Jujesthi Bhoi Vs. State of Orissa - Court Judgment

R.N. Biswal, J.

1. The appellant has preferred this appeal against the judgment and order dated 28.11.1989 passed by the Addl. Sessions Judge, Bargarh in Sessions Trial No. 18/7 of 1989 wherein while acquitting the co-accused he convicted the accused-appellant for the offence under Section 325 of I.P.C. and sentenced him thereunder to undergo R.I. for one year.

2. The laconic fact of the prosecution case is that on 23.7.1988 P.Ws. 3, 4 and 7 sowed paddy in plot No. 2244 appertaining to Khata No. 176 covering an area of Ac. 0.12 decimals locally known as Budhendoli/Talidoli in mouza Kebad. In the night, since there was heavy down pour of rain, on the day break, all of them went to the said land to drain out water, if accumulated and on reaching there saw accused Somanath Bhoi ploughing it, while accused Sabitri Bhoi, Indrajit Bhoi and accused-appellant Jujesthi Bhoi standing on the ridge. P.Ws. 4 and 7 protested the highhandedness of the accused persons and prevented accused Somanath Bhoi from ploughing further, by standing in front of the plough team. At this, accused-appellant Jujesthi Bhoi being armed with an axe, rushed into the land and inflicted one blow on the cheek and another blow on the left hand of P.W.4, by the sharp side of the axe. To rescue his brother, when P.W.7 went near him, accused-appellant Jujesthi Bhoi and accused Indrajit Bhoi assaulted him with axe, while accused Sabitri Bhoi and Somanath Bhoi assaulted him indiscriminately with Bhara. Seeing this ghastly sight, P.W.3 rushed to his village and requested some villagers including P.Ws. 1 and 2 to rescue P.Ws. 4 and 7. On their arrival at the spot, they saw P.Ws. 4 and 7 lying on the Budhendoli with bleeding injuries, and one axe, two Bharas and a spade lying near them at sixes and sevens. P.Ws. 3 with the help of P.Ws. 1 and 2 and some others carried both the injured persons and the axe, Bharas and spade to Barpali Police Station, where P.W.3 orally reported the incident to the O.I.C., which he reduced into writing and treated it as F.I.R. As the allegations contained in the F.I.R. revealed a cognizance case, the O.I.C. registered it under Section 307 of I.P.C. and took up investigation. In course of investigation, he seized the axe, two Bharas and the spade (M.Os. I to IV respectively) produced before him at the police station and prepared the seizure list in respect thereof, visited the spot, got the disputed land demarcated by the R.I. of Agalpur, (P.W.6), sent the injured persons to hospital, arrested the accused persons, forwarded them to Court and after completion of investigation finding a prima facie case under Sections 447/307/34 of I.P.C. submitted charge sheet against all of them, thereunder. After the case was committed to the Court of Sessions, charge was framed under Sections 307/447 read with Section 34 I.P.C. against all the accused persons, under Section 325 I.P.C. against accused Jujesthi and under Sections 325/34 I.P.C. against accused Jujesthi Bhoi and Indrajit Bhoi, The accused persons pleaded not guilty and faced the trial.

3. In order to prove its case prosecution examined 10 witnesses, of whom P.Ws. 1 and 2 are post occurrence witnesses, P.W. 3 is the informant, P.Ws. 4 and 7 are the injured persons, P.W. 5, 8 and 9 are doctors, P.W.6 is the R.I. and P.W.10 is the I.O. The defence did not choose to examine any witness.

4. After assessing the evidence on record, the trial Court, while acquitting the co-accused persons of all the charges and accused-appellant of the charge under Sections 307/447/34 of I.P.C., found him guilty under Section 325 of I.P.C. and convicted and sentenced him thereunder to undergo R.I. for one year as stated earlier. Being aggrieved with the said order, the accused-appellant has preferred this appeal.

