JUDGMENT
1. This appeal is directed against the judgment and order dated 14.3.1997 passed by the learned Additional Sessions Judge, Sonitpur. Tezpur in [CASE NUMBER], whereby both the accused appellants were sentenced to imprisonment for life and also with fine of Rs. 2000/-, in default to R.I. for another six months under [SECTION] [ACT].
2. The facts in brief are that on the ill fated day of 20.1.1985 the deceased [ENTITY] along with his brother [ENTITY] and one [ENTITY] went to the land at Karchantala. They also carried bamboo and thatched in two carts driven by [ENTITY] P.W. 7 and [ENTITY] P.W. 8. When the complainant party reached the land they found accused appellants [ENTITY], [ENTITY] and one [ENTITY] working in the field when the deceased enquired as to what they are doing in their field the accused persons attacked them with lathis, spears etc. whereupon members of the complainant party took to their heels. They were chased and [ENTITY] and [ENTITY] were assaulted and they sustained injuries. The accused [ENTITY] struck spear blows on the person of [ENTITY] P.W.-4 [ENTITY] arrived at the place of occurrence in the meantime and he tried to remove [ENTITY] to the hospital but [ENTITY] died in the courtyard of a neighbouring witness.
3. An FIR Ext.2 was lodged by [ENTITY] brother of the deceased. The police after usual investigation submitted charge-sheet and the learned Addl. Sessions Judge, Sonitpur, Tezpur, farmed charges under [SECTION], [SECTION] [ACT] against both the accused appellants. During trial the prosecution examined as many as 15 witnesses, defence examined three witnesses including accused [ENTITY] under [SECTION] [ACT] On conclusion of the trial, the learned Addl. Sessions Judge convicted and sentenced the accused appellants as aforesaid. Hence the present appeal.
4. P.W.-1 is the Dr. [ENTITY], who held the autopsy over the dead body of [ENTITY] and found the following injuries on the person of the deceased.
" 1. Penetrating injury over outerior aspect of middle of left thigh :
size - 1/2" x 6" deep.
2. A lacerated cut injury over lateral aspect of thigh: size 6" x 1/4"
x 1/4".
3. Confusion injury over left back and joint.
4. Penetrating injury over lower part of left side of chest which is piercing diapharam and causing perporating injury of descending column : size - 9" deep and 1/4" depth.
5. Penetrating Injury over front of middle of neck: size 1/2 x 5". It did not pierce any vital organ or vessels of neck.
[ENTITY]. Wounds already described in Column-1.
Plurea, pierced by the perporating wound over left lower part of the Chest. Other organs healthy.
Peritorium healthy except pierced by the penetrating wound-1."
5. In the opinion of the Doctor, the injury was ante-mortem in nature and the death was due to shock and hemorrhage as a result of the injuries sustained.
6. P.W.-2 is Dr. [ENTITY], who examined [ENTITY]. P.W.-11 and found lacerated wound about 4 cm long in middle perttal region and multiple abbrassion on the elbow. The said injured was in the Tezpur Hospital from 20.1.1985 to 24.1.1985. The injury was simple in nature caused by blunt weapon. In view of the medical evidence on record the death of deceased [ENTITY] and the injuries sustained by his brother [ENTITY] on the date of occurrence has not been disputed or challenged.
7. The prosecution case rests on the testimony of eye witness, namely, [ENTITY], P.W. 11, [ENTITY] P.W. 12 and P.W. 7 [ENTITY], P.W. 8 [ENTITY] and other neighbouring witnesses of the place of occurrence, namely, [ENTITY], P.W. 5. In this case we find that P.W. 4 [ENTITY], P.W. 11 [ENTITY] and P.W. 12 [ENTITY] were asked by the deceased to accompany him to his land, petitionerl 1 and 12 had seen the entire occurrence, whereas P.W. 12 reached the place after the assault was over. P.W. 11 is the victim of the assault. He sustained injuries as stated above. These witnesses have fully supported the prosecution story as stated in para-2 above. They have stated that seeing the accused persons working [ENTITY] enquired "What are you doing in my land?" Whereupon accused [ENTITY] took up a spear which was laid on the ground and accused [ENTITY] took up an iron rod and charged at them. [ENTITY] ran for his life towards the main road but before he could reach the main road, accused [ENTITY] struck him on his back with the Iron rod and thereafter the accused [ENTITY] stabbed him on the thigh and chest with the spear. Accused [ENTITY] also assaulted [ENTITY] on the head with lalthi. From the trend of cross-examination and the defence evidence of appellant [ENTITY], the defence tried to show that the deceased and P.W.- 11 sustained Injuries by falling on the bamboo bush. However, in view of the clinching evidence of the eye witness and the medical evidence on record, the above plea is not sustainable. Injuries were caused by giving blows by spear and iron rod and could not have been caused by fall on the bamboo bushes as we find that the three injuries on the person of the deceased [ENTITY] were 5" to 9" deep which would not have been caused by fall while running. Relying on the prosecuticn witness the trial court held that the deceased [ENTITY] and P.W.-l1 were assaulted by the accused persons as a result of which [ENTITY] died and P.W.-11 sustained simple injury. The prosecution evidence is reliable and in view of the overwhelming evidence we concur with the above finding of the trial court.
