NAKAFODI ALIAS JADUMANI PARIKHA Vs. STATE

JUDGEMENT

(1.) THE appellant Nakafodi alias Jadumani Parikha who was the first accused in the Court below was convicted by Shri R. C. Misra, Sessions Judge, Cuttack-Dhenkanal for murder punishable under Section 302 I. P. C. and was sentenced to imprisonment for life. He was tried along with his brother Lakshmidhar Parikha, but the learned Sessions Judge acquitted Lakshmidhar.

(2.) BOTH the accused were charged under Section 302/34 I. P. C. for having, in furtherance of their common intention knowingly and intentionally, caused the death of one Judhisthir Misra on 6-7-1955. Both of them were also tried on charges under Section 302 I. P. C. the appellant for intentionally causing the said death by striking him on his neck with a Katari (M. O. I) and Lakshmidhar by striking him on his buttock with a Farsa (M. O II ). Lakshmidhar was further charged under Section 324 I. P. C. for causing hurt to Gobar-dhan Misra (P. W. 42), the son of the deceased, at the time of the occurrence. The learned Sessions Judge acquitted Lakshmidhar of the charge mot only under Section 302/34 I. P. C. holding that there was no common intention, but also of the charge under Section 302 I. P. C. holding that it was not certain whether the blow given by him with the Farsa was given before the death of the deceased or after his death. With regard to the charge under Section 324 I. P. C. against Lakshmidhar for causing hurt to P. W. 42, the learned Sessions Judge acquitted him holding that the injury was caused in exercise of the right of private defence of body.

(3.) THE prosecution case is briefly as follows. An agnatic Bhanji of the deceased Judhisthir Misra was kept by the appellant without any regular form of marriage on account of which the villagers socially boycotted him. The two accused had another natural brother Nilmani who was given in adoption in Keonjhar District and who is also the husband of the sister of P. W. 19. Nilamani demanded a share from the accused in their ancestral properties and in a Panchayat in which the deceased was a member it was decided that the accused should five a share to Nilmani, An anabadi piece of land belonging to the deity of the village was in occupation of the deceased. The land had a wide ridge on which the appellant had grown red-gram on account of which there used to be frequent quarrels between him and the deceased ver the cutting of earth from this ridge and there was a quarrel on account of this when the appellant pushed the deceased. On account of these circumstances, according to the prosecution, relation between the appellant and the deceased had been strained. This bitterness was aggravated a day before the occurrence when a pair of bullocks belonging to the appellant grazed the crops of the deceased in presence of P. W. 15 the temporary Mulia of the appellant. P. W. 42, the son of the deceased, detected it, ran to the spot, drove the bullocks and flung vulgar abuses at the appellant. Next morning, P. W. 15 the Mulia refused to take the bullocks for grazing due to that incident. It is stated, the appellant therefore was wild with P. W. 48 and early in the morning at P. W. 19's shop on the date of occurrence he questioned the deceased as to the propriety of the conduct of his son in flinging such abuses at him in his absence instead of impounding the cattle. There was some quarrel between them. Thereafter the deceased and his son went to their fields and their servant (P. W. 20) who had gone in advance was ploughing. The deceased began transplanting paddy seedlings and at a distance of about 9 to 10 Kiaris further up P. W. 42 was irrigating the lands. It is alleged by the prosecution that the appellant with a Farsa in hand proclaiming that he would slay the deceased and put on a Chitan his forehead with his blood, rushed through the villape and that P. Ws. 10 and 11 dissuaded and P. W. 11 brought the appellant back to his house. A little later, the appellant rushed out of Ms house with a huge Katari (M. O. I) in hand followed by his brother Lakshmidhar with a Farsa (M. O. II), both proclaiming as aforesaid. From a distance, they called upon P. W. 42 to pray his Ista Debata (favourite deity) and call upon his father. It is stated that being afraid of this challenge, P. W. 42 ran towards his father while the two accused were still proceeding towards him. The unarmed deceased and his son with a lathi then advanced towards the accused and both parties met at Padan Misra's land, when the appellant Nakafodi gave a Katari blow on the deceased, in consequence of which the deceased fell down. P. W. 42 dealt a lathi blow on Nakafodi. They caught hold of each other and struggled. In the meanwhile Lakshmidhar gave a Farsa blow on the buttock of the deceased and another blow on P. W. 42 on his right shoulder blade. During the struggle, the Katari from the appellant's hand had slipped. The appellant picked it up and chased P. W. 42 up to some distance and then returned via Matia Pokhari (the village tank) to the village and proceeded immediately to the Dharmasala Police Station with a lathi (M. O. V) where he lodged information at about 3 P. M. The investigating Officer made a station diary entry (Ex. 9) and drew up formal First Information Report (Ex. 10), in a line with it. At about 5 P. M. , the Duffadar of the village produced Lakshmidhar at the Police Station along with P. W. 42. The Investigating Officer arrested both the accused and seized the bloodstained cloth of Nakafodi and the lathi held by him. The appellant had a simple lacerated injury on the left side of his forehead and a bruise on the middle of the left forearm on ulhar aspect (vide Ext. 3 the injury certificate) and P. W. 42 had a simple incised injury on his right scapular region of the back (vide Ext. 2 the injury certificate ). The Investigating Officer came to the village and seized from the house of the appellant, as pointed out by the latter, the blood-stained knife, the Farsa and a small Tangi with which he had been armed at the time of the quarrel at the door of P. W. 19. From Padan Misra's land near the dead body, he seized a lathi (M. O. IV ).