Orissa High Court
Nitya @ Nityananda Behera vs State Of Orissa on 1 September, 2020
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
Criminal Appeal No. 195 of 1988
From the judgment and order dated 21.07.1988 passed by
Sessions Judge, Dhenkanal in S.T. Case No.53-D of 1986.
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1. Nitya @ Nityananda Behera
2. Madhia @ Madhaba Behera ...... Appellants
-Versus-
State of Orissa ...... Respondent
For Appellants: - Mr. Saktidhar Das
(Senior Advocate)
For Respondent: - Mr. Lalatendu Samantaray
Addl. Govt. Advocate
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing: 27.08.2020 Date of Judgment: 01.09.2020
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S. K. Sahoo, J. The appellants Nitya @ Nityananda Behera and
Madhia @ Madhaba Behera faced trial in the Court of learned
Sessions Judge, Dhenkanal in S.T. Case No. 53-D of 1986.
Appellant no.1 Nitya @ Nityananda Behera was charged under
section 302 of the Indian Penal Code on the accusation of
committing murder of Raghaba Behera (hereafter 'the deceased')
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on 18.02.1986 at about 2.00 p.m. at village Dighi under
Kamakhyanagar police station in the district of Dhenkanal and
appellant no.2 Madhia @ Madhaba Behera was charged under
section 324 of the Indian Penal Code for voluntarily causing hurt
to Rohita Behera (P.W.2) at the same time, place and during
course of same occurrence.
The learned Trial Court vide impugned judgment and
order dated 21.07.1988 found the appellant no.1 Nitya @
Nityananda Behera guilty under section 304 Part-II of the Indian
Penal Code and sentenced him to undergo rigorous
imprisonment for three years and appellant no.2 Madhia @
Madhaba Behera was found guilty under section 324 of the
Indian Penal Code and he was sentenced to undergo rigorous
imprisonment for six months.
The appellants preferred this criminal appeal on
05.08.1988 and the appeal was admitted on 18.08.1988 and on
26.08.1988 the appellants were directed to be released on bail,
however taking into account the sentence imposed on the
appellant no.1 for three years on his conviction under section
304 Part-II of the Indian Penal Code, this Court issued a notice
of enhancement of sentence against appellant no.1.
3
2. The prosecution case, as per the first information
report (Ext.8) lodged by Rohita Behera (P.W.2) on 19.02.1986
before the officer in charge, Kamakhyanagar police station is
that there was a Jamun tree in the Bagayat land of Talatota in
village Dighi which was in joint possession of five shareholders.
On the request of the villagers of Dighi, it was agreed upon by
the shareholders to cut the tree and utilise its trunk in the
making of doors and windows of village high school and the
branches to be divided equally between the shareholders.
Accordingly, the tree was cut under the supervision of the
deceased few days prior to the occurrence. On 18.02.1986 at
about twelve noon, the appellants removed a cartload of
branches to their house claiming the entire tree to be their
property. At about 2 p.m., the appellants again came to the spot
with a cart. P.W.2 along with the deceased, Jaladhar Biswal
(P.W.4) and Nandakishore Behera (P.W.5) also arrived at the
spot with a cart to take their respective share of branches. When
the appellants were confronted as to how they were trying to
take all the branches, they abused the deceased, P.W.2 and
others. When the deceased challenged them about the abusive
words hurled at them, the appellant no.1 Nitya @ Nityananda
Behera suddenly assaulted the deceased with the yoke (M.O.III)
of the cart on his head, as a result of which he fell down
4
becoming unconscious. P.W.2 came to the rescue of the
deceased but he was assaulted by appellant no.2 Madhia @
Madhaba Behera and given two blows with a tangia on his head
and neck for which he sustained injuries. The appellants left the
spot and at that time P.W.2 threw a tangia towards them which
hit on the back of the appellant no.1 Nitya @ Nityananda Behera.
After the appellants left the spot, Balram Behera and Sakhi Bewa
(P.W.3) arrived at the spot. P.Ws.4 and 5 brought water from
the river and tried to administer it to the deceased but the
deceased did not get back his sense. The deceased was first
brought near his house and then he was removed to Jiral
hospital where the Medical Officer asked to shift him to S.C.B.
Medical College and Hospital, Cuttack and accordingly, during
midnight the deceased was taken to Cuttack for treatment.
On the basis of such F.I.R., Kamakhyanagar P.S.
case no. 21 of 1986 was registered under sections 325, 326 read
with section 34 of Indian Penal Code against the appellants on
19.02.1986.
