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2014 DIGILAW 252 (ORI)

State of Orissa v. Bidika Ranga

2014-04-11

D.DASH

body2014
JUDGMENT This is an Appeal under Section 378 of the Code of Criminal Procedure against the order of acquittal dated 21.9.85 passed by the learned Assistant Sessions Judge, Rayagada in Sessions Case No.07 of 1995 acquitting the respondent of the charges under Section 304/307 of IPC. 2.Case of the prosecution in short is that on 28.2.1995 evening the informant P.W.1 namely Bidika Bulaka, Maniaka Tili, Bidika Sonu and Bidika Matia (deceased) were going for collection of subscription for “Dharitri Puja”, a tribal function held amongst Adibasi Community of the District of Rayagada. At that time, the respondent reached at the place on his way back home from his place of work. It is alleged that he was then holding an axe and went near the persons as above named who were collecting the subscription and asked them as to why they were going for that collection. At this deceased Bidika asked the respondent as to why he was not paying the contribution. It is further stated that then the deceased pushed the respondent by means of a lathi and that lathi was then snatched away by the respondent. So there was a scuffle between them and in course of the said scuffle deceased Bidika Matia said to have dealt a lathi blow on the waist of the respondent. The blow being received by the respondent created anger and then it is said that he dealt a tangi blow on the head of the deceased for which deceased Bidika sustained bleeding injury on his head and fell down on the ground. The next morning he was moved to the hospital and the matter was reported to the police. Bidika stayed in the hospital from 2nd March, 1995 to 13th April, 1995 as an indoor patient. P.W.10 the doctor, discharged from the hospital though the condition was not free from being critical. On 28.4.1995 Bidika died at home. 3.Plea of the defence is one of complete denial. The Respondent has specifically stated that while deceased dealt the blow of his waist, he let lose the tangia that he was holding to ward off the blow but it hit the deceased on his head causing injury. On 28.4.1995 Bidika died at home. 3.Plea of the defence is one of complete denial. The Respondent has specifically stated that while deceased dealt the blow of his waist, he let lose the tangia that he was holding to ward off the blow but it hit the deceased on his head causing injury. It has alternatively been stated that he had no intention to give the blow as it had fallen and the same cannot be attributed to have been dealt knowingly that it would hit on the head of the deceased. The blow being given after the lathi blow was received by the respondent, it is said to be in exercise of right of private defence. 4.During course of trial, prosecution examined 10 witnesses in order to substantiate the charges against the respondent. P.W.1 is the informant, an eye witnesses to the occurrence, P.Ws.2 to 5 are also the persons who were at the spot, P.W.3 is a witness to seizures of axe and lathi. The Assistant Surgeon of Rayagada head quarter hospital has been examined as P.W.6 who had admitted the deceased to the hospital, examined him on police requisition and so also P.W.7 is another doctor. The I.O. has been examined as P.W.8. P.W.9 and P.W.10 have been examined as the attendants of the deceased although. 5.The Trial Court on analysis of evidence of the prosecution witnesses has come to the conclusion that the deceased met his death on account of the injury sustained by him on his head and thereafter on final analysis of evidence, he has arrived at a conclusion that the injury has been caused on the head of the deceased by the respondent in exercise of his right of private defence. Therefore, the respondent has been acquitted of the charges, which is now impugned in this appeal. 6.Learned counsel for the State submits that the Court below had erred in law by accepting the plea that the respondent had in exercise of the right of private defence caused the said injury. Therefore, the respondent has been acquitted of the charges, which is now impugned in this appeal. 6.Learned counsel for the State submits that the Court below had erred in law by accepting the plea that the respondent had in exercise of the right of private defence caused the said injury. According to the learned counsel for the State, it is a clear case the respondent ought to have held liable for commission of offence under Section 304-I of I.P.C. Therefore, he submits that the finding is perverse and unsustainable in the eye of law being based on improper appreciation on of evidence as well as being not in consonance with the settled position of law concerning the exercise of right of private defence. Learned counsel appearing on behalf of the respondent supports the finding rendered by the trial Court in ultimately submitting that the order of acquittal calls for no interference. 7.On such rival submission, this Court is now called upon the examine the evidence to find out as to whether the finding rendered by the trial Court that the blow was given upon the head of the deceased is in exercise of Right a Private Defence of a Respondent or not. It is a settled position of law that the plea of right of private defence is not required to be established by leading evidence beyond reasonable doubt. It can also be established showing circumstances as they emanate from the evidence collected in course of trial being let in by the prosecution and also other attending circumstances. Even when the evidence is not so clear with regard to the exercise of right private defence, but if the Courts finds the evidence acceptable on the score that the happening of the incident and its manner as suggested by defence as to have been in exercise of such right of private defence on the part of the accused, the same would enure to the benefit of the accused. 8.The settled position of law regarding the powers to be exercised by High Court in an appeal against the order of acquittal is that while High Court has full powers to appreciate the evidence upon which an order of acquittal is based and to act on its own thereof, it will not do so lightly and will be slow to reverse an acquittal, except for strong and compelling reasons when it differs from that of the trial Court. The paramount consideration in the matter is to avoid miscarriage of justice. Of course where two views are possible and the trial Court has taken a reasonable view in acquitting the accused, the High Court in appeal cannot interfere with such finding except when the finding is perverse, based on erroneous appreciation of evidence and a serious miscarriage of justice has been caused, when the High Court has ample power to reverse that finding. 