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Gopinath Das Vs. Alekh Sahu and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Revn. No. 171 of 1967
Judge
Reported inAIR1970Ori50; 1970CriLJ478
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 439; Indian Penal Code (IPC), 1860 - Sections 102
AppellantGopinath Das
RespondentAlekh Sahu and ors.
Appellant AdvocateKanungo and ;R.N. Mohanty, Advs.
Respondent AdvocateR.K. Kar and ;R. Mohanty, Advs.
Cases ReferredK. Chinnaswamy Reddy v. State of Andhra Pradesh
Excerpt:
.....and when he did not say that at that moment there was any attempt on the part of linga-raj either to snatch back the tangia from him or to secure any weapon from elsewhere, it is manifest that mahajan has failed to establish that the right of private defence was available to him......in revision is directed against an order of the magistrate, first class, daspalla acquitting the opposite parties, thirteen in number, who were prosecuted on charges under section 148/426 i. p. c. and five of whom, namely, denei sahu, mahajan naik, kirtan padhan, mohan naik and udaya-sahu also under sections 326/324/323, i. p. c. the case against them is that at about 6 a. m. on 28-3-1965 they formed themselves into an unlawful assembly and being armed with katis, tangias, farsa and lathis restrained lingaraj das while he was proceeding on a cycle and dealt blows on him thereby causing simple and grievous hurt on his person. the opposite parties pleaded not guilty. their case is that there are two factions in the village for the last about 12 years, lingaraj das (injured) and arakhit.....
Judgment:
ORDER

B.K. Patra, J.

1. This application in revision is directed against an order of the Magistrate, First Class, Daspalla acquitting the opposite parties, thirteen in number, who were prosecuted on charges under Section 148/426 I. P. C. and five of whom, namely, Denei Sahu, Mahajan Naik, Kirtan Padhan, Mohan Naik and Udaya-Sahu also under Sections 326/324/323, I. P. C. The case against them is that at about 6 A. M. on 28-3-1965 they formed themselves into an unlawful assembly and being armed with Katis, Tangias, Farsa and Lathis restrained Lingaraj Das while he was proceeding on a cycle and dealt blows on him thereby causing simple and grievous hurt on his person. The opposite parties pleaded not guilty. Their case is that there are two factions in the village for the last about 12 years, Lingaraj Das (injured) and Arakhit Barik are leaders of one faction while petitioners Alekh Sahu and Danei Sahu are leaders of the other faction, and there was a number of cases between them. Sometime previous to the occurrence, Lingaraj Das was convicted under Section 307 I. P. C. for attempting to commit the murder of one Lokanath Misra and in that case some of the members of the opposite party were witnesses for the prosecution. Since then, Lingaraj Das used to move on cycle with a Farea for his personal safety. In mouza Kurum Bankatara where the occurrence took place and to which place all the parties belong, Dutikeshwar Mahadeb of which one Lokanath Misra was the Managing trustee owns some lands and opposite party No. 2 Mahajan Naik was cultivating some of the lands of the deity as a bhag tenant. After Lokanath Misra, Durga Madhab Deo became the trustee of the temple and Lingaraj Das as an agent of Durga Madhab Deo was looking after the affairs of the deity. On the date preceding the occurrence, Lingaraj Das wanted to dislodge Mahajan Naik from the land which he was cultivating. On the date of occurrence when Lingara.i Das was passing by the side of Mahajan's house on a cycle, the latter questioned his as to why he was attempting to dispossess him from the land. Lingaraj got down from his cycle and taking up the Tangia which he was holding wanted to assault Mahajan with it, Mahajan thereupon snatched away the Tangia from Lingaraj and assaulted him with it till Lingaraj fell down on the ground. None of the other members of the opposite party was present by the time of the said occurrence. The essence of the defence therefore, is that while Mahajan admitted having caused some injuries on Lmgaraj but pleaded that he did so in exercise of his right of private defence, the other members of the opposite party denied having taken part in the occurrence.

2. Lingaraj Das examined as P. W. 1 stated that on the date of occurrence when he was coming down from Kabelpur bridge on a cycle, opposite party Alekh Sahu suddenly came from the house of Mahajan and stood in front of his cycle and catching hold of the handle of his cycle asked him as to why he was creating trouble in the village. He therefore got down from the cycle. Immediately thereafter the other members of the opposite party who were variously armed with Katis and lathis gathered at the spot. Danei Sahu attempted to give a blow on his neck with a Kati. He tried to ward off the blow by his left hand and the Kati blow fell on his wrist. He then fell down. Then Mahajan Naik attempted to give a blow with his. Kati on his neck and he again warded it off with his left hand and received an injury on the left upper arm. He then became unconscious and did not know who caused the several injuries on his person. The doctor examined as P. W. 2 who had examined Lingaraj Das found as many as eleven injuries on the person of Lingaraj. These consisted of bleeding incised injuries on the left wrist, left humerus and the left rib; lacerated injuries on the left elbow, left humerus, left tibia; and compound fractures of the left ulna, left tibia; and abrasions on the fore-head and right arm. Some of the injuries were grievous in nature while the rest were simple. Five ether witnesses were examined on the prosecution side to prove the occurrence besides the investigating officer. The defence examined one witness to support the stand taken by Mahajan Naik and he stated inter alia that excepting Mahajan Naik, the other members of the opposite party were not present at the occurrence.

