STATE OF ORISSA Vs. SABU DALBEHERA AND ANR.

JUDGEMENT

(1.) 5 persons were put on trial and acquitted. The appeal is filed only against Sabu Dalbehera (accused No. 1) and his nephew Suna Sanra (accused No. 3). Prosecution case is that the Respondents with the persons acquitted chased and assaulted the deceased Dora Saura to death in the jungle near their village Gadiabang. The case of the Respondents is that the deceased was a notorious thief and committed theft of Jawa and Mohula in the house of accused No. 1. On being questioned the deceased threatened to assault them. Accordingly they assaulted the deceased with sticks. The learned Sessions Judge accepted the defence version as true.

(2.) THERE is no controversy that the deceased died as a result of the injuries caused on him. Death was due to shock and haemorrhage. Respondents admitted to have killed the deceased in the circumstances narrated by them. The only point of difference between the prosecution and the defence versions is whether the deceased was killed in the house of accused No. 1 in the course of his committing theft or he was chased to the jungle, while he was carrying away Jawa and Mohula, and assaulted there. It is somewhat remarkable that the learned Sessions Judge did not at all address himself to this aspect of the case and the relevant evidence on the point has been completely overlooked. The dead body of the deceased was recovered from inside the jungle at a distance of 546 feet from the house of accused No. 1. Jawa and Mohula tied up in the wrapper (M.O. II) were recovered from near the dead body. P.ws. 1 and 3 are independent witnesses. They had been to the jungle to bring fire -wood. They saw the accused No. 1 with others chasing and assaulting the deceased. Some criticism was levelled against the discrepancies in their statements regarding the factum of chasing having not been subjected to cross -examination. The learned Sessions Judge did not accept the evidence of p.ws. 1 and 3 only with regard to the identification of the three other accused persons and had not discarded their evidence in other respect. On the basis of the aforesaid evidence, we are of opinion that the deceased was not killed inside the house of accused No. 1, but was chased, while he was carrying away Jawa and Mohula in his own wrapper (M.O. II), and killed inside the jungle. Section 105, Indian Penal Code prescribes the commencement and continuance of the right of private defence of property. The right of private defence of property commences when a reasonable apprehension of danger to the property commences. The right of private defence of property against theft continues till the offender has effected his retreat with the property or tin the property has been recovered. As the deceased was carrying away the property of accused No. 1, there was not only a reasonable apprehension of danger to the property, but the real danger had ensued. Their right of private defence of property thus commenced.

(3.) MR . Panda then contended that the Respondents are not guilty of murder as their case comes within Exception 2 to Section 300, Indian Penal Code which lays down that culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.