STATE OF ASSAM Vs. UPENDRA DAS

JUDGEMENT

(1.) The Hon'ble Judges of the Division Bench being divided in opinion vide their judgment dated 10-7-1988, the case has been placed before this court under the order dated 14-7-1987 of the Hon'ble Chief Justice for delivering its opinion for disposal of the appeal in accordance with the provision of S. 392 of the Code of Criminal Procedure following the opinion of this court.

(2.) Eight (8) accused-respondents had been acquitted vide judgment dated 28/04/1981 passed by the Sessions Judge, Nagaon in Sessions Case No. 31(N)/1978. The acquittal was on the ground that the acts done by the accused were in exercise of their right of private defence. Three (3) persons, namely Sudhir, Mansur and Gurucharan died in the occurrence. The Division Bench in agreement held that the accused persons had right of private defence of property and person, but Hon'ble Hansaria. J. was of the view that accused Upendra and Gopendra were responsible for killing three persons and thereby had exceeded the right and held them guilty u/S. 304 Part I of the IPC. But Hon'ble Srivastava, J " differed with that view.

(3.) Hon'ble Hansaria (J) held that initially accused Upendra and Gopendra armed with spear chased Sudhir and hurled spear on his back causing death and then caused fatal blows on Mansur and Gurucharan resulting death. Rescrutiny of the evidence of the eye-witnesses P.Ws. 4, 5, 6, 7 and 8 on those facts would he necessary.