GALA BAG Vs. STATE OF ORISSA

JUDGEMENT

(1.) Appellant Gola Bag has appealed against his conviction under section 304 Part II, I.P.C. and sentence of two years R.I passed by the Sessions Judge, Sambalpur.

(2.) Deceased Nitya Bhoi had a daughter through his first wife whom he had given in marriage to accused-appellant Cola Bag. Both the accused and his wife were looking after the land of Nitya Bhoi who bad executed a deed of settlement in their favour. Subsequently Nitya Bhoi brought another lady namely Rukuni (P.W. 7) as his wife and she became pregnant. So quarrel arose between Nitya Bhoi and his daughter Radhika and accused Cola Bag over the property as Nitya revoked the deed of settlement executed by him In the night preceding the date of occurrence i.e. 16-2-1978 the accused along with his wife Radbika and a pair of bullocks came to the house of Nitya Bhoi and stayed there for the night. On the following morning the accused along with his wife went to the field called Dungricap Padelcan situated in the village Negi Tikra. While accused Cola Bag was ploughing the field and his wife was sitting on the ridge with a baby on her lap, deceased Nitya Bhoi reached there with a Tangia and killed his daughter Radbika. It is alleged, after killing her daughter while he was fleeing away accused Cola Bag chased him and assaulted him by means of the stick held by him for during the bullocks. When the deceased fell down the accused snatched away the Tangia from him and gave him several blows as a result of which the deceased died at the spot. Thereafter the accused came to the village and disclosed the fact to the relations of the deceased, namely, P.Ws. 11 and 13. P.W. 11 informed the Ward Member (P.W. 12) who came and enquired from the accused about the incident. Thereafter the Cram Rakhi (P. Ws. 9) who was called by the Ward Member, was informed about the incident. All of them (P.Ws. 9, 11 and 12) went to the spot and sent the accused to the police station and reported the matter before the 1.0. (P.W. 14). P.W. 14 investigated into the case and after completion of investigation submitted charge sheet under section 302, I.P.C. The plea of the accused is one of right of private defence of his body. Prosecution examined 14 witnesses to prove the case. There is no eye witness to the occurrence and the entire prosecution story regarding the actual occurrence is based on the alleged extra judicial confession made by the accused before P. Ws. 9, 11, 12 and 13, the learned Judge considering the evidence of P.Ws. 9, 11, 12 and 13 did not place reliance on the extra judicial confession made by the accused. However, he relied on certain admissions of the accused made in his statement under section 313, Cr. P.C. which according to the learned Judge found corroboration from the facts and circumstances of the case. The accused in his statement under section 313, Cr. P.C. has stated: On the occurrence day while I was ploughing the field and my wife Radhika was sitting on the ridge of that field with the breast feeding baby on her lap. Nitya came from some where and killed my wife. My attention was drawn when the baby cried. When I ran towards that spot, Nitya proceeded towards me by raising his tangia to kill me. When I caught bold of that tangia the stick for driving the buffalows which I carried fell down from my bands. Nitya picked up the same and assaulted me. I brandished the tangia to save my life and in the process Nitya was killed by the tangia brandished by me, I do not recollect what happened immediately thereafter as I lost, my balance of mind.

(3.) As already mentioned there is no eyewitness to the occurrence and the learned trial Judge has also disbelieved the extra- judicial confession made by the accused before P.Ws. 9, 11, 12 and 13. There is no evidence in this case on behalf of the prosecution to prove the guilt of the accused. So it is perfectly obvious that after rejecting the prosecution version as highly improbable and virtually discarding the same, the learned Judge could easily come to the conclusion that the charge was not brought home to the appellant and this would have resulted in the acquittal of the appellant but inasmuch as appellant Cola Bag made a statement to the effect that he brandished the Tangia to save his life and in the process Nitya Bhoi was killed with the Tangia in the exercise of the right of his private defence, the learned Judge felt that he should consider the pied set up by the appellant before arriving at a final conclusion with regard to the charge leveled against the appellant. In considering this part of the case, however, the learned Judge seems to have lost sight of the fact that after rejecting the prosecution version as well as the prosecution evidence in support of that version, there were no materials on the record which would have justified the conviction of the appellant except what is afforded by the statement of the accusedappellant. As it appears in this ease the learned Judge has accepted a part of the statement of the appellant namely, that he inflicted the injuries on the deceased but he has declined to place reliance on that part of the statement of the appellant which explains the circumstances in this case exculpatory in which those blows came to be inflicted by the appellant upon eceased Nitya Bhoi. While doing so the learned Judge has lost sight of the principle that when the Court acts upon the statement of an accused alone and there is no other evidence available which disproves any portion of that statement of the accused, the whole of that statement, and not only a part of it which may go against the accused, should be taken into consideration. The principle also finds support from the decisions reported in Dadarao v. The State of Maharashtra1 and Dwari Behera v. State.2 In this case the accused has clearly stated that when his wife was killed his attention was drawn as the baby cited and when he ran to the spot deceased Nitya Bhoi proceeded towards him to kill him. He caught hold of the Tangia, but the stick which he was holding for driving the buffaloes fell down and deceased Nitya Bhoi picked up that stick and assaulted him. So he brandished the Tangia in order to save his life and in the process Nitya Bhoi was killed. P.W. 12 has stated that the lathi (MO. IV) by which the deceased wanted to assault the appellant is a solid lathi sufficient to cause fatal injury. So even taking this statement of the accused as a whole and the circumstances in which the deceased was going to assault the accused into consideration, it will be clear that such an assault would have reasonably caused the apprehension that death or grievous hurt would otherwise be the consequence of such assault. Taking into consideration the accused statement as a whole, there is no other alternative than to hold that the accused is entitled to the right of private defence.