3. P.W.11 Muralidhar Behera, the officer-in-charge of
Kamakhyanagar police station after registering the F.I.R., took
up investigation. He examined the informant Rohita Behera and
issued medical requisition to the Medical Officer, Jiral Hospital for
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his examination. Then he proceeded to Jiral Hospital, examined
appellant no.1 Nityananda Behera and also issued medical
requisition to the Medical Officer, Jiral hospital to examine the
appellant no.1 as he had sustained injuries. Then P.W.11
proceeded to the spot in village Dighi where he seized some
vomiting substance mixed with blood and prepared seizure list
Ext.9 in presence of the witnesses. He also examined other
witnesses and on 19.02.1986 at 5.00 p.m., he seized one yoke
(M.O.III) being produced by Nandakishore Behera (P.W.5) as per
seizure list Ext.12 in presence of the witnesses. He also seized a
big trunk of the Jamun tree along with some branches of that
tree as per seizure list Ext.9. On that day, he also seized a
bullock cart at village Dighi on the village road as per seizure list
Ext.13. The deceased was declared dead at S.C.B. Medical
College and Hospital, Cuttack whereafter the doctor from
Casualty sent information to Mangalabag police station and
accordingly Mangalabag P.S. U.D. Case No.42 of 1986 was
registered and P.W.9 Umakanta Rout, A.S.I. of police was
directed to take up inquiry and he held inquest over the dead
body and prepared inquest report vide Ext.15 and then the dead
body was sent for post mortem examination and after post
mortem examination, the wearing apparels of the deceased were
brought to Mangalabag police station and a supplementary diary
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of the inquiry was prepared by P.W.9. After post mortem
examination, the dead body was brought to the village. The I.O.
(P.W.11) searched the house of the appellants and seized two
axes (M.Os.I and II) from their house under seizure list Ext.11.
On 20.02.1986 he arrested the appellants and forwarded them to
Court on 21.02.1986. On 17.04.1986 he sent M.Os. I and II to
the Medical Officer, Jiral for his opinion as to whether the injuries
sustained by the injured persons including the deceased could
have been possible by those weapons. He received the reply
from the doctor vide Ext.1. On 27.04.1986 he sent the yoke
(M.O.III) to doctor Subash Chandra Sahu, Associate Professor,
S.C.B. Medical College, Cuttack for his opinion vide Ext.17 and
received his reply vide Ext.18. On 04.04.1986 he received the
supplementary case diary of the U.D. case from the A.S.I. of
Mangalabag police station and on completion of investigation, he
submitted charge sheet on 20.06.1986 against the appellants
under sections 302/323/324/34 of the Indian Penal Code.
4. After observing due committal formalities, the case of
the appellants was committed to the Court of Session for trial
where the learned trial Court framed charges on 01.07.1987 and
since the appellants refuted the charges, pleaded not guilty and
claimed to be tried, the sessions trial procedure was resorted to
prosecute them and establish their guilt.
7
5. In order to prove its case, the prosecution examined
eleven witnesses.
P.W.1 Dr. Girija Kumar Mishra was the Assistant
Surgeon attached to Jiral hospital and he treated the appellant,
P.W.2 as well as the deceased on 18.02.1986 and proved the
medical examination reports. He reported to the officer-in-charge
of Kamakhyanagar police station as per his report Ext.1 wherein
he has mentioned about the shifting of the deceased to S.C.B.
Medical College and Hospital, Cuttack and ongoing treatment of
the appellant and P.W.2. He also examined the axes M.Os.I and
II sent by the I.O. and opined as per his report Ext.5 that
injuries found on the deceased was possible by those axes. He
also proved the discharge certificates of P.W.2 and the appellant
no.1 vide Ext.6 and Ext.7 respectively.
P.W.2 Rohita Behera is the informant in the case and
he is the brother of the deceased and an eye witness to the
occurrence. He himself is also an injured in the case.
P.W.3 Sakhi Behera is a post occurrence witness who
came to the spot after knowing about the condition of the
deceased from P.W.2 and found the deceased was lying
unconscious and Jalia (P.W.4) and Nandia (P.W.5) were giving
8
water to the deceased. She accompanied the deceased to Jiral
hospital.
P.W.4 Jaladhar Biswal is the domesticated son-in-law
of one of the shareholders of Jamun tree namely Kalandi Behera.
He is an eye witness to the occurrence who stated about the
assault on the deceased by appellant Nityananda with a yoke
(M.O.III).
P.W.5 Nandakishore Behera was the agnetic
grandson of the deceased and he is also an eye witness to the
occurrence who stated about the assault on the deceased by
appellant Nityananda with a yoke of the cart.
P.W.6 Babaji Swain was a member of the village
committee who stated about the decision taken in the village
meeting for utilisation of the trunk of the Jamun tree for making
doors and windows of the village high school and for distribution
of branches among the co-sharers.
P.W.7 Mayadhar Swain stated about the seizure of
the trunk and branches of Jamun tree, two axes from the house
of the appellants, a cart and yoke.
9
P.W.8 Sadasiva Swain took the deceased in a vehicle
to S.C.B. Medical College and Hospital, Cuttack where he was
declared dead. He is also a witness to the inquest as per inquest
report Ext.15 and after post mortem examination, he brought
the dead body to the village.
P.W.9 Umakanta Raut was the A.S.I. of police
attached to Mangalabag police station and he conducted inquiry
of Mangalabag U.D. Case No.42 of 1986, held inquest over the
dead body of the deceased and also sent the dead body for post
mortem examination and handed over the U.D. Case records to
the Investigating Officer.
P.W.10 Adikanda Barik was the Constable attached to
Mangalabag police station and he accompanied P.W.9 to S.C.B.
Medical College and Hospital, Cuttack where after post mortem
examination, he brought the wearing apparels of the deceased
and deposited it at Mangalabag police station.
P.W.11 Muralidhar Behera was the officer in charge
of Kamakhyanagar police station and he is the Investigating
Officer.
