedings and a compromise and since then the prosecution party has been in possession of the land. The present dispute relates to the lands of the deity which are locally known as Panchamania lands, an area of 2.04 acres.

In one of the plots, paddy was cut and just before the present occurrence, a proclamation under Section 144 CrPC was issued and both parties were restrained from going to the fields. The order under Section 144 was served on some of the accused and a notice under Section 107 CrPC also was served on the accused as to why they would not be called upon to execute bonds for keeping peace. On November 28, 1974, PW 5 ASI went to village Dimirisena for serving the order under Section 144 and the notice under Section 107 on some of the other accused persons. When PW 5 read out and explained the contents of the order to the members of the prosecution party and wanted to serve the notice, but they refused to accept the same. The members of the accused party also refused. After refusing to receive the notice, a group of about 20 to 30 members of the prosecution party went to cut paddy from the Panchamania lands. Subsequently a group of about 15 persons of the prosecution party went towards the said lands for carrying the paddy sheaves.

While the second group had proceeded up to the Kalapatriri burial ground, they found that a group of 25 persons of the accused party going there with lathis, bhalis, tentas and other deadly weapons. The party was led by Mahant Gobinda Das. At the same time another group of 50 persons of the accused party came armed with various deadly weapons. The members of the accused party surrounded the members of the prosecution party. Mahant Gobinda Das fired a shot from the gun which hit Kulamani Behera (deceased 1), a member of the prosecution party and he fell down on the ground. Then Gobinda Das snatched away a tenta from the hand of acquitted accused Chhaila Samal and stabbed deceased 1. Thereafter other persons assaulted him with deadly weapons as a result of which he died on the spot. When Kunja Samal (deceased 2), came to the rescue of deceased 1, he was stabbed by A-16 as a result of which he fell down on the ground. Some of the other accused persons also assaulted deceased 496 2 as a result of which he became unconscious and subsequently died. In the course of the same incident, PWs 2, 3, 4, 6, 7, 8 and 9 also received several injuries. PW 5, ASI of Police, who was present on the spot, sent a report through a village servant on the basis of which a case was registered. All the injured persons were brought to Brahmagiri Hospital and the Medical Officer, PW 11 gave first aid and sent all of them to District Headquarters Hospital at Puri. PW 11 recorded Ex. P-4, the dying declaration of Kunja Samal, deceased 2. He also examined the injured witnesses. Later postmortem was conducted over the dead bodies of the two deceased. The accused were arrested.

3. Daitari Behera, one of the accused persons, also gave a report on the basis of which a counter case was registered against 63 persons belonging to the prosecution party including the injured witnesses. In that case 40 persons were convicted under Sections 148, 324/149 and 323/149 IPC.

Coming to the present case, the trial court relied on the evidence of the injured witnesses and discussed their evidence in respect of each of the accused persons and ultimately held that 16 of them were members of the unlawful assembly and accordingly convicted the 16 accused as mentioned above and sentenced each of them to undergo imprisonment for life. In the trial court, the convicted accused admitted their presence but asserted that they were in possession of the disputed lands and raised paddy thereon and coming to know that the prosecution party armed with deadly weapons were coming to cut the paddy forcibly, they also went towards the paddy fields. Seeing them the prosecution party attacked them and inflicted injuries on two of the accused persons. Having examined this plea, the trial court held that the plea of the accused persons cannot be relied upon to determine as to how the occurrence took place. The trial court also noted that the ASI, namely, PW 5, gave a different story but the same can be relied upon as he was an independent witness. According to PW 5's version and as accepted by the trial court, the prosecution party had already got engaged in cutting paddy and seeing the accused party coming, the prosecution party ran towards them carrying their deadly weapons and there was a fight between both the parties. The learned trial Judge, however, found that the fight between the parties was not a sudden fight and that the parties went to the lands being armed with deadly weapons and each party had an intention to fight with the other. Then the trial court proceeded to consider whether the accused party could get benefit of the right of private defence of property and person. The trial court held that there is no clear proof that the accused persons were in actual possession of the disputed lands. The trial court further observed that some members of the accused party received injuries which were not explained by the prosecution. Ultimately, the trial court held that the accused were members of the unlawful assembly and they were responsible for causing the death of the two deceased persons and for inflicting a number of injuries on the witnesses which were more grave and serious in comparison to the minor injuries received by the accused party. In this view of the matter, the trial court held that the accused intentionally caused the death of the deceased persons with cutting weapons and they had gone to the fields with a view to fight and also assault the prosecution party and even to cause death and ultimately convicted the 16 accused whose presence was established.

