DIBAKAR BARIK AND ANR. Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE appellant Dibakar Barik along with the co -accused Bimbadhar Barik and Siba Barik stood charged under Section 302 read with Section 34 of the Indian Penal Code ('the Code', for short) with having committed the murder of Radhamohan Barik (to be described hereinafter as the deceased Radhamohan) on April 25, 1981 in village Budhapanka in the district of Dhenkanal in furtherance of their common intention. The Appellant Lokanath stood separately charged under Section 302 of the Code with having committed the murder of Kastu Barik (to be described hereinafter as the deceased Kastu) on the same day and at the same place and time by assaulting him to death. The two Appellants with the co -accused Siba and Bimbadhar also stood charged under Section 324 read with Section 34 of the Code for having voluntarily caused hurt to Bhajaman Barik (P.W. 2) and Ranjan Barik (P.W. 4) at the same occurrence. To bring home the charges, the prosecution had examined seventeen witnesses and had placed reliance on a number of documents. The plea of the defence was one of denial of the allegations and of false implication and according to them, whatever had been done by the accused persons was in exercise of their right of private defence both of persons and property.

(2.) ON a consideration of the evidence, the trial court held that the members of the Appellants party were in actual possession of the land on which the occurrence had taken place and that the party of the deceased had taken law into their own hands and had entered the land in the possession of the Appellants party and had been destroying the ridges and preparing new ones and the findings of the trial court would further show that the party of the deceased were the aggressors and were armed with weapons and had caused injuries to the co -accused Siba and Bimbadhar. The learned trial Judge has accepted the case of the prosecution that the Appellant Lokanath had killed the deceased Kastu by pushing a Barchha into the belly of the latter and that the Appellant Dibakar killed the deceased Radhamohan by attacking him on a vital part by means of the knife (M.O. II). He has held that the Appellants did not have the right of private defence of the persons of some members of their party and had also the right of private defence of their property, but the Appellants had exceeded their right. In addition, it has been held that the acts of the Appellants had been committed while they had been deprived of the power of self control by grave and sudden provocation. The learned Judge has held that the Appellants were not guilty of the charge of murder, but could be convicted under Section 304, Part I of the Code. They have accordingly been convicted and sentenced to undergo rigorous imprisonment for a period of eight years. The Appellants and the co -accused persons have been acquitted of the other charges.

(3.) IT is not disputed at the Bar and indeed, it cannot be that the two deceased persons had died homicidal deaths. Appearing on behalf of the Appellants, Mr. Nayak has not challenged the findings recorded by the trial court that one of the Appellants had killed the deceased Kastu and that the other had killed the deceased Radhamohan. He has, however, strenuously urged that the Appellants had not exceeded the right of private defence of their persons and property and were, therefore, entitled to have an order of acquittal recorded in their favour. The learned Additional Government Advocate has supported the order of conviction against the two Appellants as well -founded and has contended that the learned trial Judge went wrong in not carefully discussing the evidence against the co -accused Siba and Bimbadhar and as both of them had pulled the deceased Radhamohan down before the Appellant Dibakar could attack and kill him, they had shared the common intention with the two Appellants and ought to have been convicted for the same offence.