The prosecution exhibited nineteen documents. Ext.1
is the report of P.W.1 to P.W.11, Ext.2 is the injury report of the
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deceased, Ext.3 is the injury report of P.W.2, Ext.4 is the injury
report of appellant no.1, Ext.5 is the opinion of P.W.1 regarding
axes vide M.O.I and M.O.II, Ext.6 is the discharge certificate of
the deceased, Ext.7 is the discharge certificate of appellant no.1,
Ex.8 is the F.I.R., Ext.9 is the seizure list, Ext.10 is the
zimanama, Ext.11 is the seizure list of axes M.O.I and M.O.II,
Ext.12 is the seizure list of yoke (M.O.III), Ext.13 is the seizure
list of cart, Ext.14 is the zimanama of cart, Ext.15 is the inquest
report, Ext.16 is the dead body challan, Ext.17 is the requisition
for examination of the yoke (M.O.III), Ext.18 is the examination
report of the yoke (M.O.III) and Ext.19 is the post mortem
report.
The prosecution also proved three material objects.
M.O.I and M.O.II are the axes and M.O.III is the yoke.
6. The defence plea of the appellants was that the
Jamun tree in question exclusively belonged to them and they
never agreed to give its trunk to the village school and to divide
the branches among the five shareholders. They further pleaded
that on the date of occurrence as the prosecution party tried to
remove the branches of the Jamun tree forcibly, they protested.
P.W.2 assaulted the appellant no.1 Nityananda Behera first with
an axe on his back causing injury on him for which the appellant
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no.1 counter assaulted to P.W.2 in self defence after picking up a
branch of the Jamun tree which was lying at the spot over the
head of P.W.2. When the deceased also attempted to assault the
appellant no.1 by the axe which he was holding, the appellant
no.1 gave a blow on the head of the deceased with the broken
branch in order to save his life. The axe fell down from the hands
of the deceased and with that axe, the appellant no.1 assaulted
to P.W.2 which hit him on his neck as P.W.2 tried to assault the
appellant no.1 further.
7. The learned trial Court after analyzing the evidence
on record, has been pleased to hold that the deceased died a
homicidal death. It was further held that the appellants cannot
claim any right of private defence to the property which in this
case was the Jamun tree. It was further held that the appellant
no.1 had given a yoke blow on the head of the deceased which
was the cause of his death. It was further held that during
course of a quarrel, suddenly on the spur of the moment
appellant no.1 assaulted the deceased by means of a yoke
although he had no intention to kill the deceased. With regard to
the assault by appellant no.2 on P.W.2, learned trial Court
observed that this part of the occurrence of assault on P.W.2 has
not been seen by anybody except P.W.2. It was further held that
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there was no right of private defence for appellant no.1, however
there was no premeditation or prearranged plan by the appellant
no.1 to assault the deceased nor there was any enmity between
them and everything happened during course of a quarrel and
suddenly on the spur of the moment the assault took place. It
was further held that the injury on the deceased caused by
appellant no.1 did not cause his instantaneous death and he had
also no intention to kill the deceased but he has full knowledge
that such blow with the yoke was likely to cause death and
accordingly found the appellant no.1 guilty under section 304
Part-II of the Indian Penal Code after acquitting him of the
charge under section 302 of the Indian Penal Code. It was
further held that P.W.2 had not assaulted appellant no.2 in any
manner and therefore, appellant no.2 had no right of private
defence to his person.
8. Mr. Saktidhar Das, learned Senior Advocate
appearing for the appellants contended that the learned trial
Court has not considered the right of private defence of property
and person of the appellants in its proper perspective. The
evidence of the doctor (P.W.1) falsify that yoke (M.O.III) was
utilized for assaulting the deceased. The prosecution party
members appear to be aggressors and the injury sustained by
13
the appellant no.1 during course of occurrence has not been
explained by the prosecution and therefore, it is a fit case where
benefit of doubt should be extended in favour of the appellants.
Mr. Lalatendu Samantaray, learned Additional
Government Advocate on the other hand supported the
impugned judgment and contended that since the appellants
have not taken any plea of right of private defence in their
accused statements, the same cannot be considered at all. He
further argued that when three eye witnesses have stated
consistently as to how the occurrence had taken place, merely
because the injury sustained by the appellant no.1 has not been
explained, it cannot be a reason to discard their evidence in toto
and therefore, the appeal should be dismissed.
9. It is first to be seen how far the prosecution has
proved the death of the deceased to be homicidal in nature.
The doctor conducting post mortem examination has
not been examined, however the post mortem report has been
marked as Ext.19 on admission. The report indicates that the
deceased had sustained pressure abrasions scattered over an
area of 3" x 2" on the back of right elbow, small abrasion overall
area of 3" x 2" over the right side back and swelling of scalp over
right temporal region. Extradural haemotoma was found
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massive on the whole of the temporal region on the left side
extending in both ways to frontal and posterior region of size
6" x 4" x ½". The brain was found compressed and visible in the
site and in the right side it was 3" x 2" x ¼" over the right
temporal region. All the injuries were opined to be ante mortem
in nature and caused by blunt force impact and injury to head
was opined to be fatal in ordinary course of nature and death
was on account of coma as a result of head injury.
