The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No.295 of 1999 (In the matter of an application under Section 374(2) read with Section 382 of the Criminal Procedure Code, 1973) Raghunath Khatei @ Kheti ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Mr. D.P. Dhal, Senior Advocate For the Respondent : Smt. Siva Mohanty, Additional Standing Counsel CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 09.09.2025 :: Date of Judgment: 25.09.2025 S.S. Mishra, J. The present Criminal Appeal is directed against the judgment and order dated 30.11.1999 passed by the leaned Additional Sessions Judge, Sonepur, in Sessions Case No.36/30 of 1999 (arising out of G.R. Case No.12 of 1999), whereby the appellant was convicted under Section 326 of I.P.C. and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,000/-, in default to undergo further R.I. for six months. 2.
Legal Reasoning
Heard Mr. D.P. Dhal, learned Senior Counsel, for the appellant and Smt. Siva Mohanty, learned Additional Standing Counsel for the State. 3. The prosecution case in brief is that on the morning of 12.01.1999, the informant (P.W.1) and his labourers (P.W.2- Lalit Kheti and one Asharam Mendli) were ploughing a plot of land (case land). A dispute arose when Dingar Kheti (father of the appellant) allegedly entered the land, unyoked the bullocks and raised objection. After an initial altercation, Dingar left the field. He is said to have returned shortly thereafter, accompanied by his son, the appellant, who was armed with a spear (barchi). The appellant suddenly attacked P.W.2 when he was ploughing and inflicted a deep penetrating wound on the right side of his Page 2 of 13 chest. P.W.2 was treated as indoor patient at VSS Medical College, Burla. F.I.R. (Ext.1) was lodged shortly after the occurrence, naming the appellant. 4. The Investigating Officer seized the barchi (M.O.I.) and ultimately arrested the appellant. The doctor (P.W.7) produced injury report Ext. A recording of grievous injury to P.W.2 and also injuries on Dingar Kheti (father of the accused). 5. The prosecution examined P.Ws.1, 2, and 4 as eye-witnesses to the occurrence. The defence case was that the case land was in possession of the father of the accused, that the informant and his men had come to take forcible possession and had assaulted the father, and that the injuries on the father and on the parties were the result of that exchange. A counter F.I.R. was placed on the file and is noted in the record. The appellant gave his statement under Section 313 Cr.P.C. and denied the charge. D.W.1 Rohita Deep was examined for the defence. 6. The learned trial Court while rejecting the charge under Section 307 of I.P.C. on the ground that the injury, though grievous, was not Page 3 of 13 opined by the doctor to be sufficient in the ordinary course of nature to cause death, the Court held the appellant guilty under Section 326 I.P.C. for voluntarily causing grievous hurt by means of a sharp weapon. Considering the seriousness of the assault with a spear and the nature of injury sustained by P.W.2, but also taking into account the circumstances of the case, the trial Court sentenced the appellant to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,000/-, in default to suffer further rigorous imprisonment for six months, and declined to extend the benefit of the Probation of Offenders Act. The relevant portion of the aforesaid judgment is extracted herein below for convenience ready:- “xxx xxx….In other words, the evidence of the injured p.w.2 has put more credence to the prosecution version. The evidence of the injured witness despite some minor discrepancies can be the best piece of evidence and the reliance can be placed on his version even if he is belonged to a rival group and was interested. Conviction can be sustained on his evidence for the simple reason that the evidence of the injured cannot be discarded for his interestedness. In such circumstances, the non-examination of Asharam Mendli and the boundary tenants, namely, Rohita Ganda, Siba Dip and Bhandar Gountia is not fatal to Page 4 of 13 In other words, non- the prosecution case. examination of Asharam Mendli and other three persons named above would not defeat or cast a doubt on the prosecution case in view of the admitted fact that p.w.2 was assaulted in the case land by the accused with a spear (M.O.I) and had sustained grievous injury on his right side chest. The evidence of P.Ws 1,2, and 4 corroborated by medical evidence and recovery of spear (M.O.I), the weapon of offence is of much credence and I rely on them. However, the doctor has not opined that the injury on p.w.2 could have in ordinary course of nature caused the death of p.w.2. 