5. Learned Counsel for the accused-appellant submitted that disbelieving the evidence of P.Ws. 3, 4, and 7, when the trial Court acquitted the co-accused persons of all the charges, it ought not have convicted the accused-appellant relying on their evidence. The maxim 'falsus is unfalsus in omnibus' (false in one thing, false in everything) is not a rule of practice in India. Hardly, one comes across a witness whose evidence does not contain a grain of untruth. So, the duty of the Court is to scan the evidence carefully and separate the grain from the chaff. In the case at hand, it transpires from the evidence of P.Ws. 3, 4 and 7 that the accused-appellant inflicted an axe blow on the cheek and another blow on the left hand of P.W.4. The evidence of P.W.5, the lady Asst. Surgeon of Barpali Hospital shows that she noticed one incised wound on the cheek and another injury of similar nature on the forearm, just below the elbow joint of P.W.4. She also noticed bone pieces around the second injury. Nothing could be elicited from her, during cross examination, to disbelieve her testimony. P.W.8, the Orthopaedic Specialist attached to Bargarh Hospital examined P.W.4 on 24.7.1988 and deposed that he found one incised cut injury, below the elbow joint alongwith fracture on the under line bone, besides other injuries. Similarly, P.W.9 the Orthopaedic Specialist of Sambalpur District Headquarter Hospital, who examined P.W.4 on 1.8.1988 also deposed that he found one infected injury at the posterior aspect of his left forearm with evidence of fracture of both the bones. The evidence of P.Ws. 3, 4 and 7 having been corroborated by medical evidence, the trial Court was just in holding that the accused appellant assaulted P.W.4 with an axe. P.W.7 sustained as many as seven incised injuries as found from the evidence of the Lady Asst. Surgeon, P.W.5. She proved the injury report Ext. 2 It was alleged that the accused-appellant and accused Indrajit Bhoi were the authors of those injuries. P.W.3 saw the accused-appellant inflicting one axe blow on the back of P.W.7, which relates to injury No. 1 in Ext. 2 and thereafter he rushed to his village and as such there was no scope for him to see further assault on P.W.7 by any of the accused persons. So, the trial Court held that the accused-appellant was the author of injury No. 1 in Ext.-2 (injury report) only and disbelieved the evidence of P.W.3 and 7 that accused-appellant and Indrajit also caused the other injuries. It rightly did not rely upon the evidence of P.W. 4 that he saw accused Indrajit and accused-appellant assaulted P.W. 7, since, it is in the evidence on record that P.W. 4 lost his senses on being assaulted, whereafter P.W. 7 was allegedly assaulted. P.W. 3 is the only eye witness to depose that Sabitri and Somanath assaulted P.W. 7. As per his own testimony, when he left the spot for his village after the accused-appellant inflicted one axe blow on P.W. 7, there was no scope for him to see accused Sabitri and Somanath assaulting him. Moreover, P.W.7 himself did not in any way implicate these two accused persons in the alleged assault. For all these the trial court was justified in acquitting the co-accused persons. The submission of learned Counsel for the accused-appellant that the trial Court ought to have acquitted the accused-appellant, when it acquitted the co-accused persons basing on the evidence of same witnesses cannot be tenable.

Learned Counsel for the appellant, further submitted that there is evidence on record that accused persons including appellant were in long possession of the disputed land. P.Ws. 3, 4 and 7 sowed paddy in that land on 23.7.1989 in their absence. On the next day, when accused Somanath was cultivating the said land and the other accused persons including the appellant were standing on the ridge, P.Ws. 4 and 7 forcibly trespassed into that land and prevented accused-Somanath Bhoi from ploughing it, by standing in front of the plough team. So, by exercising his right of private defence of property as laid down under Section 97 of I.P.C., even if accused-appellant inflicted some injuries on P.Ws. 4 and 7 to oust them from the land in question, he cannot be liable for any offence. Learned Counsel for the appellant, furthermore, submitted that the finding of the trial Court that since there was knee-deep water and no crop in the land in question, the right of private defence of property could not be raised, is absolutely wrong. Because this right was available to the accused-appellant when P.Ws. 4 and 7 made criminal trespass to the land, which was in long possession of the accused persons including the appellant. Learned Addl. Standing Counsel submitted that as the plea of right of private defence of property was not taken by the accused-appellant, either during cross examination of prosecution witnesses or while being examined under Section 313 Cr.P.C. now, the argument advanced by the learned Counsel for the appellant cannot be tenable under law.