The finding of the post mortem report has not been
challenged by the learned Senior Advocate appearing for the
appellant. The learned trial Court has held that the deceased died
a homicidal death. After perusing the inquest report (Ext.15) and
the post mortem report (Ext.19), I am of the humble view that
the prosecution has successfully proved the death of the
deceased to be homicidal in nature.
10. The prosecution has projected P.W.2, P.W.4 and
P.W.5 to be the eye witnesses to the occurrence.
P.W.2 Rohita Behera :
He is an eye witness to the occurrence who happens
to be the brother of the deceased. The appellants are his agnatic
nephews. He has stated that in their village in Talatota, they
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along with the appellants were jointly possessing a Jamun tree.
The villagers requested all the shareholders to utilise the trunk of
that tree for the construction of village high school to which the
shareholders gave their consent and accordingly the tree was cut
by the villagers. So far as the branches of the tree is concerned,
it was decided that those branches were to be divided between
the five shareholders. He further stated that the appellants
removed some branches in a cart on the date of occurrence in
the morning hours and at about 2 p.m. again they came to take
another cartload of branches. When P.W.2, the deceased and
others came to know about the same, they arrived at the spot
and found the appellants were loading the branches of the tree
in the cart. When they objected to taking of branches, the
appellants claimed the ownership over the tree and did not allow
P.W.2 and others to take any branches. The appellant
Nityananda Behera dealt a blow on the head of the deceased
with a yoke (Juali) (M.O.III) for which the deceased sustained
injury and fell down on the ground and became unconscious. The
appellant Madhab Behera dealt two blows to P.W.2 by an axe,
one on the head and the other on the backside of the head with
its sharp side. When the appellants were leaving the place,
P.W.2 threw away his axe towards them. He further stated that
the deceased was carried in a cart to Jiral Hospital but as his
16
condition became critical, he was referred to S.C.B. Medical
College and Hospital.
In the cross-examination, P.W.2 has stated that the
appellant Nityananda was in Jiral Hospital as an indoor patient
when Thana babu reached the village at 4 p.m. He further stated
that the Patta of the land on which the Jamun tree was standing
was with him but he did not show the same to police. However
he stated that the Patta relates to Khata No.43 which stands
jointly recorded in favour of five shareholders i.e. Jharia Behera
and others and Jharia Behera who was his father's elder brother
had planted the tree. He further stated that the decision relating
to giving the trunk of the tree to village school was decided in
Grama Sabha meeting about fifteen days prior to the occurrence
and the same was also recorded in the meeting book of Grama
Sabha. The prosecution has not produced any such meeting book
of the decision taken which according to P.W.2 was reduced to
writing. P.W.2 admits that they have President and Secretary of
Grama Sabha. Neither the President nor the Secretary has been
examined to prove the decision so taken in the Grama Sabha
relating to the tree. He further stated that on the date of
occurrence before starting from the village, he and the deceased
and others had decided to protest and challenge the appellants
17
not to take the branches and further decided to bring the
branches to their house and accordingly they had taken one cart
to bring the branches and they had also taken two axes with
them.
In the first information report, P.W.2 has stated that
when the appellants were fleeing away from the spot, he threw
one tangia which hit on the back of the appellant Nityananda.
However during trial in the chief examination, he stated that
when the appellants left the place after assaulting them, he
threw away his axe towards them but he cannot say whether his
axe hit any of them or not. He further stated that the tangia
which he had thrown fell at a distance of about fifty yards from
the place where the tree was lying and he had not marked
whether it hit any of the appellants or not. He further stated not
to have seen any injury on appellant Nityananda.
The doctor P.W.1 who examined appellant
Nityananda Behera at Jiral Hospital on the date of occurrence
found one incised wound of 4" x 1" x 1" on the left shoulder
obliquely pointed towards left shoulder which was opined to have
been caused by sharp cutting weapon. The medical examination
report of appellant Nityananda Behera has been marked as
Ext.4. P.W.1 has specifically stated that the injuries sustained by
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the appellant is not at all possible if a weapon is thrown from his
back side at him and the injury must have been inflicted by the
assailant standing behind him and assaulting the injured with
force by a sharp cutting weapon. Therefore, it appears that the
informant first tried to explain away the injury sustained by the
appellant Nityananda in the first information report, however
when the doctor (P.W.1) stated that the injury on appellant
Nityananda could not be possible in the manner in which it is
stated in the first information report, P.W.2 tried to change the
version.
The defence plea of right of private defence has been
suggested to P.W.2 that he first assaulted the appellant
Nityananda and caused bleeding injury with an axe on his left
shoulder and he again attempted to assault the appellant
Nityananda with the same axe and in his self defence, the
appellant Nityananda assaulted him on his head by a broken
branch of the tree which was lying there. It has been further
suggested to P.W.2 that the deceased attempted to assault
appellant Nityananda by another axe which he was holding and
to defend himself and to save his life, appellant Nityananda gave
blow with a branch of the tree on the head of the deceased. It is
further suggested that when P.W.2 again attempted to assault
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appellant Nityananda by a tangia, the later picked up the tangia
which had fallen from the hands of the deceased and counter
assaulted P.W.2 for which he sustained another injury on the
neck.
