STATE OF ORISSA Vs. KHORA GAGARU

JUDGEMENT

(1.) THIS is an appeal by the State of Orissa against the judgment of the Sessions Judge of Koraput, acquitting the Respondent who was tried in his court for an offence under Section 304/34 Indian Penal Code. The Respondent's brother Khora Lachmi was also tried for the same offence, but the learned Sessions Judge convicted him under Section 323, Indian Penal Code. In acquitting the Respondent the learned Sessions Judge observed that he was satisfied that he had the right of private defence of person.

(2.) THE facts alleged by the prosecution are as follows. The parties belong to village Muktipalli P.S. Mlalkangiri in Koraput district. On the 3rd March 1961 at about 7 p.m. p.ws. 1 to 5 were sitting in front of the house of P.W. 4 after taking Salpa juice. Apparently they were all somewhat intoxicated. A petty quarrel and scuffle ensued between P.W. 4 and P.W. 2 on account of the former demanding a sum of Re. 1/ - which was taken from him by the latter. The scuffled to an altercation and just then Respondent Gagaru was said to have arrived there and given a blow with his stick to P.W. 2 who ran away from the place. Thereafter when P.W. 1 wanted to intervene he was also given a blow by the Respondent. The deceased Khillo Ghasi who was the uncle of P.W. 2 was then said to have come to the spot and given a blow on the head of the Respondent. Thereupon the latter gave him some blows on his head in consequence of which he fell down and subsequently died of fracture of the skull bone.

(3.) BUT the other two witnesses, namely p.ws. 3 and 4 "have given a slightly different version. According to them, after the deceased had given a blow on the head of the Respondent the latter snatched away his stick and then gave him blows on his head with that stick. This story, if true, definitely negatives the plea of right of private defence because after the deceased had been disarmed the Respondent had no right to hit him on his head in exercise of his right of private defence. Such an attack on the deceased would be by way of retaliation and would not be justified. But the aforesaid story put forward by p.ws. 3 and 4 has not been spoken to be p.ws. 1 and 5, nor was such a version given by P.W. 3 in the earliest information lodged before the police (Ext. 11). It must be rejected as an after thought, meant to deprive the Respondent of his right of private defence of person.