THE STATE Vs. ADWAITA BEHERA AND ORS.

JUDGEMENT

(1.) THIS is a Government appeal, against an order of acquittal, passed by the learned Sessions Judge, Cuttack, by which he acquitted the Respondents (fifteen in number) of various charges under Section 302 read with Sections 149, 147, 323, 324, 214 and 146, Indian Penal Code. The Respondent No. 8 Kangali Behera has since died and his name has been expunged.

(2.) THE question, whether the accused -Respondents had, in the circumstances of the case, right of private defence, is the main point involved in this appeal, arising out of an incident in the morning of November, 19, 1958 at 9 a.m., in a paddy field in village Halididiha within Binjharpur police station in the district of Cuttack, where there was a class between the accused party and the prosecution party.

(3.) WITH this general background, we now come to what actually had taken place, leading to the clash which ended in the death of one person and injuries (both simple and grievous) on several others. The prosecution case is that on the forenoon of November 19, 1958 when the said Kelei Mallik p.w. 4, alleged to be a Bhagchasi of Adwaita Panda -was cutting paddy in the western plot No. 600 along with Kanhu Mallik (who was killed during the occurrence) and others, the accused persons along wit some others armed with Balams, Barchhas etc. came to the field and surrounded the prosecution party; that the accused Adwaita Behera confronted the said Kelei Mallik with the question as to who asked him to cut paddy in the field; thereupon Kelei Mallik replied saying that he had not it in his right as he had raised the crop; that thereupon the accused Adwaita Behera pointed a Balam threatening to kill him; that it was at this state, the said Kanhu Mallik intervened by way of mediation but the accused Adwaita Behera took exception to Kanhu's intervention and pierced the Balam into Kanhu's chest whereupon he fell down; that thereafter Kelei Mallik and his Mulias started running a way for safety but they could not escape without being hurt; that the accused persons left the scene immediately for their village without receiving a single scratch. The prosecution case, with regard to other accused persons, who also participated in the episode, resulting in injuries caused to different other persons of the prosecution party, is stated in the judgment of the learned Sessions Judge; who fully referred to individual charges against the different persons as stated therein. In the sequence of events that followed after Kanhu Mallik was killed in the circumstances aforesaid, it is stated that p.ws. 3, 16, 17 and 18, who were near about in their respective neighbouring -fields carried the injured persons and the dead body of the deceased by two Dangas to the police station, 10 miles away from the place of occurrence, where Kelei Mallik as informant lodged the First Information Report the same day at 6. p.m. It is also the prosecution case that none of the accused persons were to be found in the village when the investigating officer visited the spot the following day; the accused persons remained in hiding for sometime and ultimately some of them surrendered and some were apprehended, the last to be apprehended being accused No. 1 Adwaita Behera who was arrested on December 20, 1958.