JUDGMENT
Sujit Barman Roy, C.J.
1. Both the appeals are being disposed of by this common judgment as these are directed against the same judgment dated 6.10.1994 passed by the Second Additional Sessions Judge. Puri in Session Trial Case No. 41/335 of 1990 convicting the appellant Jambeswar Pal under Section 302 as well as under Section 323 of the Indian Penal Code and sentencing him accordingly to suffer life imprisonment and rigorous imprisonment for six months respectively. The other appellants namely, Prahallad Pal, Narayan Pal, Umakanta Pal and Dhaneswar Pal were also convicted under Section 326/34 and under Section 323/34 of the Indian Penal Code. They were sentenced to suffer rigorous imprisonment for seven years in respect of their conviction under Section 326/34 I.P.C. They were also sentenced to suffer rigorous imprisonment for six months in respect of their conviction under Section 323/34 I.P.C. with a direction that all these sentences would run concurrently.
2. The prosecution story in brief is that on 23.6.1988 at about 5 P.M., P.W. 8, Maheswar Pal lodged a written complaint before the Asst. Inspector of Police, Gop Police Station at Charichhak Primary Health Centre. In the said complaint, the informant inter alia alleged that on 22.6.1988 at about 4 P.M. he was in his house. At that time, he saw that the appellant Dhaneswar Pal had climbed the coconut tree situated on the back side of the house of the informant and was about to pluck coconuts. Jambeswar Pal was seen holding a sharp cutting weapon locally called “Farsa”. The remaining appellants apart from other persons mentioned therein were also present at that place and were holding lathis in their hands. Seeing this the informant went to the spot and asked the appellants as to why they were plucking coconuts as on the 30th of that month the case between them would be decided on the question who could pluck the coconuts? Soon after that the appellant Jambeswar Pal assaulted the informant with Farsa on his head and nose. Soon after that the son of the informant went to the field to bring other brothers of the informant. Both the brothers came and asked the appellants party as to why after plucking coconuts they have injured the informant ? Despite this, the appellants scolded and hackled them. The informant’s younger brother inflicted injury on the left leg finger and head of Chhabi Pal (since deceased). The other appellants namely, Narayan Pal, Pahali Pal hackled them with lathis: Accused Pahali Pal, Dhruba Pal, Basanta Pal, and Raju Pal hackled Rabi Narayan Pal (P.W.7) with lathis. Noticing this incident, when wives of informant and deceased came for help, they were also beaten up with lathis by accused Narayan Pal, Basanti Pal and Dhruba Pal. On the basis of the said complaint, F.I.R. under Sections 341/323/324/326/307/34 I.P.C. was registered at the Gop Police Station against the appellants and other accused persons named therein. On conclusion of usual investigation, police submitted charge sheet against the appellants under Sections 302/326/324/307/34 I.P.C. In usual course the case was committed to the Court of Sessions Judge, Puri. On transfer the case was tried before the trial Court. On perusal of the materials on record, learned trial Court framed charges under Sections 302/34, 323/34, 324/34 and 307/34 I.P.C. against the appellants and they pleaded not guilty to the said charges. In course of trial in all. 14 witnesses were examined on behalf of the prosecution. None was examined on behalf of the appellants. On conclusion of the trial, the appellants were convicted and sentenced as already stated.
3. We have perused the evidence on record. We have also heard Mr. Dhal, learned counsel for the appellants as well as Mr. Mohanty, learned Addl. Government Advocate. Both of them have taken us through the evidence on record and also statements of the appellants recorded under Section 313 Cr.P.C. In course of their examination before the trial Court under Section 313 Cr. P.C., the appellants simply denied the prosecution story as alleged. However, in course of cross examination of prosecution witnesses, some suggestions were given from which it appears that plea of right of private defence of person was set up on behalf of the appellants.