P.W.2 further stated in the cross-examination that
when something is loaded in a cart, the usual practice is to
unyoke the bullocks from the cart but to keep the yoke tied to
the cart by ropes as usual and to load things in that condition in
the cart. He further stated that on the date of occurrence in the
same manner the accused persons were found loading the
branches of the cart when they reached there and in the same
condition the cart was when a quarrel ensued between them and
in the same condition the cart was when appellant Nityananda
assaulted the deceased with the yoke. This statement of P.W.2
falsifies that yoke (M.O.III) was used by appellant Nityananda to
assault the deceased as the yoke was tied to the cart not only at
the time of loading of branches of the tree but also when a
quarrel ensued between the parties and when the appellant
Nityananda stated to have assaulted the deceased.
Most peculiarly when these aspects about the
placement of yoke was brought out in the cross-examination of
P.W.2, the prosecution in order to overcome this aspect brought
20
out in the chief examination of P.W.5 that the appellant
Nityananda brought the yoke which was placed against the wheel
of the cart and assaulted the deceased on his head. When P.W.2
has stated that the yoke was tied to the cart by ropes as usual at
the time of occurrence, the statement of P.W.5 that the yoke
was placed against the wheel of the cart runs contrary to the
evidence of P.W.2 and therefore, the same cannot be accepted.
P.W.4 Jaladhar Biswal :
He has stated that Jamun tree belonged to five
shareholders and one of the shareholders was his father-in-law
Kalandi Behera. The villagers cut the Jamun tree with the
permission of the shareholders to take the trunk for making of
doors and windows for the high school and the branches were to
be divided between the five shareholders. He further stated that
he along with the deceased, P.W.2 and P.W.5 came to the spot
with a cart and found the appellants were tying the branches of
Jamun tree. When they wanted to take the branches, the
appellants protested saying that the tree belonged to their father
and that they would not allow anyone to take its branches and
the log. The appellant no.1 Nityananda dealt a blow on the head
of the deceased with a yoke (M.O.III) for which the deceased fell
down. P.W.4 along with P.W.5 ran to the river to bring water,
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soaked their napkins and brought water and administered the
same to the deceased who was unable to talk. They brought the
deceased to the house in a cart and then the deceased was
taken to Jiral hospital.
Though P.W.4 stated in the chief examination that
branches of the Jamun tree were to be divided between the five
shareholders but in the cross-examination, he has stated that he
had no personal knowledge as to how the tree belonged to the
five shareholders. He further stated that the appellants were
poor persons and their landed property was not sufficient to
provide them food for the whole year and that they earned their
livelihood on labour and that the villagers were not giving any
money for the trunk of the Jamun tree. He further stated that
the appellants were complaining that they were not prepared to
give any portion of the tree to anybody including the villagers as
it was planted by their father and it belonged to them. In view of
this evidence which has been brought out by way of cross-
examination, it appears improbable that the appellants would
have agreed for donating the trunk portion of the jamun tree to
the villagers for the purpose of utilizing the same in the making
of doors and windows of the school particularly in view of their
22
miserable financial condition and when they would not be getting
anything by giving the trunk for such purpose.
P.W.4 has further stated in the cross-examination
that the decision taken by the villagers was not reduced to
writing and it was an oral decision and he had no knowledge
about the oral decision of the villagers in that regard. Even
though he stated about the yoke (M.O.III) being utilized by
appellant no.1 in assaulting the deceased, he has stated not to
have seen any of the appellants untying the yoke which was tied
to their cart. He further stated that the appellant no.1 was
standing on the backside of the deceased while delivering the
blow on his head with the yoke. At this stage, if the evidence of
the doctor (P.W.1) is taken into account, it would appear that in
case a heavy weapon like yoke (M.O.III) would have been
utilized, it would have caused extensive injury on the head of the
deceased and fracture would be inevitable and the fracture would
have been a comminuted fracture breaking the bones into
pieces. The doctor further stated that the injury on the head of
the deceased in his opinion ought to have been caused by a
weapon of much lighter weight than M.O.III like a small branch
of tree or small lathi etc. and the injury must have been caused
by the assailant standing from the front side of the deceased and
23
not by standing in the backside. Therefore, the evidence of the
doctor which was given after taking into account the nature of
injury sustained by the deceased and the nature of weapon
stated to have been utilized in assaulting the deceased creates
doubt about the manner of assault and the weapon of assault as
deposed to by P.W.4.
P.W.4 was specifically asked about the injury on the
appellant no.1 but he pleaded his ignorance. He further stated
not to have seen any injury on P.W.2 when he along with P.W.5
went to bring water for the deceased but stated that after he
came back from the riverside, he noticed injury on P.W.4.
P.W.5 Nandakishore Behera :
He has stated that the deceased was his agnatic
grandfather and the villagers with the permission of the
shareholders cut the Jamun tree which was in joint possession of
five shareholders including he himself. He further stated that on
the date of occurrence, the appellants brought a cartload of
branches to their house and at about 2.00 p.m. again they
proceeded to the spot to bring another cartload of Jamun tree.
