JUDGMENT
P.K. Misra, J.
1. The appellant assails the order of conviction under Section 304, Part-II, Indian Penal Code, and sentence of Seven years RX imposed by the Sessions Judge, Balasore, in S.T. No. 18 of 1996. The appellant and four others were prosecuted in the said case. AH the five were charged under Section 148, Indian Penal Code. The appellant and accused Madhu Siala were further charged under Section 302/34, Indian Penal Code, while the three other accused persons were charged under Section 302/349, Indian Penal Code. The four other accused persons were charged under Section 323 for voluntarily causing hurt to Sanatan Siala, whereas appellant was charged under Section 323/149, Indian Penal Code, for causing hurt to Sanatan Siala. To say the least, the charges framed were indeed very confusing. Be that as it may, all the other accused persons were acquitted of all the charges and the appellant alone was convicted under Section 304, Part II, Indian Penal Code, and was acquitted of all other charges.
2. The informant and the accused persons including the appellant are agnatic relations. The informant was claiming to be in possession of Ac. 0.09 decimals of land pertaining to Plot No. 119 in mauza Anantapur, but the accused persons got it recorded in their names during the consolidation proceeding by allegedly exercising fraud and a revision was pending before the Commissioner at the instance of the informant. On 19.10.1985 at about 9 A.M. the accused persons with a view to disturb the possession of the informant assembled over the disputed land and started putting fence over the same. The informant protested and uprooted two pegs from the fence. At that stage accused Madhu (acquitted) pushed the informant towards a Kochila tree and assaulted on the head of the informant whereafter accused Sambhu (acquitted) dealt a blow with a spade on the left leg. At that time, the deceased -mother of the informant – came running to rescue her son. Accused Ananta (acquitted) pushed her towards a Neem tree and accused Bidu (the appellant) picked up a bamboo lathi from the fence and dealt one blow on her head as a result of which she fell down. Written report was lodged by the informant on the same day at about 11 A.M. at Simulia Police Station alleging assault on himself and on her mother. A case was registered under Sections 147/148/149/325/324/323, Indian Penal Code. The informant and his mother were sent to Simualia P.H.C. for medical treatment. Subsequently, as the condition of the deceased became serious she was removed to Bhadrak Sub-Divisional Hospital, but she succumbed on the same day. Thereafter on completion of investigation, charge sheet was submitted alleging inter alia, commission of offence under Section 302, Indian Penal Code.
3. The accused persons denied their complicity and pleaded that the disputed land was under their possession. It was further pleaded that on the date of occurrence, the informant was uprooting the fence which had been put by them previously and when Saraswati Dei, mother of accused Bidu and Madhu, protested, she was assaulted by the informant. Banabali brother of accused Madhu and Bidu, also protested, but he was threatened. It has been pleaded that a false case has been foisted due to enmity.
4. The informant was examined as P.W. 1. P.Ws. 2 to 4 are other eye-witnesses. P.W.5 is the doctor who held autopsy on the dead body of the deceased and P.W. 6 is another doctor who had examined P.W. 1 in Bhadrak Hospital, whereas P.W.7 is the doctor who had examined P.W. 1 as well as the deceased at Simulia P.H.C. P.W. 3 is the Constable who identified the dead body. P.W. 9 is the S.I. of the Police, Bhadrak P.S. who held inquest and P.W. 10 is the Investigating Officer.
No witnesses had been examined on behalf of the accused persons.
5. The trial Court relying upon the evidence of P.Ws. 1 to 4 held that-accused Bidu dealt a lathi blow on the head of the deceased. The trial Court, however disbelieved the version of the very same witnesses regarding the assault on P.W. 1 and as such acquitted all the accused persons of the charges under Sections 323 and 148, Indian Penal, Code. The, trial Court held that since accused Bidu assaulted the deceased on the spur of the moment without any intention of causing death, he was liable under Section 304, Part-II, and not under Section 302, Indian Penal Code. Though the trial Court found that Saraswati Dei, the mother of the appellant and the co-accused, had sustained a simple injury on her head, there was no material to indicate that she had sustained the injury in course of the occurrence. The trial Court further held that even if it is held that the accused persons were in possession of the disputed land, accused Bidu was not justified in assaulting the deceased with a bamboo lathi on the head as she was not interfering with the possession of the accused persons and as such right of private defence of property was not available to the accused.
6. In this appeal, the learned counsel for the appellant contended that the benefit of right of private defence of, property as well as person should have been extended to the appellant. In the alternative, it is submitted that even if right of private defence is not available, at the worst, it can be said that an offence under Section 325 and not under Section 304, Part – II, Indian Penal Code, had been made out.
7. From the discussion of the materials on record regarding possession, t is apparent that the trial Court prima facie came to the conclusion that the accused persons were in possession. The land had been recorded in the names of the accused persons during the consolidation proceeding. It is no doubt true that a revision at the instance of the informant was pending, but prima facie, it must be held that the accused persons were in possession of the disputed land. As per the prosecution case itself, the accused persons were in the process of putting the fence around the disputed land, whereas according to the plea of the accused persons they had already put a fence. Be that as it may, it is apparent that the dispute started when P.W. 1 uprooted two bamboo pegs from the fence. In other words, it was the prosecution party which was the aggressor or the trespasser. Though the trial Court held that Saraswati. the mother of the appellant and co-accused Madhu. sustained injury, the plea of right of private defence of person was turned down on the ground that Saraswati was not an accused in the case and there was no evidence to the effect that she sustained injury in course of the occurrence and as such the prosecution was not bound to explain the injury on her person. The accused persons claimed that Saraswati was injured at the time of the occurrence. The said plea of the accused persons appears to be reasonably probable specially in view of the police requisition on the basis of which she was examined by the doctor. Though some of the prosecution witnesses had stated about her presence at the time of occurrence before the police, in Court they have denied to have made any such statement. In other words, it is apparent that some of the prosecution witnesses were trying to suppress the factum of presence of Saraswati at the time of occurrence. The trial Court has disbelieved about the manner of assault on P.W. 1. In other words, the genesis of the occurrence as spoken to by the prosecution witnesses has been discarded. When the accused persons were in possession and P.W. 1 was a trespasser and the quarrel started at that stage. It cannot be said that the appellant had no right of private defence of person and property as against the mother of the informant who was trying to come to the rescue of the informant, specially when it is found that at the time of occurrence, Saraswati, the mother of the appellant, was also injured. In the absence of a clear picture from the side of the prosecution witnesses, it is prudent to give the benefit of doubt to the appellant and to come to a conclusion that he had exercised right of private defence of property as well as person. The appellant had given only a single blow with a bamboo peg available at the spot. It cannot be said that he had used more force than necessary specially in the background of the fact that the injury on Saraswati, mother of the appellant, was on the forehead, a vital as well as vulnerable part of the body. In such view of the matter, the order of conviction and sentence is liable to be set aside.
8. In view of such finding, the alternative contention of the appellant that the offence, if any, was one under Section 325 and not under Section 304, Part – II, Indian Penal Code, need not be considered, though, prima facie , such contention appears to be sustainable. In this connection, it is also not necessary to consider the application filed on behalf of the informant for compounding the alleged offence. It may be stated that if the offence is held to be one under Section 304, Part – II, Indian Penal Code, the same is not. compoundable, and if the offence is held to be one under Section 325. the same is compoundable with the permission of the Court. However, since such composition can be effected only by the person to whom hurt is caused, the question of compounding cannot arise in this case, as the injured person is dead.
Accordingly, the appeal is allowed and the order of conviction and sentence is set aside.