NAKULA HATI AND ANR. Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE house of the accused -Appellants and Jibardhan Sandha is adjacent to each other in village Naradugudia. The unfortunate incident took place on 11.5.1998 in the evening at about 6.30 P.M. On the said date there was heavy rain, consequently the rain water from the house of Jibardhan passed through the house of the accused persons. It is alleged that the accused persons closed the drain and stopped flow of the rain water, consequently, there was stagnation of water in front of Jibardhan's house. He raised a protest and requested the accused persons to remove the obstruction so that the water can be discharged. In course of such altercation, both the accused persons became enraged. They came to the house of Jibardhan being armed with lathis and accused Nakula assaulted Jibardhan thereby causing injury on his head. Receiving the blow, Jibardhan fell down on the ground. The other accused, Akula Hati, it is alleged, thereafter assaulted him twice on his head with a lathi. The sons of Jibardhan, P.Ws. 1 and 2 came to the spot and rescued their father. It is alleged that they were also assaulted. They filed a written report before Tarava Police Station, which was registered as P.S. Case No. 37 of 1998 for the offence under Sections 341, 323, 294, 506, 336, 427/34, IPC giving rise to G.R. Case No. 96 of 1998 of the court of learned S.D.J.M., Sonepur. In course of investigation, Jibardhan died, consequently the case was converted to one under Section 302, IPC. After completion of investigation and on observing all paraphernalia, charge -sheet was submitted and learned S.D.J.M. on being prima facie satisfied took cognizance of the offences and committed the case to the Court of Session for trial.

(2.) THE plea of the defence was of complete denial. According to them, previous enmity existed between the two families and a false case was initiated to harass the accused persons. The further plea of the defence was that Jibardhan and his sons forcibly entered into their house and damaged their house -hold articles, consequently a free fight ensued in which both the parties sustained injures. The third alternative plea was that of right of private defence to their person and property.

(3.) P .Ws. 1 and 2 the two sons of Jibardhan are not only eye witnesses but also sustained injuries during the incident. In their deposition, they have given a vivid description as to how the accused persons had assaulted them and their father. It appears from their deposition that on the date of occurrence, there was heavy rain and the rain water passing in front of their house was obstructed by both the accused persons. Such obstruction caused stagnation of water in front of their house Their father requested both the accused persons to remove the obstruction and to allow discharge of ran water. The accused persons did not remove the obstruction and when their father wanted to call the gentlemen of the village, accused Nakula all of a sudden brought a lathi and dealt a blow on his head in front of their house. Receiving the assault, he fell down. When P.Ws. 1 and 2 wanted to rescue their father, they were also assaulted by the accused persons. The evidence of P.Ws. 1 and 2 gets corroborated from the evidence of P.Ws. 3 to 5, who were also eye witnesses to the occurrence.