Citation: Sikhar Behera Vs State of Orissa, 1994 SCC Supl. (1) 493 JT 1993 Supl., 341
Date of Judgement: 28/09/1993
Equivalent citations: 1994 SCC Supl. (1) 493 JT 1993 Supl., 341
Case No.: N/A
Case type: Criminal Appeal
Appellant: Sikhar Behera
Respondent: State of Orissa
Bench: Hon’ble Justice Reddy, Hon’ble Justice K, Jayachandra
Court: Supreme Court of India
Statues Referred:
- Indian Penal Code, 1860; Sections 302, 34, 149, 232, 324 324,149
- Code of Criminal Procedure, 1973; Sections 107, 144, 145
Facts:
- The charged, two deceased the material observers have a place with towns Khejuria and Dimirisena. There was a long-standing question between the two gatherings with respect to ownership of the grounds having a place with the divinity introduced at town Dimirisena.
- There was a dispute of 150 acres of land of terrains out of which 100 Acres of land were in control of the occupants and the leftover 50 Acres of land were being let out for bhag development every year.
- The arraignment party asserts that 40 families having a place with their gathering were in control of those 50 acres of land of terrains.
- Indra Kumar Patnaik, a trustee, depended the administration of the issues of the god and its properties to the locals of Dimirisena to which the indictment party primarily has a place.
- The present debate identifies with the terrains of the divinity which are privately known as Panchamania lands, a space of 2.04 sections of land. In one of the plots, paddy was cut and not long before the current event, a decree under Section 144 of Code of Criminal Procedure was given and the two players were controlled from going to the fields.
- The request under Section 144 was served on a portion of the charged and a notification under Section 107 of Code of Criminal Procedure likewise was served on the denounced regarding why they would not be called upon to execute bonds for keeping harmony.
- On November 28, 1974, PW 5 ASI went to town Dimirisena for serving the request under Section 144 and the notification under Section 107 on a portion of the other denounced people. At the point when PW 5 read out and clarified the substance of the request to the individuals from the indictment gathering and needed to serve the notification, yet they wouldn’t acknowledge something very similar.
- The individuals from the blamed party additionally rejected. In the wake of declining to get the notification, a gathering of around 20 to 30 individuals from the arraignment party went to cut paddy from the Panchamania lands.
- Subsequently a gathering of around 15 people of the indictment party went towards the said lands for conveying the paddy piles. While the subsequent gathering had continued up to the Kalapatriri cemetery, they tracked down that a gathering of 25 people of the charged party going there with lathis, bhalis, tentas and other destructive weapons.
- The gathering was driven by Mahant Gobinda Das. Simultaneously another gathering of 50 people of the blamed party came equipped with different dangerous weapons. The individuals from the blamed party encompassed the individuals for the indictment party.
- Mahant Gobinda Das discharged a fired from the weapon which hit Kulamani Behera (expired 1), an individual from the indictment gathering and he tumbled down on the ground. Then, at that point Gobinda Das grabbed away a tenta from the hand of cleared charged Chhaila Samal.
- Thereafter different people attacked him with dangerous weapons because of which he passed on the spot. At the point when Kunja Samal (expired 2), acted the hero of perished 1, he was wounded by A-16 because of which he tumbled down on the ground. A portion of the other denounced people additionally attacked expired 2 because of which he got oblivious and consequently kicked the bucket.
- In the course of a similar occurrence, PWs 2, 3, 4, 6, 7, 8 and 9 likewise got a few wounds. PW 5, ASI of Police, who was available on the spot, sent a report through a town worker based on which a case was enlisted.
- All the harmed people were brought to Brahmagiri Hospital and the Medical Officer; PW 11 gave emergency treatment and sent every one of them to District Headquarters Hospital at Puri. PW 11 recorded Ex. P-4, the perishing announcement of Kunja Samal, expired 2.
- He additionally inspected the harmed observers. Later after death was directed over the dead assemblages of the two expired. The blamed were captured.
- The preliminary court held that the blamed were individuals for the unlawful gathering and they were answerable for causing the demise of the two expired people and for exacting various wounds on the observers which were graver and more genuine in contrast with the minor wounds got by the denounced party.
- The High Court held that gatherings on the two sides were unlawful and it is insignificant which gathering started the assault. In that perspective on the matter the High Court held that the blamed had no appropriate for private protection. The High Court additionally saw that every one of the individuals from the unlawful gathering would be vicariously at risk by righteousness of use of Section 149 of the Indian Penal Code.
- Then the appeal was filled in Supreme Court.
Issues Involved?
- Whether the accused party could get advantage of the proper of private defence of property and person?
- Whether every member of the unlawful assembly particularly of the accused party are often convicted under Sections 302/149 of the Indian Penal Code on the bottom that everyone among them had the knowledge that death would be caused to the members of the opposite party and still continued to be the members of the unlawful assembly.
Contention of Appellant:
The counsel for the Appellant contended that:
- Learned counsel appearing for the appellants submitted that the accused had right of private defence to defend the property as well as their persons.
Obiter dicta
- It was seen that both the parties were heavily armed visited the fields. thereto extent, the finding of the supreme court that each side formed into unlawful assemblies can’t be doubted.
Ratio decidendi:
- The accused had right of private defence to defend the property also as their persons, in sight of the findings of both the courts below that neither party was in peaceful possession of the lands at issue which there was a scramble for possession which both parties were prepared for a fight and actually fought, the accused cannot have a right of private defence.
- In such a free fight, the question of 1 party being aggressor might not arise. However, the members of every party would be members of the unlawful assembly with the common object to fight.
- The character of the participation, the weapons used and therefore the injuries caused would even be relevant to infer the character of the common object.
Judgement:
The Appeal was Dismissed.
The conviction of the appellants under Sections 302/149 and therefore the sentence of imprisonment for all times awarded thereunder are put aside. Instead, they’re convicted under Sections 304 Part II read with 149 of the Indian Penal Code and every of them is sentenced to undergo seven years’ RI. Other convictions and sentences are confirmed, and so the appeal was dismissed.
Conclusion:
We can clearly, come to a conclusion that, the accused armed with deadly weapons formed into an unlawful assembly with a view to fight with the opposite side and attacked them. one among the deceased received two fatal injuries and therefore the other deceased received just one fatal injury.
In such circumstances, the members of the unlawful assembly must be held to possess knowledge that a number of them are likely to cause injuries and thereby likely to cause death. In other words, that they had the knowledge that a minimum of an offence of culpable homicide was likely to be committed.
Drafted by: Bharti Verma, Chanderprabhu Jain College of Higher Studies and School of Law.
Edited by: Aashima Kakkar, Associate Editor, Law Insider
Published On: November 11, 2021 at 12:55 IST