He further stated that he along with the deceased, P.W.2 and
P.W.4 went to the spot to bring the branches of the tree taking a
24
bullock cart and they found the appellants loading some of the
branches. When they wanted to bring some branches, the
appellants protested saying that their father had planted that
tree and they had claim over the tree and they did not allow
P.W.5 and others to take any branch of the tree. He further
stated that there was exchange of words and during the quarrel,
the appellant no.1 brought a yoke placed against the wheel of
the cart and dealt a blow on the head of the deceased as a result
of which the deceased fell down on the ground. The deceased
was in an unconscious state and he along with P.W.4 ran to the
river to bring water and they soaked their napkins in the river
water and try to administer it to the deceased but he did not
drink nor he regained his sense. They carried the deceased in the
cart along with the yoke with which the appellant no.1 assaulted
the deceased which he later produced before the Investigating
Officer. He further stated that the deceased was sent to Jiral
Hospital.
In the cross-examination, it has been confronted to
P.W.5 and proved through the Investigating Officer (P.W.11) that
he had not stated before him that P.W.4 accompanied him to the
place of occurrence along with the deceased and P.W.2. He has
also not stated that Jamun tree which was standing in Talatota
25
belonged to five shareholders including he himself and the
appellants and that the villagers with the permission of the
shareholders cut the Jamun tree to take its trunk for use in the
village high school and that branches were to be taken by the
five shareholders. He admitted in the cross-examination that he
did not attend the village meeting where the decision was taken
regarding the Jamun tree. He further stated in the cross-
examination that the appellant Nityananda assaulted the
deceased from the backside and he did not see any injury on the
appellant no.1. He further stated to have seen only one tangia at
the place of occurrence which belonged to P.W.2. He further
stated that they felt that the appellants would take all the
branches of the tree and would not give them anything for which
they got annoyed and angry with the appellants.
Thus, not only there are material contradictions in
the evidence of P.W.5 but also his evidence relating to the
manner of assault on the deceased and the nature of weapon
used in the assault gets contradicted by the evidence of the
doctor (P.W.1).
P.W.5 has stated that he handed over the yoke
(M.O.III) to the I.O. (P.W.11) in his village and yokes like
26
M.O.III are commonly available in the houses of agriculturist and
no blood mark was found on M.O.III.
11. Let me now discuss the evidence of P.W.6 Babaji
Swain who claimed himself to be a member of village committee
and he stated about holding of a meeting of the villagers in
which a decision was taken in presence of the five shareholders
of the Jamun tree that trunk of such tree was to be utilised for
making doors and windows of the village high school and the
branches to be taken by the five shareholders. He further stated
that after fifteen days of the decision was taken, the Jamun tree
was cut.
In the cross-examination, P.W.6 admits that there is
no document to show that he was a member of the village
committee. He further admits that the decisions which were
taken in the village committee meeting were not recorded in
writing as there was no meeting book to record the proceedings
which runs completely contrary to what P.W.2 has stated in that
regard. P.W.6 has named one Rohita Puhan to be the President
and Brhamarbar Jena to be the Secretary of the village
committee but none of them have been examined. P.W.6 further
stated that dispute regarding the Jamun tree arose between the
shareholders including the appellants about one and half months
27
prior to the occurrence as the appellants claimed the entire tree
belonged to them whereas the others stated that they had a
share in it. He further stated that the dispute was never referred
to village committee and even on the date of occurrence also no
dispute was referred to village committee regarding the share of
the Jamun tree. In view of the evidence brought out by way of
cross-examination, it appears improbable that any meeting was
convened in the village where the appellants agreed in taking a
decision in respect of the Jamun tree.
It has been confronted to P.W.6 and proved through
the I.O. (P.W.11) that he had not stated before him that he was
a member of the village committee and that one month prior to
the occurrence, the villagers called a meeting and called the five
shareholders to the meeting and that the appellants were
present in the said meeting wherein it was decided that the trunk
of the tree was to be utilised for making of doors and windows
for the village high school and the branches would be taken by
the five shareholders. Therefore, the evidence of P.W.6 regarding
holding of any meeting and taking of any decision relating to the
Jamun tree is not acceptable.
Analysing the evidence of the eye witnesses P.Ws.2,
4 and 5 and also the evidence of P.W.6, I am of the humble view
28
that the prosecution case regarding holding of any meeting in
the village relating to the cutting of Jamun tree and taking a
decision to give the trunk portion to the village school and
sharing of the branches between the five shareholders is not
acceptable.
Weapon of assault on the deceased:
12. It is the prosecution case that yoke (M.O.III) was
used by appellant Nityananda Behera to assault the deceased.
P.W.11, the I.O. specifically stated that on 27.04.1986 he sent
the yoke (M.O.III) to Dr. Subash Chandra Sahoo, Associate
Professor, S.C.B. Medical College and Hospital, Cuttack for his
opinion and received the reply vide Ext.18.
Ext.18 indicates that the yoke which was sent was 52
c.m. length, 25 c.m. in width at ends and 27 c.m. at the middle
and rectangular in shape. It is a solid wooden bar and opinion
has been given that the head injury found on the body of the
deceased was likely to have been caused by the wooden yoke.
There is no mention in the seizure list (Ext.12) in which the
wooden yoke (M.O.III) was seized that it was containing any
blood stain on it. No one including P.W.7 who is a witness to the
seizure of yoke has also stated to have noticed any blood stain
29
on the yoke. P.W.5 who produced the yoke (M.O. III) before the
I.O. has stated that there was no blood mark on it (M.O. III) and
further stated that yokes like M.O.III are commonly available in
the houses of the agriculturists. The I.O. has stated that he did
not send articles to F.S.L., Rasulgarh as none of the articles
seized contained any stain of blood.