4. The High Court also held that materials on record would show that neither party was in peaceful possession of the lands and there was a scramble 497 for the possession. The High Court also having examined the evidence of ASI, PW 5 observed that both parties were prepared for a fight and that members of the prosecution party went to the place of occurrence knowing that they would meet opposition and likewise the accused party also did the same thing. Having so observed, the High Court held that assemblies on both sides were unlawful and it is immaterial which party began the attack. In that view of the matter the High Court held that the accused had no right of private defence. The High Court also observed that each of the member of the unlawful assembly would be vicariously liable by virtue of application of Section 149 IPC.

Thereafter the High Court proceeded to consider the part played by each of the accused.

5. From the above-stated facts, it can be seen that in spite of declaration under Section 144 CrPC and initiation of proceedings under Section 107 CrPC, both parties heavily armed went to the fields. To that extent, the finding of the High Court that both sides formed into unlawful assemblies cannot be doubted. But the next and most important question would be whether every member of the unlawful assembly particularly of the accused party can be convicted under Sections 302/149 IPC on the ground that each one of them had the knowledge that death would be caused to the members of the other party and still continued to be the members of the unlawful assembly. As noted above, the High Court also at one stage observed that it was a free fight.

In a case of free fight, though to some extent, they were members of the unlawful assembly in the sense that they had the object to fight with each other, but it would be difficult to infer that each one of them shared the same object or had the knowledge. As can be seen from the records, the main object was to take possession of the lands and if necessary to meet any resistance or even to fight.

Admittedly a large number of persons on each side went to the fields. These 14 accused persons alone are convicted because their presence was otherwise established but while judging the common object of the unlawful assembly, there should be such convincing material that members in the entire crowd formed into an unlawful assembly and each one of them shared a particular common object. In the instant case the appellants are convicted because they also gave a report in the counter case and figured as witnesses.

However, in inferring the common object in a case of this nature, the attack on the deceased persons and the nature of the injuries inflicted would be relevant. PW 14, the Doctor who examined deceased I found only eight injuries. The first injury was a perforated wound on the right side of the back and two injuries were on the left side of the chest.

There was a deep perforated wound in the heart on the left side of the chest. The other injuries were not very serious. On dissection, the Doctor found the fracture of the left tibia, a deep perforated wound in the heart and injury to the lung. He opined that the two injuries to the heart and lung were fatal and that other injuries were not either individually or collectively sufficient to cause death in the ordinary course of nature. It can thus be seen that only two injuries inflicted by the accused persons were of serious nature which would indicate the nature of the attack and the object of the unlawful assembly. If all the convicted accused shared the common object, one would expect many more injuries. Of course, we are not laying down that every member of the unlawful assembly should participate in the actual occurrence but we are applying these tests only in view of the fact that the object of the unlawful assembly was only to fight. Likewise on deceased 2, PW 12, another Doctor found only seven injuries and that only 498 one injury on the stomach was sufficient in the ordinary course of nature to cause death. As a matter of fact, deceased 2 died on November 29, 1974 in the evening.

6. Learned counsel appearing for the appellants submitted that the accused had right of private defence to defend the property as well as their persons. In view of the findings of both the courts below that neither party was in peaceful possession of the lands in dispute and that there was a scramble for possession and that both parties were prepared for a fight and in fact fought, the accused cannot have a right of private defence. In such a free fight, the question of one party being aggressor may not arise.

However, the members of each party would be members of the unlawful assembly with the common object to fight. But the nature of the participation, the weapons used and the injuries caused would also be relevant to infer the nature of the common object. In the instant case, it is not safe to hold that the common object of the unlawful assembly was to commit murder and that everyone knew that and that the same would attract Section 302 IPC. But under the circumstances the accused armed with deadly weapons formed into an unlawful assembly with a view to fight with the other side and attacked them. One of the deceased received two fatal injuries and the other deceased received only one fatal injury. In such circumstances, the members of the unlawful assembly must be held to have knowledge that some of them are likely to cause injuries and thereby likely to cause death. In other words, they had the knowledge that at least an offence of culpable homicide was likely to be committed. Under these circumstances they can safely be convicted under Sections 304 Part 11 read with 149 IPC.

Accordingly the conviction of the appellants under Sections 302/149 and the sentence of imprisonment for life awarded thereunder are set aside. Instead they are convicted under Sections 304 Part II read with 149 IPC and each of them is sentenced to undergo seven years' RI. Other convictions and sentences are confirmed. Subject to this modification, the appeal is dismissed.

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