DWARIKA MISRA Vs. STATE

JUDGEMENT

(1.) THE appellant has been convicted under Section 302, Penal Code and sentenced to imprisonment for life. Originally 6 accused persons stood trial under Sections 302/34 and 323/34, Penal Code, 5 of them have been acquitted.

(2.) THE prosecution case may be stated in brief. The deceased Balaram Satpathy, Dukhishyam (P.W. 8) and Ananda (P.W. 10) are the sons of Sudam Satpathy (P.W. 11). The accused are all agnates. There is no dispute that there is long standing family trouble between the Misras and the Satpathys. 19 -8 -65 was a Janmastami day. It appears that the appellant had purchased some meat from the deceased, but had not paid the price. In that fateful morning the deceased asked for the money. This led to some altercation. By then the father of the deceased was going to the temple to do Puja. The cloth of the appellant touched Sudam. This also led to some trouble. Both these matters led to a serious quarrel ultimately.

(3.) MR . Mohanty frankly stated that it was not possible for him to support the conclusion of the learned Sessions Judge that the appellant was entitled to set up the plea of right of private defence in a case where the finding is that there was a free fight between the two parties. The concession is well founded. When there is a free fight, that means, when both the parties come determined to fight without there being corresponding rights of private defence, no party is entitled to the protection of law. Each party and the members thereof are responsible for the illegal acts caused by them. There is therefore no question of any exercise of right of private defence on the finding recorded that there was a free fight which is not assailed by the learned Standing Counsel.