In this case, the doctor who has conducted post
mortem examination has not been examined. However, the post
mortem report has been marked as Ext.19 on admission on
14.04.1988.
The prosecution case that the yoke (M.O.III) was
utilised for assaulting the deceased on his head from the
backside is contradicted by the medical evidence as deposed to
by P.W.1.
The evidence on record further indicates that the
yoke was tied to the cart by ropes as usual when the assault on
the deceased took place and when the yoke was not containing
any blood stain on it, it is doubtful that the yoke was used as the
weapon of offence.
30
Plea of right of private defence:
13. From the suggestions given to the eye witnesses by
the defence counsel, it appears that the appellants have taken a
specific plea of right of private defence. It is pertinent to note
that in the accused statement, such a plea has not been taken
specifically by any of the appellants. Let me now examine how
far such plea is acceptable.
Law is well settled that even if the accused has not
taken any specific plea of exercise of right of private defence but
the materials available on record suggest such exercise, the
Court can consider the same and give benefit to the accused in
appropriate case. Without even taking a specific plea of private
defence, the accused can even rely on the circumstances and
admission made by the witnesses in support of the exercise of
right of private defence. The burden of establishing the plea of
self defence is not as onerous on the accused as it is required by
the prosecution to prove its case beyond reasonable doubt. The
accused can discharge his burden by showing pre-ponderance of
probabilities in favour of his plea by laying basis for that plea in
the cross-examination. A right of private defence is a defence
right. Where there is no apprehension of danger, there is no
right of private defence. Unless one is suddenly confronted with
31
the necessities of adverting an impending danger which is not of
his self creation and the necessities are real and apparent, he
cannot exercise right of private defence. Such a right is not a
right to take revenge but it is clearly preventive and it cannot be
based on surmises and speculations. Sections 96 to 106 of the
Indian Penal Code deal with right of private defence and it also
indicate how much right of private defence can be exercised and
under what circumstances. Such exercise cannot be weighed in
golden scale in as much as a person should not be expected to
modulate his defence step by step with any arithmetical
exactitude by way of giving that much of assault which is
required in the thinking of a man in ordinary times or under
normal circumstances.
The prosecution has not offered any explanation for
the injury sustained by appellant no.1 who was hospitalized in
Jiral hospital and the injury sustained was not a minor or a
superficial injury but an incised wound of size 4"x1"x1" on the
left shoulder which can be caused by sharp cutting weapon as
per the opinion of the doctor (P.W.1).
Let me now analyse the sequence of events leading
to the assault on the deceased as well as P.W.2 as per the
prosecution case.
32
Sequence No. I
A decision was taken in the village meeting in the
presence of five shareholders to cut the Jamun tree and to utilise
the trunk for making of doors and windows of the village high
school and the branches of the tree to be taken by the five
shareholders. Accordingly, the tree was cut by the villagers.
Sequence No. II
The appellants took a cartload of branches of the tree
in the morning hours to their house and again they came to the
spot in the afternoon with a cart to take more branches and
loaded the branches.
Sequence No. III
The deceased along with P.Ws.2, 4 and 5 arrived at
the spot with a cart to take the branches and found the
appellants loading the branches in their cart and they also tried
to take the branches but the appellants prevented them.
Sequence No. IV
A quarrel ensued between the parties and the
deceased was assaulted by the appellant no.1 Nityananda
Behera and P.W.2 was assaulted by appellant no.2 Madhab
33
Behera. Appellant no.1 Nityananda Behera also sustained injury
during the course of occurrence.
So far as sequence no.I is concerned, it has been
brought out in the cross-examination of P.W.2 that the decision
was reduced to writing in the meeting book of Grama Sabha but
no such meeting book has been proved during the trial. Even the
I.O. has stated that he has not seized any document from the
village committee President and Secretary in connection with the
case. The President and Secretary of the Grama Sabha have also
not been examined. P.W.4 has stated about the miserable
financial condition of the appellants who were earning their
livelihood on labour and further stated that they were never
prepared to give any portion of the tree to anybody as they were
claiming that the tree was planted by their father and it belonged
to them. In view of such financial condition and their claim, it
sounds improbable that the appellants would have agreed for
donating the trunk of the tree to the village school and
distributing the branches among the five shareholders. P.W.5
stated not to have attended the village meeting where the
decision relating to cutting of Jamun tree was taken and the
evidence of P.W.6 also indicate that the appellants were claiming
the entire Jamun tree for which there was dispute which was
34
never referred to the village committee and even on the date of
occurrence also no such dispute was referred to the village
committee. In view of such evidence of the witnesses, when the
documentary evidence relating to the decision taken in the
Grama Sabha has not been proved and the evidence of the
aforesaid four witnesses relating to the decision taken in the
Grama Sabha is not inspiring confidence, I am constrained to
hold that the prosecution has failed to prove that any decision
was taken in the village meeting relating to cutting of Jamun tree
and its distribution.
