Decided on April 02,1973

Rabindranath Dalai Respondents


R.N.MISRA, J. - (1.) THIS appeal has been filed by the State of Orissa under Section 417 (1), Criminal Procedure Code against the judgment of acquittal of the respondents who were charged of offences punishable under Sections 302/34 and 324 of the Indian Penal Code passed by the learned Additional Sessions Judge, Baripada.
(2.) RATHIA and Dukhu (respondent No. 2) were close relations, Dukhu being Rathia's father's brother's son. Rathia's widow, Gurubari (P. W. 10) sold about 3 mans of land for the consideration of Rupees 800/ - to Rabi, the respondent No. 1, on 14.10.1960, by a registered sale deed (Ext. B). The prosecution alleged that no consideration had been paid for the sale and on 9.11.1962, P. W. 10 cancelled that deed of sale. Although the Investigating Officer (P. W. 21) is said to have seized this deed of cancellation, it has not been produced. Gurubari claimed to have remained in possession throughout and under a sale deed dated 1.6.1967, the deceased Kunar Majhi claimed to have purchased 15 gunths out of the same land for a consideration of Rs. 300/ -. This sale deed has also not been produced. On 3.6.1967, at about 6.30 a.m. when Kunar and his son, Sahadeb (P. W. 16) came upon the property for cultivation and manuring, resistance was offered by Dukhu and Rabi (respondents). The prosecution alleged that the two respondents assaulted both the deceased and his son (P. W. 16). The injuries sustained by the deceased proved fatal and he succumbed to them at the hospital. F. I. R. (Ext 14) was lodged at 11.15 a. m. on the same day by P. W. 16. P. W. 21, the Investigating Officer, arrived at the spot at 5.40 a. m. on 4.6.1967. At 8.40 a. m. Dukhu was arrested and by mid -day Rabi was taken into custody. Ultimately the respondents were committed to the Court of Session to stand their trial for the offences of murder and assault. The defence of the respondents was that the land was in their possession from the time of purchase (Ext. B), and they were cultivating the same. On the date of occurrence the deceased and his son along with some others tried to forcibly trespass and possess the land. The respondent No. 1 who was a teacher of the Kusumi U. P. School in the neighbourhood was not at the spot and was present at the school which was having morning sitting when the occurrence took place. The deceased and his son forcibly entered upon the property and wanted the respondent No. 2 to withdraw from the land. Dukhu offered resistance and was beaten up and when P. W. 16 was trying to give further blows to him, his lathi blow accidentally fell on the head of the deceased. Dukhu alleged that he had become unconscious as a result of being beaten up and later, when he gained senses, he returned to his village. The respondent No. 1 thus raised the plea of alibi and the respondent No. 2 the plea of right of private defence.
(3.) 21 Witnesses were examined for the prosecution of whom P. Ws. 2, 5, 6, 7, 8, 9 and 10 came to speak about possession of Gurubari and the deceased, and P. Ws. 11, 12, 13, 14, 15 and 16 were said to be the eye -witnesses to the occurrence. On an analysis of the evidence the learned Sessions Judge came to hold: - (1) The plea of alibi raised by the respondent No. 1 has not been established; (2) The disputed property was in possession of Dukhu and his son from the time of Ext. B and neither P. W. 10 nor the deceased was in possession of the same at any time thereafter. On the date of occurrence, for the first time, the deceased and P. W. 16 were attempting to have possession of the property; (3) The respondents had right of private defence of property and they were entitled to keep away the deceased and his people who were interfering with then possession; (4) The accused persons had not exceeded their right of private defence of property inasmuch as the prosecution failed to establish that the accused persons caused the death of the deceased Kunar Majhi by assaulting him. Taking into consideration and injuries found on P. W. 16 the accused persons cannot be said to have exceeded their right of private defence; (5) Dukhu had injuries on his person and the prosecution had failed to explain the existence of such injuries which must have been caused in the scuffle said to have taken place at the time and place of occurrence which formed the basis of the Sessions trial. On these findings he acquitted the respondents. ;

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