SANYA SISA Vs. THE STATE

JUDGEMENT

(1.) ACCUSED Sanya Sisa has filed this appeal against an order dated 25 -1 -1962 passed by Sri C. Mahapatra, Sessions Judge, Koraput -Jeypore convicting him under Section 304, Indian Penal Code and sentencing him to undergo R.I. for seven years in Sessions Case No. 21 of 1961.

(2.) THE prosecution case may be stated as follows: On the midnight of 18 -1 -1961 the accused and his wife Khila Sukri (P.W. 1) were sleeping in their hut, when they found a person to have effected a hole in the eastern wall of their hut and thrust his head into the room through that hole. The accused immediately gave a blow on the head of the trespasser when he immediately withdrew his head. Thereafter he opened the door and found two burglars and chased them. When one of the burglars thread to attack the accused the accused killed him. Thereafter some of the villagers were called and first information was lodged before the police by a villager, Krupasindhu Panigrahi. After investigation and commitment proceedings, the accused was put up for trial before the Court of Sessions.

(3.) THERE is no eye -witness to the occurrence and the whole case depends upon the statement made by the accused himself to other witnesses as to the circumstances under which the deceased was assaulted. In fact the defence taken by the accused is nothing more than what he had stated before the persons i.e. that the deceased wanted to commit burglary in the house of the accused on the night of occurrence cannot be doubted. P.W. 1 the wife of the accused is positive in her evidence that when she and her husband were sleeping inside their hut, they found at about midnight a person thrusting his head through a hole made in their wall and when her husband dealt a blow with a lathi on the head of the intruder, he withdrew and fled away. On opening the door they found two persons running away and the accused chased them with a lathi. A knife was also found near the hole of the wall P.W. 2 has also stated that he found a hole on the wall of the accused, sufficient for a man to get in and a knife lying near about the wall. To the same effect is the evidence of P.W. 3. The investigating officer (P.W. 8) found the hole on the wall with a dimension of about 13" x 20" when he visited the spot and there was also some loose earth near about the hole. Thus, it is proved beyond doubt that there was an attempt to commit burglary in the house of the accused. P.W.1 has proved that the accused chased the burglars which is also admitted by the accused himself. P.W.2 has deposed that the accused called out to him saying that he had killed a burglar and on interrogation the accused informed him that when the deceased was raising his Tangi to give a blow on him, he stuck the handle of the Tangi with his lathi as a result of which the Tangi fell down from his hand when the accused picked up the same and dealt a blow with it on the deceased. To the same effect is the evidence of P.W. 3. Thus, it would appear that from the very start, the accused has clearly stated the circumstances under which the deceased met with his death. From near the deadbody, an iron -rod (M.O.I) was found, and as stated above a knife was also found from near the hole made in the house of the accused. Thus, it is obvious that the burglars came armed with house -breaking instruments and also with a knife probably to terrorise the inmates of the house or to inflict such bodily injuries as might be necessary. That the deceased was also armed with an axe cannot be doubted. According to the evidence of P.W. 1 the accused chased the burglars only with a lathi known as 'Nanseri Theng' but he returned from the spot with a lathi, a Tangi and an iron implement, M.O.I. P.Ws. 2 and 3 have stated that the lathi and the Tangi were stained with blood, The existence of blood -marks both on the Tangi and the lathi would inevitably lead to the conclusion that both these weapons were used and therefore the story as put forth by the accused that he gave a blow with his lathi as a result of which the Tangi fell down and thereafter he inflicted some more blows with the Tangi on the deceased which resulted in his death, appears to be quite plausible. It is not the prosecution case that the Tangi belongs to the accused. In view of this position, the only question that would arise for consideration is if the deceased was armed with a Tangi and wanted to use the same against the accused, and whether the action of the accused in attempting to disarm the deceased giving the fatal blow, can be said to be in exercise of his right of private defence and whether in the circumstances, be can be said to have exceeded that right.