18. In that view of the matter, having gone through the evidence and the materials on record. I find that accused and none else had stabbed p.w.2 and had caused grievous injury on his right side chest. The accused is therefore found guilty u/s 326 I.P.C. and not u/s 307 I.P.C. as the injury was not sufficient in ordinary course of nature to cause the death of injured p.w.2. The accused is accordingly convicted u/s 326 I. P.C.” 7. I have carefully considered the submissions advanced by the learned counsel for the appellant and the learned counsel for the State and have gone through the records of the case, including the depositions of the witnesses, the medical evidence and the documents produced. Page 5 of 13 8. It emerges that the entire case revolves around a land dispute and the altercation that ensued on the date of occurrence. The prosecution story is that while P.W.1 was ploughing his land through P.W.2 and another labourer, the accused came armed with a spear and assaulted P.W.2 on his chest. It is noteworthy that both P.W.1 and P.W.2 admitted in cross-examination that there was a heated altercation with the father of the accused over ploughing, and that P.W.1 was enraged by the protest. This admission shows that the informant party was not wholly innocent but had contributed to the provocation. Extract of P.W.1’s testimony is profitable to be reproduced for true appreciation:- “I am the informant in this case. Accused is my nephew being the son of my younger brother. 10 months back on one Tuesday at about 8 AM occurrence took place in my land locally known as Rugudiatukri in village Bhandar. On the aforesaid date and time while my labourer namely, Lalit Kheti and Asharam Mendli were ploughing my aforesaid land in my presence at that point of time, the father of the accused entered into my land and unyoked the bullock. This fact enraged me and there was altercation in between me and the father of the accused…….” Page 6 of 13 9. It is an admitted position on record that P.W.2 sustained one stab injury on the chest. The doctor (P.W.7) opined it to be grievous and caused by a sharp cutting weapon. However, the same doctor categorically stated that on the very same day he had examined Dingar Kheti, the father of the accused, and found four injuries on his person, including one lacerated injury on the scalp, one on the skin, one incised wound and 3 in nos. of abrasions. The injury report (Ext. A) was proved beyond doubt. Extract of P.W.7’s testimony is profitable to be reproduced for true appreciation: “On 12.1.99 I had also examined Dingar Kheti s/o late Kunja of village Piteipali at 11.30 AM on police requisition. While examining Dingar Kheti I had noticed four injuries on his person. Ext.A is my report in respect of the injuries found on the person of Dingar Kheti and Ext.A/1 is my signature therein. Dingar Kheti had sustained lacerated and incised wounds on his head and other part of his body. I have mentioned in my report ext.A that injuries on Dingar might have been caused by sharp cutting and hard and blunt object….” It is further admitted that the father of the accused lodged an F.I.R. regarding the same occurrence, which was duly registered and Page 7 of 13 proved through the Investigating Officer (P.W.8). Extract of P.W.8’s testimony is profitable to be reproduced for true appreciation:- “xxx xxx….It is a fact that for the occurrence of the same day and time there has been also a case registered against the injured, informant and one Asharam on the report of the father of the accused of this case. Ext.B while is the formal F.I.R. drawn by me ext.B/1 is the written F.I.R. In the counter case, Dingar Kheti also sent to C.H.C. Binka for his examination under my requisition marked Ext.A/2.” Thus, the occurrence was not one-sided, but a case of free fight between both parties arising out of land dispute. 10. It was next urged that the prosecution failed to satisfactorily explain the injuries sustained by Dingar Kheti, the father of the appellant. Indeed, the medical evidence records that Dingar also suffered injuries in the occurrence. The law as laid down in Mohar Rai v. State of Bihar, reported in 1968 AIR 1281 and Lakshmi Singh v. State of Bihar, reported in AIR 1976 SC 2263, is that where the prosecution completely suppresses or fails to explain serious injuries sustained by the accused, the prosecution case may become doubtful. In Lakshmi Singh (supra), it was emphasised that the omission to explain Page 8 of 13 such injuries assumes much greater importance where the prosecution evidence consists of interested or inimical witnesses or where the defence version appears equally probable with that of the prosecution. In those circumstances, unexplained injuries may render it unsafe to rely on the testimony of prosecution witnesses. The Hon’ble Supreme Court held thus:- “The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. In the instant case, when it is held, as it must be, that the appellant Dasrath Singh received serious injuries which have not been explained by the prosecution, then it will be difficult for the Court to rely on the evidence of PWs. 1 to 4 and 6 more particularly, when