DWARU PATRA Vs. THE STATE

JUDGEMENT

(1.) THE Appellant was convicted under Section 302, Indian Penal Code and was sentenced to R.I. for life. The charge against him is that in the early morning of 8 -9 -1965 he committed murder of one Bandana Oram. Jadu, the son of the accused Appellant Dwaru Patra, was working as Halia in the house of the deceased Bandana Oram. One of the goats of the deceased was found missing 15 days before the occurrence. On the evening of 7 -9 -1965 another goat of his was also missing. Suspecting mischief the deceased accompanied by P.W. 1 Ledw Dram, who is the Choukidar and some other persons of the village went to the house of the accused, to enquire about the missing goats. They also searched the house of the Appellant but as it was dark they could not find anything. Bandana was apparently not satisfied with the result of the search and wanted to stay in the house of the Appellant during the whole night to make a further search the next morning. Accordingly Bandana and Lada slept that night in the open weaving shed or the Appellant which is in front of his house and the other persons who had accompanied Bandana retuned to their respective houses. At about dawn the next morning the Appellant came out of the house to answer a can of nature and thereafter sat by the side of Bandana and gave blows with the blunt side of an axe on the bead of Bandana in consequence of which the latter fell down. Thereupon the Appellant is said to have given a second blow with the sharp side of the axe on the head of Bandana. Leda ran away out of fear and reported the matter to P.W. 3 and others. They came to the spot and found Bandana lying unconscious with bleeding injuries. They also found at the place the stick (M.O.I.) which is admittedly the stick taken by Bandana with him on the previous night. They also found the M.O. II. lying in the Court -yard. Information was lodged at the Thana. P.W. 6 the Sub -Inspector took up investigation and visited the spot on 9 -9 -1965. Meanwhile Bandana died at about noon of the previous day. The Sub -Inspector seized from the Court -yard the stick M.O. I the axe M.O. II and a Gupti Badi M. O. III. He seized the cloth M.O. IV which Appellant was wearing and arrested him. After arrest the Appellant produced the axe M.O. V from his bed room which was duly seized. The dead body was then sent for post mortem examination. The doctor P.W. 4 found on the person of the deceased a lacerated wound scalp deep just behind the top of the head and one incised wound 4" x 2 ¼" x 2 ¼" over the upper part of spinal column of back cutting down the muscles spinal column and spinal cord. The tissues were stained and contained blood clots. On dissection he found blood stains underneath the scalp in and around the injury No. 1. In his opinion the death was due to shock and hemorrhage, the immediate cause of the death of the deceased being injury No. 2. He opined that injury No. 1 on the head could be caused by a blow with the blunt side of the axe M.O. V and injury No. 2 by the sharp side of that axe. Being asked whether the injury No. 1 could be caused by M.O. II the doctor stated that although injury No. 1 can be caused by the blunt side of M.O. II, injury No. 2 cannot be caused by the sharp edge of M.O. II because the length of its sharp edge is much smaller than the length of the injury.

(2.) THE Appellant pleaded not guilty. In the Court of sessions be stated that on the evening of 7 -9 -1965 the deceased and Leda went to his house. The deceased bad taken M.O. III and Leda had taken the axe M.O. II. He admits that after search of the house on the evening the deceased and Leda stayed during the night in his house to keep watch. At about 2 A.M. that night he came out to answer a call of nature and while returning back to his house the deceased caught hold of his hand and threatened to assault him as he did not show where he had concealed his goat. The Appellant stated that he did not know about the missing goat and thereupon the deceased raised the Gupti badi and assaulted him. The Appellant ran inside his house and brought the table (axe) M.O. V. Then Bandana and Leda ran towards him and assaulted him whereupon he whirled the Table with a view to save his life and does not know whether it struck anybody. He admitted having produced the axe M.O. V before the Sub -Inspector on the day following the occurrence. In the Court of the committing magistrate however the Appellant had stated that he was falsely accused by the deceased as having concealed his missing goat and being afraid that the deceased and Leda would assault him, he (Appellant) killed Bandana. The statement made by the Appellant in the Court of the committing magistrate was read over to him in the Court of sessions and he was asked whether he bad anything to say about it. But the Appellant did not deny having made such a statement.

(3.) IT is the prosecution case which receives corroboration from the evidence given by the Doctor P.W. 4 that the death of the deceased was caused by two blows dealt with the axe M.O.V. M.O.V. was seized by the police on being produced by the Appellant. No doubt the Appellant takes the plea that with a view to save himself he whirled the axe M.O.V. and he does not know whether it struck anybody. But having regard to the nature and position of the injuries found on the person of the deceased it cannot for a moment be believed that the injuries could be caused as a result of whirling of the axe M.O.V. by the Appellant. That apart as already stated we are convinced having regard to the evidence and circumstances of the case that the Appellant had actually dealt the two blows with the axe M.O.V. on the deceased resulting in his death. Besides the axe M.O.V. another axe M.O. II and the Gupti Badi M.O. III were found lying very near the dead body. Both M.O. II and M.O. III are weapons of offence and the prosecution has not let in any evidence to show how these weapons happened to be at the spot. We are therefore inclined to accept the submissions made by the learned Advocate for the Appellant that the deceased and Leda had taken M.Os. II and III with them when they went to the house of the Appellant on the night preceding the occurrence and that they bad these weapons with them by the time the occurrence took place. It is therefor argued by him that the deceased and Leda must have attempted to assault the Appellant with M.O. II and III and with a view to save himself the accused must have dealt blows with M.O.V. on the deceased. A plea of right of private defence cannot be based on surmise's and speculation. There must be some evidence to establish the circumstances which necessitated the exercise of such a right. Admittedly no injury whatsoever was found on the person of the Appellant. Excepting his own statement made in the Court of sessions, there is no evidence to show that the deceased and Leda either assaulted him or even attempted to as suit him: his own statement before the Court of committing magistrate falsifies the plea now bet up by him. Hence merely because the deceased and Leda were armed with M.Os. II and III, the Appellant cannot go to the extent of killing the deceased because he apprehended that they might kill him. We are therefore satisfied that the Appellant has failed to establish that the right of private defence was available to him in this case.