4. Undoubtedly, there are large number of eye witnesses examined in this case. Some of the witnesses suffered injuries in course of the same incident. P.W. 8 being the informant Maheswar Pal is also an eye witness and he himself suffered some injuries at the hands of the appellants. Apart from P.W. 8, P.W. 1. Jyosna Pal being the wife of the deceased, P.W. 2, Kunjalata Pal being the wife of P.W. 8, P.W. 3, Sailabala Pal, P.W. 6, Manoj Kumar Pal being the son of P.W. 8 and P.W. 7 Rabinarayan Pal were examined as eye witnesses in this case for the prosecution. Among six witnesses, apart from P.W. 8, Maheswar Pal, P.W. 2 Kunjalata Pal and P.W. 7 Rabinarayan Pal are injured witnesses as they suffered some injuries in the very same occurrence. After going through the evidence we are left with no doubt that the appellants were indeed involved in the incident and there were injuries suffered by the deceased and other prosecution witnesses. It is the prosecution case that incident occurred when appellants party were plucking coconuts from the coconut trees situated on the land of the deceased. They consistently claimed that prosecution party possessed the land in question where the coconut trees were situated. It is also the case of the prosecution witnesses that the appellants party were aggressors and assaulted the deceased and other witnesses as already stated. However, it appears from the evidence on record that P.W. 14 Kalakar Saha is the investigating officer of the case. He has clearly stated in his evidence before the trial Court that there were in all nine coconut trees on the spot. He examined all, relevant documents filed by the parties and he ultimately ascertained upon enquiry and upon comparison of the documents filed by the respective parties that all the coconut trees were situated on five and half* decimals of land and this land was in possession of the appellants. It was part of total twenty four decimals of land. He had also stated this in Ext. F being the forwarding report under which he forwarded the accused persons before the Court of learned Judicial Magistrate. This fact could not be denied by the learned Addl. Government Advocate that the coconut tree in question were situated on a piece of land which was in the possession of the appellants on the date of occurrence and therefore, the appellants had lawful right to pluck the coconuts from those coconut trees.
5. Apart from the aforesaid, the investigating officer further stated in his evidence that in course of investigation of the counter case, he sent the appellants Prahallad Pal. Jambeswar Pal, Narayan Pal and Umakanta Pal for medical examination by issuing appropriate requisition. On their examination at Nayahat hospital, the concerned medical officer issued injury reports from the said hospital to P.W. 14. Ext. F is the relevant requisition issued by the Investigating Officer of the case whereby he sent up the aforesaid appellants to the hospital. The injury reports have been marked in this case as Exts. B, C, D and E. From the aforesaid report, it appears that all these injured appellants were forwarded to the hospital under arrest on 23.6.1988. Thereafter, on 6.8.1988 after their discharge from the hospital all those appellants were produced before the learned Judicial Magistrate under a forwarding report. Therefore, about a month and half the appellants had undergone medical treatment as indoor patient in the hospital. We have also examined the relevant injury report. We find that the injuries were grievous as recorded by the concerned medical officer under whom the appellants had undergone treatment. Those injuries were inflicted by sharp cutting weapon. One injury on the head of the appellant Jambeswar Pal was of grievous nature.
6. Prosecution witnesses and more particularly the alleged eye witnesses have not explained as to how the appellants came to sustain such serious injuries inflicted by sharp cutting weapon. It is therefore, apparent that the prosecution witnesses did not divulge the full truth about the incident in question. For obvious reason, we are not going to discuss the evidence on record elaborately as we are of the view that there is no doubt that the appellants were indeed involved in the incident and they themselves were the authors of the injuries sustained by the deceased and some of the eye witnesses. It is equally true that the incident occurred on the land of the appellants when the prosecution party inferred with lawful right of the appellants to pluck coconuts from their own trees. On the basis of the evidence on record, we are unable to come to any conclusion unhesitatingly that the appellants themselves were the aggressors, and the possibility that the prosecution party itself was the aggressors cannot, be ruled out. In the context of the nature of the injuries sustained by the appellants at the hands of the prosecution party and in view of other facts of the case, we are left with not even the slightest doubt in our mind that the appellants at that time had apprehension of death or grievous hurt would be otherwise the consequences of the aggression upon them by the prosecution party. Law has given them a valuable right not to flee away like cowards in the face of danger. Law expects our citizens to face danger manfully. Law does not recognise cowardice as a virtue.
7. As they had apprehension of death, they had every right to inflict injuries upon their aggressors including death. Therefore, it appears to us that the appellants had all justification to inflict injuries suffered by the deceased and sonic of the eye witnesses. It is true that the appellants have not pleaded that they acted in exercise of their right of private defence of person. But accused has no obligation to expressly take any such plea. When evidence discloses that appellants acted in exercise of self-defence of persons, they are entitled to benefit of the same irrespective of whether they adopted plea of private defence in course of the trial. This is settled position of law. In the circumstances, we hold that by causing death of the deceased and inflicting injuries to some of the prosecution witnesses, the appellants did not commit any offence at all. They were fully justified in the circumstances of the case to inflict injuries which resulted in death of the deceased and also injuries on some of the eye witnesses.
8. In view of the aforesaid, we are also constrained to hold that the impugned judgment of conviction and sentence of the appellants cannot be sustained. Accordingly, we allow these appeals and set aside the impugned judgment of conviction and sentence. We further direct that the appellants, if they are still in jail, shall be forthwith set at liberty.
R.K. Patra, J.
9. I agree.