STATE OF ORISSA Vs. RAISINGH NAIK

JUDGEMENT

(1.) THE three respondents stood charged under Sec. 302 read with Sec. 34 of the Indian Penal Code ( for short, the 'Code' ) with having committed the murder of Trilochan Naik (to be described hereinafter as 'the decessed') by assaulting him to death by means of an axe and lathis is furtherance of their common intention on May 26, 1978, at Chinger Bandha in the district of Kalahandi and under Sec. 323 of the Code for voluntarily causing hurt to Kumar Naik ( P. W. 1 ), the brother of the deceased. The prosecution had presented a case that owing to previous land dispute between the parties, the three -respondents, being armed, attacked the deceased and P. W, 1 when the latter enquired from the respondents as to why they had ploughed the land belonging to the deceased's party.

(2.) IT is not disputed at the Bar that the deceased had died a homicidal death and that P. W. 1 had sustained an injury on his person. The respondents had taken the specific pleas of right of private' defence both of person and of property. The learned trial Judge reacted the theory of right of private defence of property, but upheld the plea of tight of private defence of person, as according to him, the evidence adduced from the side of the prosecution did show that the deceased and P. W. 1 were the aggressors and had initiated the assault on one of the respondents, namely, Raisingh, whose cry for help brought the other two respondents to the spot and the attack made on the deceased and P. W. 1 by the respondents was in exercise of right of private defence of the person of Raisingh. The learned Judge accordingly found that neither of the two charges had been brought home to the respondents.

(3.) THE learned Additional Standing Counsel has submitted that if the exercise of right of private defence of person is accepted, there it no evidence to substantiate that the exercise of that right bad been exceeded by the respondents. The question for consideration is as to whether the respondents did have the right, of private defence of the person of one of them namely, Raisingh.