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2007 DIGILAW 707 (ORI)

State of Orissa v. Bauribandhu Rout

2007-09-12

P.K.TRIPATHY, R.N.BISWAL

body2007
JUDGMENT Mr. Patnaik, learned Addl. Government Advocate verbally submits and undertakes to file a memo stating that the counter case, i.e., S.T. No.48D of 1988 was disposed of with an order of acquittal and the State has not preferred any appeal against that order. 2. Heard further argument at length and the judgment is as follows. Eighteen accused persons faced trial in S.T. Case No. 48D of 1988 on the charge of commission of offences under Sections 148/302/149 I.P.C. In addition to that, accused Narendra Rout was individually charged for the offence under Section 302 I.P.C. for the homicidal death of Sambaria - deceased and each of the other accused persons were separately charged either of the offence under Section 323 or 324 I.P.C. for causing hurt to the members of prosecution party. Some of such injured persons were examined as prosecution witnesses. The details in that respect is noted in the 1st paragraph of the impugned judgment. 3. Amongst the accused persons, all of whom figure as respondents in this Government Appeal, accused-respondent No.8 Kurtibash Basantara, accused-respondent No.18 Dukhia @ Dukhaband¬hu Pradhan and accused-respondent No.3 Sukadev Rout, were report¬ed to be dead and that has been noted in the order No.13 dated 5.9.2007. Abatement of the appeal was noted so far as those accused-respondents are concerned. 4. After placing the judgment of the trial Court and the evidence on record, learned Addl.Government Advocate states that so far as the order of acquittal for the offence under Sections 148/302/149 and the individual charge for the offence under Section 323 and 324 I.P.C. are concerned, Government does not press the appeal in view of no illegality in the findings record¬ed by the trial Court. Learned Addl.Government Advocate argues that appellant opposes to the order of acquittal of accused-respondent Narendra for the offence under Section 302 I.P.C. 5. It reveals from the impugned judgment that the occur¬rence took place on 22.9.1987 at about 5.00 P.M. According to the prosecution, the accused party wanted to demolish the fence to make passage through the Government land in possession of some of the prosecution party members and that resulted in the occurrence of assault. Prosecution alleges the accused persons to be the aggressors. Prosecution alleges the accused persons to be the aggressors. On the other hand, the defence plea of all the ac¬cused persons is that on the Government land there exists a passage, i.e., footpath and when a lady from their family had gone to the village tank through that footpath, but while return¬ing she found a fence and due to her protest she was manhandled and assaulted and that led to protest by the accused party mem¬bers, for which the prosecution party members numbering about forty assaulted them. In the process of that occurrence accused Narendra Rout, Nauri Rout, Bauribandhu Rout, Benu Pradhan and Ankura received injuries being assaulted by the prosecution party they acted in self defence while running away. F.I.R. was lodged by them, on police requisition they were medically examined by the Doctor and that resulted in a counter case of which Ext-A is the F.I.R. 5. On appreciation of evidence on record, learned Sessions Judge found that notwithstanding absence of any positive evidence about the existence of a road through the disputed property, the evidence of all the eye witnesses to the occurrence and the R.I. leads to the consequence that a passage, that is, a footpath was in existence which was obstructed after the lady from the family of the accused persons went through that road and she was ob¬structed while returning. This factual finding of the trial Court on the basis of appreciation of the circumstantial evidence though does not confer any right title interest or right of easement on either of the parties but that is sufficient to con¬sider the sequence of event that took place and the consequence thereof. That finding recorded by the trial Court does not suffer from any illegality or perversity. When that is so, as a conse¬quence of that mutual fight on circumstance as indicated above, accused Narendra, who was charged under Section 302 I.P.C. was also attacked by the deceased and the circumstance that about 40 persons were there in the prosecution party leads to reasonable inference that accused Narendra in exercise of right of private defence dealt the blow. In that context, finding recorded by the trial Court is that under the given facts and circumstance right of private defence cannot be denied and therefore he can not be found guilty for the offence of murder. In that context, finding recorded by the trial Court is that under the given facts and circumstance right of private defence cannot be denied and therefore he can not be found guilty for the offence of murder. Besides that the trial Court has recorded finding that ocular statement of the eye witnesses indicates that they were not truthful, because they wanted to suppress the injuries on the persons of the accused and also discrepantly narrated about the injuries on themselves, which runs contrary to the injury reports relating nature of injuries and weapons which could have been used. 6. Those findings have to be tested on the allegation made against Narendra and deceased Sambaria. Since the trial Court adopting a reasonable approach, due to failure on the part of the prosecution to prove the case has granted the benefit of doubt in favour of accused Narendra in addition to the right of private defence, we do not find any good grounds to interfere with the order of acquittal. Accordingly the Government Appeal is dismissed. Appeal dismissed.