9.In the present case, it stands admitted that deceased Bidika Matia had first dealt a blow at the waist of respondent by means of a lathi and thereafter the prosecution case is that the deceased dealt a tangi blow upon the head of the deceased. The case of the defence is that he had not intended to cause the tangi blow on the head of the deceased but it was in the process of warding off the blows of deceased by lathi on his waist, the injury has been received on the head of the deceased. The deceased admittedly was at that time with Maniaka Tili, Bidika Sonu and Bidika Naria and they were in a group collecting subscription. So the deceased first when asked the respondent as to why he is not giving the contribution, there remained every reason for the respondent to be apprehensive of being assaulted. Thus apprehending further violence it is neither unlikely nor absolutely unacceptable for the respondent not to have attempted to ward off further blow by means of that Tangia that he was holding. 10.It has been deposed by P.W.1 that there was a quarrel between the accused Bidika at the first instance and in course of quarrel the respondent dealt an axe blow on the head of the Bidika Matia. 10.It has been deposed by P.W.1 that there was a quarrel between the accused Bidika at the first instance and in course of quarrel the respondent dealt an axe blow on the head of the Bidika Matia. This witness is suppressing the first part of the incident that it is the deceased who had first dealt blow by means of a lathi on the waist of the respondent. In cross-examination he has simply stated that deceased before being dealt with the blow by means of axe on his head by the respondent had given a push to the respondent and then it is further stated that the deceased had given successive blows three to four times by means of a stick on the person of the respondent. It is also stated that while Bidika Matia was dealing the blows on the person of the respondent, he was raising cry and requesting all others to intervene. So the apprehension in the mind of respondent with regard to imminent danger to his life is quite apparent from the evidence of this witness P.W.2 the other witness has stated that respondent when came there from the ‘dongar’, Bidiaka asked him to pay subscription immediately, but instead of making the payment, the respondent dealt tangi blow on the head of the deceased and fled away from the spot. This is not the picture which is being given by P.W.1. Witnesses P.W.3 and P.W.8 state that on seeing the respondent, deceased asked for the subscription but the accused instead of making any payment retortingly wanted to know the reason for such collection. At that point of time as has been deposed by P.W.4 that deceased dealt a push to the respondent and then dealt two to three blows upon him by means of a lathi and there was scuffle. In course of the same it is said by this witness that respondent dealt a tangi blow on the head of the deceased and fled away from the spot, when deceased fell down on the ground. So from the evidence of all these witnesses, it is clear that the deceased was the aggressor and he had first attempted not once but successively by giving blows upon the person of the respondent. So from the evidence of all these witnesses, it is clear that the deceased was the aggressor and he had first attempted not once but successively by giving blows upon the person of the respondent. In such a situation, the respondent who is also a member of the Schedule Tribe with their usual bent of mind might have been enraged and the apprehension in his mind with regard to the danger to his life is not altogether ruled out. Rather circumstances show that the respondent was tolerant to a possible extent with his maturity and understanding level. P.W.5 has further stated that when the respondent came who was asked by the deceased about the payment of subscription and that he challenged by saying that he would pay later, and the respondent immediately thereafter dealt tangi blow on the head of the deceased which is not the evidence of other witnesses. This witness is also suppressing the first part of the occurrence that it is the deceased who had first dealt successive blows upon the respondent. The evidence of all these witnesses taken together and viewed cumulatively even though strictly do not establish a case of right of private defence but the occurrence appears to be have taken place first at the instance of the deceased and the way of happening of the incident thereafter till its end give sufficient indication that the blow which proved to be fatal might have been given under the circumstances and situation as suggested by defence. In case of “Seriyal v. State of Tamin Nadu”; AIR 1987 SC 1289 , the position of law settled is that where materials, though do not establish right of private defence but of those do indicate the happening of the incident in the manner as suggested by accused, the accused is entitled to be acquitted. In that case the materials though were not found enough to hold in favour of right of private defence but the materials produced in cross-examination and other circumstance were found to indicate that the incident might have happened in a manner in which it was suggested by the accused. In that case the materials though were not found enough to hold in favour of right of private defence but the materials produced in cross-examination and other circumstance were found to indicate that the incident might have happened in a manner in which it was suggested by the accused. With that view, the Apex Court found the prosecution to have not been able to establish the offence against the accused beyond reasonable doubt and thus the accused was acquitted giving the benefit of doubt even in the absence of establishment of a case of the right of private defence. The principle set out as aforesaid applies within all its force to the case in hand in view of the discussion of evidence as made above. In view of aforesaid no fault is found with the ultimate order of acquittal. 11.In view of above, the appeal stands dismissed as the order of acquittal fall for no interferes. Appeal dismissed.