some of these witnesses have lied by stating that they did not see any injuries on the person of the accused. Thus neither the Sessions Judge nor the High Court appears to have given due consideration to this important lacuna or infirmity appearing in the prosecution case. We must hasten to add that as held by this Court in State of Gujarat v. Bai Fatima (supra) there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the Page 9 of 13 accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit- worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. The present, however, is certainly not such a case, and the High Court was, therefore, in error in brushing aside the prosecution case on unconvincing premises.” infirmity serious this in In the present case, the seven injuries on the father of the accused, including a head injury, were not even attempted to be explained by the prosecution witnesses. This failure goes to the root of the matter and demolishes the credibility of the prosecution witnesses. 11. The right of private defence is a safeguard conferred by law to enable a person to protect his body and property, or that of another, when faced with an imminent threat of harm. This right arises only when there is no time to have recourse to public authorities, and the individual is suddenly compelled to ward off the danger. However, the force employed in such defence must be proportionate to the nature of the threat and confined within the limits necessary to repel the aggression. It is true that the accused dealt a single stab to the chest of P.W.2, which Page 10 of 13 was grievous. But the law does not require a person exercising private defence to weigh in golden scales the exact measure of force to be used. As laid down in Darshan Singh v. State of Punjab, reported in (2010) 2 SCC 333, a defender cannot be expected to modulate his defence with arithmetical precision in the heat of the moment. What is relevant is whether the force used was grossly disproportionate or not. The Hon’ble Supreme Court held thus: “39. The law clearly spells out that right of private defence is available only when there is reasonable apprehension of receiving the injury. The law makes it clear that it is necessary that the extent of right of private defence is that the force used must bear a reasonable proportion of the injury to be averted, that is the injury inflicted on the assailant must not be greater than is necessary for the protection of the person assaulted. A person in fear of his life is not expected to modulate his defence step by step, but at the totally time same disproportionate.” should not be it The learned trial Court brushed aside crucial facts and simply held that the accused exceeded his right. The relevant portion of the trial Court judgment is extracted herein below for ready reference: “The accused is proved to have inflicted grievous injury on p.w.2 without being attacked. He therefore, Page 11 of 13 can be attributed with heavy intention or knowledge that stabbing by spear on the right side of chest of p.w.2 was likely to cause death. Therefore, he appears to have clearly exceeded the right of private defence in stabbing p.w.2.” However, the comparative injuries show otherwise. P.W.2 sustained only one stab injury, whereas the father of the accused received multiple injuries, even on the head, suggesting that the accused acted to rescue his father, who was under assault. Here, the accused’s single retaliatory blow cannot be termed as excessive or unjustified. 12. Moreover, the informant admitted that the land was under litigation and not recorded in his name. Thus, the claim of lawful possession is not firmly established. In such circumstances, the accused clearly had the right of private defence of his father’s person. 13. In view of these circumstances, the conclusion reached by the learned trial Court that the accused exceeded his right of private defence is wholly unsustainable. On the contrary, the evidence on record, particularly Ext. A, the injury report and the counter-FIR lodged by the father of the accused clearly tilt the balance in favour of the defence. The Page 12 of 13 prosecution has failed to present a wholly truthful version of events, and its omission to explain the multiple injuries on the accused’s side renders its case unreliable. The benefit of doubt must, therefore, be available to the appellant. 14. For the foregoing reasons, the conviction and sentence of the appellant under Section 326 of I.P.C. as recorded by the learned Addl. Sessions Judge, Sonepur, in Sessions Case No.36/30 of 1999, is hereby set aside. The appellant is acquitted of all charges. The bail bonds, if any, furnished by him stand discharged. 15. Accordingly, the Criminal Appeal is allowed. (S.S. Mishra) Judge The High Court of Orissa, Cuttack. Dated the 25th September, 2025/Swarna Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 26-Sep-2025 15:53:30 Page 13 of 13