8. The learned counsel for the appellants has further submitted that this is a case of right of private defence and even in the absence of any special plea to that effect the accused persons are entitled to the benefit of private defence. The law on this point was laid down by the Apex Court In the case of [PRECEDENT], wherein the Apex Court observed:
The law regarding the right of private defence of property or person is well settled and may be briefly recapitulated here. The onus is on the accused to establish this right not on the basis on the standard of proving it beyond doubt but on the theory of preponderance of probability. He might or might not take this plea explicitly might or might not adduce many evidence in support of it but he can succeed in his plea if he Is able to bring out material in the records of the case on the basis of the evidence of the prosecution witnesses or on other pieces of evidence to show that the apparently criminal act which he committed was justified in exercise of his right of private defence of property or person or both."
9. The genesis of the occurrence was possession of land. The deceased had purchased the plot of land and on the ill fated day he was preparing to construct a temporary chali over the said land. The accused person, on the other hand, claims that the land was in their possession. From the evidence on record it is more or less established that the land In question was in possession of the accused [ENTITY] on the relevant date. Learned counsel for the appellant therefore submits that the complainant party was aggressor and as the wanted to forcibly take possession of the land the accused persons apprehended danger to their property and the assault was necessitated in exercise of their right of private defence of property. The question whether the accused persons have exceeded their right of private defence Is altogether a different matter.
10. The four cardinal principle for exercising the right of private defence of person or property are -
"Firstly the accused must be free from fault in bringing about the encounter, secondly, there must be present impending peril to life or of great bodily harm, either real or so apparent as to create honest belief of an existing necessity, thirdly, there must be no safe or reasonable mode of escape by retreat and fourthly, there must have been a necessity for taking life."
11. From the evidence on record we find that the deceased and his companions P.Ws.-11 and 12 were not armed at the relevant time. The accused came out with the plea that they assaulted one of the servants of the accused who sustained injuries on his person. The said servant could not be examined as he is not alive. However, no medical evidence have been produced to show that any member of the accused party did sustain any injury in the above Incident. The above plea was rightly rejected by the trial court. P.W.-5 resides near the place of occurrence and she has admitted that the land was in possession of [ENTITY]. P.W.-5 has deposed that [ENTITY] and his companion got down from their scooters but did not go to the land and thereafter the accused persons chased them and they fled and they were assaulted. P.Ws.-7 and 8 are the two independent witnesses who deposed that after assaulting the deceased the appellants even tried to assault them also but somehow they saved themselves by stating that they have merely brought the goods as their cart has been hired by the deceased. The evidence of P.W.-9, another neighbouring witness whose house is situated at about 15 yards distance from the disputed land is relevant. He has deposed that on the date of occurrence by 6 A.M. the land of [ENTITY] was ploughed by the accused persons and about 8-30 the two accused appellants called P.W.-9 and showed him the spears, khukri, bamboo stick and iron rod which were kept on their land and accused [ENTITY] told him. These are weapons, a 'Bhaona' (Drama) would be staged here today. You people keep Indoors". While the incident was going on, P.W.-9 did hear noise but out of fear, he did not come out. Later on, accused [ENTITY] asked for a glass of water which was given to the accused by his daughter. P.W.-9 also came out and saw blood falling from the spear held by the accused [ENTITY]. The accused further warned him that he should not tell anything to police who may come at any time. P.W.-10 [ENTITY] is another witness. She has also deposed that the accused had shouted loudly "people keep indoor". The evidence of this neighbouring witnesses show that the accused persons knew that the complainant party may try to construct their house or/the land and they were fully prepared being armed with deadly weapons. The right of private defence is available for an act done in goodfaith but the evidence on record shows that the accused persons did not act in good faith.