There is no dispute that Kapila, Dhakhila and Sara (P.W.3) were three brothers. Accused Sabitri is the widow, and accused Indrajit and Jujesthi (appellant) are the sons of Kapila, while accused Somanath is the son of Indrajit. It transpires from the evidence of P.W. 3 that he himself, Kapila and Dhakhila got separated, both in mess and estate about 40 to 50 years back and Budhendoli with some other land fell to his share. During cross-examination he stated that he was not able to cultivate Bundhendoli land since the date of partition, as accused persons including the appellant had been threatening to assault him, in case he cultivated it. Accused Somanath was 16 years, Indrajit 40 years and the appellant Jujesthi was 26 years old by the date of alleged occurrence, as found from the charge sheet submitted by the I.O. The evidence of P.W. 3 that he is not able to cultivate the disputed land since after partition about 40 to 50 years back, because of threat given by those three accused is next to impossibility, because none of them was born during the time of partition between P.W. 3 and his brothers. So it shows that the father of accused Indrajit and accused-appellant Jujesthi was cultivating the disputed land and after his death the accused persons stepped into his shoes. During cross examination it was elicited from P.W.3 that for last several years accused persons, including the appellant had been possessing the disputed land per force. So, it appears from the evidence of P.W. 3 himself that the accused persons including appellant were in settled possession of the land in question. It is the established principle of law that no one, including the true owner has right to dispossess even a trespasser by force, if the trespasser is in settled possession of the land. As laid down under Section 97 of I.P.C. every person has right, subject to the restrictions contained under Section 99 of the said Code, to defend the property, whether movable or immovable, or himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass. In the present case, the accused persons including the accused-appellant were in settled possession of the disputed land. P.Ws. 4 and 7 forcibly entered into that land and prevented Somanath Bhoi, who was ploughing it by standing in front of the plough team and thereby both of them committed the offence of criminal trespass. So, the appellant had every right to oust them from that land. The finding of the trial Court that since there was no crop in the disputed land, the question of right of private defence of property did not arise was wrong. The contention of learned Addl. Standing Counsel that the plea of right of private defence of property having not been taken by the accused-appellant either during cross-examination or while he was being examined under Section 313 of Cr.P.C. that plea cannot be taken subsequently, is not tenable under law. It is not a must for an accused to take the plea of right of private defence of property from the beginning. He can very well rely on the evidence of prosecution and the Court cannot ignore the materials on record simply because he had not taken such a plea, Court can examine this aspect, if the right of self-defence can be probabilised. Accordingly, it is held that the accused-appellant can take the plea of right of private defence of property at the stage of argument of the case and in fact argument was advanced in this regard before the trial Court. As stated earlier, the right of private defence of property granted under Section 97 is subject to the restriction contained under Section 99 of I.P.C., where it is provided that such right in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose. In the case at hand, as stated earlier, the trial Court held the accused-appellant to be responsible for the two injuries sustained by P.W.4 and only the first injury in Ext. 2, sustained by P.W. 7. Out of the two injuries sustained by P.W.4, one was simple in nature and the other one was a fracture. The first injury in Ext. 2 was a simple incised wound. As laid down under Section 105 of I.P.C. the right of private defence of property continues as long as the offender continues the commission of criminal trespass. If the offender retreats back from the land, then right of private defence of property cannot be exercised from that moment. In the case at hand, as found from the evidence of P.Ws. 1, 2 and 3 they saw both the injured (P.Ws. 4 and 7) lying on the disputed land. If also transpires from the evidence on record that P.Ws. 4 and 7 were assaulted inside the said land. As such, it cannot be said that the accused-appellant assaulted them even after they retreated back from it. Even though the accused-appellant and the co-accused were in settled possession of the disputed land, P.Ws. 3, 4 and 7 sowed paddy over it on 23.7.1988. On the next date, while the accused party was cultivating it, they were forcibly prevented therefrom. No doubt, as per Section 99 of I.P.C. no harm should be caused other than what is necessary for the self-defence of body or property, but the force used should not be weighed in golden scale. As found from the evidence on record, after P.Ws. 3 and 4 fell down being assaulted, the accused-appellant even though was armed with an axe did not assault them.

Taking into consideration, all the facts and circumstances of the case and the nature of injuries sustained by P.Ws. 4 and 7, I am of the view that accused-appellant did not exceed his right of private defence of property so as to make him liable for a criminal offence.

Accordingly, the Crl. Appeal is allowed and the order of conviction and sentence passed by the trial Court are hereby set aside and the bail bonds of the accused appellant be cancelled.