STATE OF ORISSA Vs. GHENU HARIJAN

JUDGEMENT

(1.) THIS appeal is directed against acquittal of the respondent who was charged under Section 302, I.P.C. for committing murder of his brother Ghudka Harijan of village Niohemaska on 19.1.1973 under Thumul -Rampur P.S. in Kalahandi District.

(2.) PROSECUTION case is that the deceased and the accused were brothers and they had some difference about shares in the landed property. In the evening of the date of occurrence, there was some altercation between them and In course of the quarrel, the respondent challenged the deceased for a trial of strength. When the deceased proceeded to the house of the respondent with a lathi (M.O.I.) to meet the challenge, the respondent dealt a tangi blow on the head of the deceased, in consequence of which the deceased sustained a bleeding injury on his head and was carried to a primary health centre, but he expired on the way while he was being carried to Bhawanipatna Hospital for treatment. P.W.1, son of the deceased, lodged F.I.R. (Ext.1). P.W.9, the Officer -in -Charge, registered the case under Section 307, I.P.C, and after investigation charge -sheet was submitted. The plea of the respondent is not guilty of the charge.

(3.) FROM the aforesaid testimony of the witnesses who consist of the family members of the deceased as well as the independent witnesses, it transpires that both the deceased and the respondent were heavily drunk. There was a quarrel between them. In course of that quarrel, the deceased rushed towards the respondent with a lathi in order to assault him and at that time apprehending danger to his life, the respondent assaulted the deceased. Admittedly, the parties are Adivasis and they are volatile in nature. Their temper and sentiment cannot be judged on the same lines as other persons. When there is apprehension of danger to the life of a person, or there is apprehension of any grievous hurt, one can exercise right of private defence. It has been held by the Supreme Court in George Dominic Varkey v. State of Kerala, AIR 1971 SC 1208 (at pp. 1209, 1210) : (1971 Cri LJ 1057) :