KHETRI BEWA Vs. STATE

JUDGEMENT

(1.) This appeal was heard by my learned brothers Das & Panigrahi JJ. They differed in their opinions. Hence it was placed before me for placing it before a third Judge under the provisions of Section 429, Cr. P. C. This case has been proceeding since August, 1949 & all the while the accused has been in prison as she was charged under Section 302 & certain other sections of the Penal Code & convicted under Section 804, I. P. C. & sentenced to 4 years R. I. by Mr. D.N. Das, Ses J., Mayurbhanj Balasore & has never before been enlarged on bail. Notwithstanding that one of the learned Judges of this Court in a well reasoned judgment has adjudged her innocent of the offence, she has not yet been taken out on bail, probably there being none to look after her in this world. Under the circumstances, I felt the necessity of taking up the case, the only other Judge available & the third Judge being absent from the station on duty. Besides, I consider it fair to the learned Judges who heard this case that this third Judge should be one senior to any one of them. The diversity of opinion of the two Judges of the Court is strange. They have seen the things as at poles as under. Hence I have taken great care to scrutiniae things before accepting or rejecting any one of the two opinions.

(2.) I had first of all to ascertain what was the scope of this reference. According to Section 429 I have to give my opinion about the guilt of the accused & the judgment or order should follow such opinion. The section reads:

(3.) The learned Govt. Advocate however, submitted that I was to form an independent opinion after a hearing, though not without taking into due consideration the two diverse opinions pronounced by the other Judges & to deliver the same on which to pass the judgment or order, as the case may be. In support of this contention, he cited an authority of a decision of the Calcutta High Court in the case of Md. Illias Mistri v. The King, I. L R. (1949) 1 Cat. 43. I have, both in latter & spirit, followed this decision but I record my doubts as to the correctness of the dictum. In my opinion what struck me at the beginning waa correct, namely, that I could, unless on scrutinising the materials on record the judgment of the Judge pronouncing in favour of innocence of the accused was considered far from fairly reasonable, or, to be more accurate, not (sic) perverse, give the benefit of reasonable doubt to the accused & acquit her. If the third Judge is bound to have a full hearing & then to arrive at an independent opinion, the Legislature should not have made it a matter of discretion by inserting the words "if any" after the words "such hearing". But however, after having a full hearing of the case & listening to the arguments advanced by the learned counsel of both parties at length, per-uaing the entire body of evidence oral, documentary & circumstantial & on considering them in their differently permiaaible perspectives in the light of the rival opinions of the two learned Judges of this Court with due & regardful consideration for their views, I have arrived at the conclusion that in my opinion the accused is completely protected within her right of private defence of person in inflicting the injuries that caused the death of the deceased Gedi Giri. In view of the long pendency of this oase, I do not propose to defer delivery of my opinion & passing of the order of acquittal to any other day. In view of the abundant materials on record which must be dealt with & exposed in order to demonstrate besides how the prosecution has been guilty of suppression of materials & concoction of evidence & why I did not approve of the opinion of one of the Judges of this Court, I would postpone giving the reasons to future date, but would pronounce that I agree with the opinion & the reasonings of Das J. & hold that the prosecution has failed to bring the charge home to the accused. I, therefore, direct that the accused is acquitted & should be released from the jail custody forthwith & that the order of conviction & sentence is quashed.