So far as the sequence no.II is concerned, P.W.2
though stated in the chief examination that the appellants
removed one cartload of branches of the Jamun tree but in the
cross-examination, he stated that the appellants had taken two
cartloads of branches to their house prior to the occurrence. He
further stated not to have told anybody about the appellants
taking two cartloads of branches without consulting the other
shareholders. He stated so for the first time in Court. P.W.4 has
not stated anything in the chief examination that the appellants
brought any cartload of branches in the morning hours. Even in
the cross-examination, he specifically stated that on the date of
occurrence, none of the appellants brought any branches from
35
the tree prior to the incident. Though P.W.5 stated that he had
seen the appellants bringing the cartload of branches in the
morning at about 8.00 a.m. to 9.00 a.m. but he stated that he
did not make any complain to them nor he informed any other
shareholders about the same. No branches of jamun tree were
seized by the Investigating Officer from near the house of the
appellants though it was seized lying at the spot at Talatota as
per seizure list Ext.9. Therefore, it is very difficult to accept that
the appellants had removed one cartload of branches of Jamun
tree in the morning hours on the date of occurrence.
None of the eye witnesses have stated that the
appellants, who were loading the branches of the tree, left the
spot with the cart. Even P.W.3 has stated that on the date of
occurrence, she found the appellants came running. In view of
such evidence, had the appellants taken their cart to the spot on
the date of occurrence and loaded it with the branches when the
occurrence took place and they ran away from the spot, then
their cart loaded with branches would have been found at the
spot. The Investigating Officer has not seized any cart loaded
with branches at the spot. He only seized one bullock cart on the
village road of Dighi as per seizure list Ext.13. P.W.2 has stated
that he did not notice any cart at the spot during the spot visit of
36
the Investigating Officer and all the branches of Jamun tree
which he had seen on the date of occurrence at the spot were as
usual when the I.O. visited the spot. Therefore, the prosecution
evidence that the appellants at the time of occurrence had taken
their cart to the spot and loaded it with the branches is not
acceptable.
So far as sequence no.III is concerned, P.W.2 has
stated that he along with the deceased, P.W.4 and P.W.5 had
decided to protest and to challenge the appellants not to take
branches before starting from the village and they had also
decided to bring the branches to their house. They had taken
one cart to bring the branches of the Jamun tree with ropes and
two axes (M.Os.I and II). P.W.5 has stated that after reaching
the place of occurrence, they felt that the appellants would take
away all the branches of the tree for which they got annoyed and
angry with the appellants. As I have already disbelieved the
prosecution case that the appellants had taken a cartload of
branches earlier to their house and again trying to take another
cartload of branches, if the prosecution party members came to
the spot with the cart, ropes and axes to take away the branches
and the appellants protested to them as because they were
claiming shares over the Jamun tree, it cannot be said that they
37
have committed any wrong in raising their protest to the
prosecution party members.
Coming to the sequence no.IV, looking at the manner
in which the prosecution party members including the deceased
had gone to the spot with a cart, ropes and axes to bring the
branches of the Jamun tree and they got annoyed with the
appellants when they protested and that there was exchange of
words and a quarrel ensued between the parties as stated by
P.W.5 and the fact that the appellant no.1 has sustained an
incised wound on his left shoulder for which he was hospitalized
in the Jiral Hospital and the said injury has not been explained
by the prosecution, even if it is accepted that the appellant no.1
in such a situation gave one blow to the deceased on his head
and that to with the branch of the tree which appears to be more
probable in view of the evidence of the doctor (P.W.1), it cannot
be said that he has exceeded his right of private defence.
Similarly the appellant Madhaba Behera cannot be said to have
exceeded his right of private defence of property in causing two
simple injuries to P.W.2. The manner in which the prosecution
projected its case of assault on the deceased as well as P.W.2
appears to be a doubtful feature. No one from the prosecution
side also tried to lodge any first information report on the date of
38
occurrence which was lodged twenty two hours after the
occurrence. In view of the glaring inconsistencies in the
evidence of the prosecution witnesses and when the case as was
projected by the appellants appears to be more probable, I am
of the humble view that it is a fit case where benefit of doubt
should be extended in favour of the appellants.
14. In view of the foregoing discussions, the impugned
judgment and order of conviction of the appellant no.1 Nitia @
Nityananda Behera under section 304 Part II of the Indian Penal
Code and that of the appellant no.2 Madhia @ Madhab Behera
under section 324 of the Indian Penal Code and the sentence
passed thereunder is not sustainable in the eye of law and
hereby set aside. The appellants are acquitted of all such
charges. The appellants are on bail by virtue of the orders of this
Court. They are discharged from liability of their bail bonds. The
personal bonds and the surety bonds stand cancelled.
15. Before parting with the case, I am reminded of the
oft-quoted legal maxim, 'Justice delayed is justice denied'. Right
to speedy trial is a fundamental right. Appeal is a continuation of
trial. After fighting the legal battle for more than thirty four
years, the appellants have won the case. The passage of time
must have brought wrinkles on their faces and dark hairs turning
grey. No one can restore the lost years to them. Changes are
39
being made in the criminal justice delivery system from time to
time to deal with serious problem of delay and arrears and for
quicker disposal of cases. Let us hope for a better result in the
future with the extra efforts put by all concerned in that regard
with active support and participation from the members of the
Bar.
Accordingly, the Criminal Appeal is allowed.
Lower Court records with a copy of this judgment be
sent down to the learned trial Court forthwith for information.
..........................
S.K. Sahoo, J.
Orissa High Court, Cuttack The 1st September, 2020/Pravakar/Sisir/RKM