12. In the case of [PRECEDENT], The Apex Court observed:
The nature of the injuries on the deceased clearly show that there could be no question of a plea of private defence. The accused party had come to teach the deceased a lesson for having raised dispute in respect of land about which they had hinted even a month back when a report was lodged. The manner of the assault the consequence of which was the death of three persons cannot for a moment give rise to a justification for pleading a right of private defence. Moreover [SECTION] clearly enjoins that there cannot be any question of exceeding the right of private defence where the accused causes more harm than it is necessary for the purpose of his defence. The clear evidence in the instant case is that even after victims had fallen down on the ground and were rendered harmless and were not in a position to offer any resistance, the accused continued to assault them until they had inflicted many injuries in these circumstances, therefore, the plea of the right of private defence could not be accepted for a moment."
13. In the present case we find that the deceased no doubt came to the place of occurrence to construct a bamboo chali but the moment they arrived at the place of occurrence they saw the accused persons working In the field and they enquired and they were chased. The complainant party took to their heels but they were not spared and assaulted. As stated above, the deceased party were unarmed and at any time they did not try either to assault the accused persons or do anything to take forcible possession of the land.
14. The facts of the present case are more or less identical with the facts of [PRECEDENT], wherein the Apex Court held:
"From the facts it is clear that the action of the deceased and his sons coming to the land in possession of the accused group was to irrigate the land, which, on the facts of this case, could only amount to criminal trespass within the meaning of [SECTION] [ACT]. The right of the accused appellants, therefore, extended only to causing of harm other than death."
15. In the instant case we Find that since morning - hours the accused persons were working in the field, making preparations to teach the complainant party a lesson and they were armed with weapons. The intended to assault the deceased and even after the latter were running away from the place of occurrence, they were chased and assaulted. This goes to show the Intention of the accused persons. In view of the above we held that this is not a case where the accused persons had acted in exercise of their right of private defence or exceeded the right of private defence. As such, in the facts and circumstances the said plea is not available to them.
16. Learned counsel for the appellant has further submitted that the fatal blows on the deceased were given by appellant [ENTITY] only with a spear and the other accused did not participate in the assault on the deceased. P.W. 12 has categorically stated that it was [ENTITY] who first struck [ENTITY] on the back with a iron rod and when [ENTITY] looked back he was assaulted by the other co-accused [ENTITY]. The medical evidence on record supports the above testimony of P.W.-12 and P.W.-l1 the other injured has categorically stated that he was assaulted on the head by accused [ENTITY]. We find that both accused [ENTITY] and [ENTITY] were working in the field since morning, making preparation for assault and they took part in the assault. This in this case we find that both the accused appellants due to their participation has been convicted with the help of [SECTION] [ACT]. In a recent case of [PRECEDENT], the Apex Court considering the scope and ambit of [SECTION] [ACT] held as below:
Thus to attract [SECTION], [ACT] two postulates are indispensable (1) The criminal act (consisting of a series of acts) should have been done, not by one person, but more than one person (2) Doing of every such individual act cumulatively resulting in the commission of criminal offence should have been in furtherance of the common intention of all such persons. Looking at the first postulate pointed out above, the accused who is to be fastened with liability on the strength of [SECTION], with liability on the strength of [SECTION] [ACT] should have done some act which has nexus with the offence. Such act need not be very substantial, it is enough that the act is only for guarding the scene for facilitating the crime. The act need not necessarily be overt, even if it is only a covert act it is enough provided such a covert act is proved to have been done by the co-accused in furtherance of the common intention. Even an omission can in certain circumstances, amount to an act. This is the purport of [SECTION] [ACT]. So the act mentioned in [SECTION] [ACT] need not be an overt act, even an Illegal omission to do a certain act in a certain situation can amount to an act, e.g. a co-accused standing near the victim face to face saw an armed assailant nearing the victim from behind with a weapon to inflict a blow. The co-accused who could have alerted the victim to move away to escape from the onslaught deliberately refrained from doing so with the idea that the blow should fall on the victim. Such omission can also be termed as an act in a given situation. Hence an act, whether overt or covert, is Indispensable to be done by a co-accused to be fastened with the liability under the section. But if no such act is done by a person, even if he has common intention with the others for the accomplishment of the crime, [SECTION] [ACT] cannot be invoked for convicting that person. In other words the accused who only keeps the common intention in his mind, but does not do any act at the scene cannot be convicted with the aid of [SECTION], [ACT]."
17. In the present case we find that both the accused persons acted in furtherance of their common intention to kill the complainant party and in furtherance of the said common intention did cause the death of [ENTITY] and caused simple hurt to [ENTITY]. The order of conviction and sentence therefore needs no interference.
18. In the result, the appeal is dismissed.