3. The learned Magistrate considered the evidence on record, disbelieved the prosecution case regarding participation of the members of the opposite party excepting Mahajan Naik in the occurrence and acquitted them. He accepted the plea of Mahajan that he caused injuries on Lingaraj Das in exercise of his right of private defence and also ordered his acquittal,

4. Two contentions were advanced by Mr. Kanungp appearing for the petitioner the first being that the prosecution case disclosed the commission of an offence under Section 307, I. P. C. and that as such the Magistrate had no jurisdiction to decide the case finally but that he should have committed the opposite parties to the Court of Session and secondly that on the evidence placed before the Court, the acquittal of the opposite parties and at any rate that of Mahajan is unjustified and perverse. In the charge sheet that wag laid by the Police before the Magistrate no mention was made that an offence under Section 307 I. P. C. had been committed. No exception was taken from any quarter when after perusing the papers placed before the Court under Section 173 Cr. P. C., the learned Magistrate framed the charges which did not include one under Section 307, I. P. C. In order No. 23 dated 17-8-1966, the Magistrate recorded that he had been approached by the prosecution side. He therefore submitted the records before the S. D. M., Nayagarh stating that in the circumstances he did not like to try the case. The S. D. M. sent back the records to him stating that he did not see any reason why the learned Magistrate should not proceed with the trial of the case and that if he felt that his judicial functions were in any way interfered with he could draw up appropriate proceedings against the persons concerned. It is thereafter that the Court Sub Inspector filed an application before the Magistrate for framing an additional charge under Section 307 I. P. C. which after due consideration was rejected by the learned Magistrate on the ground that the case diary did not disclose any materials to warrant framing of such a charge. The contention of Mr. Kanungo is that two blows with the Kati were aimed at the neck of Lingaraj Das which fortunately he warded off and that this shows that the intention of opposite parties was to kill him. But the further case of the prosecution is that after these two blows were given to Lingaraj he became unconscious and that thereafter the opposite party members dealt several other blows on the person of Lingaraj. If the intention of opposite parties was to kill him they could have easily done so after Lingaraj fell down unconscious. The fact that they did not do so shows that the intention of the assailant or assailants was not to cause his death. In the circumstances, the charges framed by the learned Magistrate were correct and he had jurisdiction to proceed with the case.

5. So far as his second contention is concerned, it is true that it is open to the High Court in revision to set aside an order of acquittal even at the instance of private parties although the State might not have thought fit to appeal, but it is now well settled that this jurisdiction should be exercised by the High Court only in exceptional cases when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. No criteria has been laid down for determining such exceptional cases which would cover all contingencies. But some cases of this kind which would justify the High Court in interfering with the finding of acquittal in revision have been indicated by their Lordships of the Supreme Court in K. Chinnaswamy Reddy v. State of Andhra Pradesh, AIR 1962 SC 1788. The cases enumerated are (1) where the trial Court has no jurisdiction to try the cases but has still acquitted the accused, (2) where the trial court has wrongly shut out evidence which the prosecution wished to produce, (3) where the court of appeal has wrongly held evidence which was admitted by the trial court to be inadmissible, (4) where material evidence has been overlooked either by the trial Court or by the appeal court and (5) where the acquittal is based on a compounding of the offence which is invalid under the law. Here, the learned Magistrate has duly considered the evidence let in on the prosecution side regarding the participation of the opposite parties in the occurrence and has given certain reasons in support of his finding that excepting opposite party Mahajan Naik, the others did not take any part in the occurrence. It may be possible for another Court to arrive at a contrary conclusion on the basis of evidence on record but this by itself cannot be a reason to set aside the order of acquittal. Every aspect o the prosecution case has been considered by the learned Magistrate and he has given reasons in support of his finding. The order of acquittal of the opposite parties except Mahajan cannot be interfered with.

6. The case of Mahajan Naik however stands on a different footing. Mahajan has admitted having caused certain injuries with his Kati on Lingaraj Das. But he pleaded that he did so in exercise of his right of private defence. If the establishment of this plea involves the appreciation of evidence and circumstances and the learned Magistrate has appreciated them in a particular manner, the High Court in revision would not substitute its own appraisement of the situation and set aside the order of acquittal. But in this case I find that even if all that Mahajan has said in support of his defence is accepted in toto, his plea is not established. He stated that Lingaraj Das attempted to kill him with his Tangia and therefore he (Mahajan) snatched the Tangia from Lingaraj and then inflicted the injuries on the latter with the sharp edge of the Tangia and also with its handle. The right of private defence commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence although the offence might not have been committed, and it continues as long as such apprehension of danger to the body continues. So long as the Tangia was in the hands of Lingaraj and the latter attempted to kill him, Mahajan had every justification to apprehend danger to his body and consequently he would have been justified to inflict such injury on Lingaraj as he would have considered necessary to save himself. But once the Tangia was snatched away by Mahajan from Lingaraj, there could not have been any further apprehension in the mind of Mahajan. In fact, Mahajan had not stated what further injury he apprehended from Lingaraj. If there was evidence to show that after the Tangia was seized from Lingaraj the latter was attempting to catch hold of some other weapon, that could have been a sufficient justification for Mahajan to exercise his right of private defence. But that is not the case here. Whether a person claiming to exercise right of private defence had any reasonable apprehension of danger or not depends on the state of his mind at that time and it is for him to say what danger he apprehended. Outsiders cannot divine what was passing in his mind. When Mahajan himself had not chosen to speak out what danger he had at that moment expected from Lingaraj who was completely disarmed by him, and when he did not say that at that moment there was any attempt on the part of Linga-raj either to snatch back the Tangia from him or to secure any weapon from elsewhere, it is manifest that Mahajan has failed to establish that the right of private defence was available to him. The learned Magistrate has taken a wrong view of law while considering this aspect of the defence case.

7. In the result, I would allow this application so far as it relates to opposite party No. 2 Mahajan Naik, set aside the order of acquittal passed against him and direct that the case be sent back to the learned Magistrate for disposal according to law. The order of acquittal in respect of the other opposite parties is maintained.


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