Batakrushna Parida vs State Of Orissa

Challenge in these appeals is to the Judgment of a Division Bench of the

Orissa High Court allowing the appeals filed by the State. Two appeals were

filed against the common order/Judgment of Learned Sessions Judge, Dhenkanal

in Sessions Trial No.25 D of 1983. The Trial Court directed acquittal of all the

accused persons who were charged for commission of offences punishable under

Sections 302, 307, 148, 302/149 of the Indian Penal Code, 1860 (in short the IPC).

However the present appellant was convicted in terms of Section 304 Part II IPC

and was sentenced to undergo rigorous imprisonment for three years. The State

questioned the acquittal of

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the respondents as well as the conviction of the present appellant in terms of

Section 304 Part II, IPC in place of the Section 302 IPC. The present appellant

filed an appeal questioning the order of conviction. Both the appeals were placed

together and disposed of by the common judgment.

The skeletal picture of the prosecution case as unravelled during trial is

as follows :

Village Saruali is consisted of three hamlets, namely, Gopal Sahi,

Dehury Sahi, and Parida Sahi. There was no love-lost between the villagers of

Gopal Sahi and Dehury Sahi on one hand and Praida Sahi on the other. The long

standing enmity existed on account of a dispute over some forest land as such

land was allegedly under the possession of the people of Dehury Sahi. Owing to

such animosity the people of Dehury Sahi stopped rendering service to the people

of Parida Sahi for the last 6 to 7 years preceding the occurrence. Since there was

serious law and order problem, therefore there was a proceeding under Section

107, Cr.P.C. and several suits

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-3- were pending between the people of Dehury Sahi and Parida Sahi. The

respondents in Government Appeal belong to Parida Sahi whereas the victim as

well as the prosecution witnesses belong to Dehury Sahi and Gopal Sahi. It was

alleged that in the night of Kumar Purnima falling on 1.11.1982 the Dehury Sahi

people had carried the image of Goddess Laxmi to the house of Bali Parida of

Parida Sahi with whom Dehury Sahi people had developed some friendship.

Therefore, the appellant-respondents who belong to Parida Sahi raided the house

of Bali Parida.

On the following day i.e.on 2.11.1982 between 9.00 and 9.30 A.M. the

respondents belonging to Parida Sahi being armed with lathis and four muzzle

loading guns proceeded to Dehury sahi and on their arrival near the house of

Banka Dehury the appellant - respondent no.1 Batakrushna Parida fired a gun

shot at Sahadev Dehury who was then engaged in washing his face in the

backyard of Banka Dehury. After receiving such gun shot Sahadev fell down

with bleeding injury and instantaneously died.

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Respondent Dibakar Parida fired another shot from his gun towards Chhota

Dehury as a result of which the latter received injury in his knees. Respondent

Sankar Parida fired a shot from his gun towards Gopal Sahi and the pellet from his gun, of course, hit on the forehead of Athani Das as a result of which Athani

Das fell down under a Mahua tree. After the respondents fired three successive

shots from their guns the villagers of Dehury Sahi chased them as a reason

whereof the respondents ran hither and thither towards their hamlet 'Parida

Sahi'. While they were running, on being chased by the prosecution witnesses,

appellant Batakrushna Parida received a lathi blow by one Sikar Dehury

(P.W.11) as a result of which the gun held by him fell down from his hand and

Braja Dehuiry (P.W.9) picked up the said gun. Respondent Sankar Parida

chased Sikar Dehury (P.W.11) to give him a push with the gun, but he managed

to snatch away the gun from the hand of respondent Sankar Parida.

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Kusana Dehury (P.W.7) and one Kashi Behera chased respondent Lambodar

Parida, but respondent Lambodar Parida fired a shot at them as a result which

Kusana Dehury (P.W.7) sustained bleeding injury near his neck.

Deceased Dambaru Behera chased Ganga Parida (since dead), but the

latter over-powered Dambaru and flung him on the ground. Thereafter

Sidheswar (since dead) threw a big stone on the lower part of his abdomen as a

result of which he sustained severe injury on his abdomen. He was taken to

Kamakhyanagar hospital and immediately shifted therefrom to Dhenkanal

Hospital where he breathed his last during treatment. There was exchange of

pelting of stones form both sides throughout the occurrence.

On receiving information the O.I.C. of Kamakhyanagar police station

reached the spot at about 10.30 A.M. and after receiving information from

P.W.1 which he treated as F.I.R., (Ext.1) immediately swung into action. He

examined the informant and noticed

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the dead body of Sahadev Dehury lying in the bari of Bank Dehury where he held

inquest over the deadbody in presence of the witnesses and prepared the inquest

report. He despatched the deadbody of deceased Sahadev Dehury to

Kamakhyanagar Hospital for post-mortem examination and other injured

persons, namely, Chhota Dehury (P.W.6), Kusana Dehury (P.W.7), Hanua

Dehury (P.W.12), Athani Das (P.W.5) and Dambaru Behera for treatment. He

immediately recorded the statements of some witnesses of village Saruali. He

also seized the blood stained earth and sample earth from the spot where the

deadbody of Sahadev Dehury was lying vide Ext.10.

On receiving the information, investigation was undertaken and

common charge-sheet was filed. All the accused persons pleaded innocence and

false implication.

In order to establish the accusations, 21 witnesses were examined in the

Trial Court. Similarly 12 witnesses were examined by the accused

persons. On

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consideration of the evidence on record, the Trial Court held that except the

present appellant the others were not liable to be convicted. It was essentially

held that Section 149 IPC has no application to the facts of the present case.

However the accused-appellant Batakrushna Parida was held to be

guilty in terms of Section 304 Part II IPC as he fired from his gun to scare away

the prosecution witnesses and in that process a pellet caused a gun shot wound to

the deceased which proved fatal. Three years rigorous imprisonment was

imposed as noted above. Two appeals were filed. Vide the impugned judgment,

the High Court dismissed the appeal so far as the co-accused persons were

concerned holding that apart from Batakrushna Parida, others had no common

object of killing the deceased. It was noted that the fact situation made the

position clear that Batakrushna Parida on the spur of the moment had fired a

shot from his gun as a result of which Sahadev Dehury died immediately. At

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this juncture, the High Court held that the Trial Court rightly observed that

Section 149 had no application but it further held that the offence committed by

the present appellant was relatable to Section 302 IPC and not 304 Part II

IPC. Accordingly the State's appeals were allowed so far as the present

appellant is concerned and he was convicted in terms of Section 302 IPC and

sentenced to undergo rigorous imprisonment for life.

In support of the appeal, learned Counsel for the appellant submitted

that having found that the appellant fired a shot from his gun on the spur of the

moment, there was no scope for accepting the State's appeals to hold the

appellant guilty of offence punishable under Section 302 IPC. The Trial Court

noticed that there was a free fight and a right to private defence was

purportedly being exercised by the accused but the same was exceeded.

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-9- The Trial Court referred to the factual situation and observed that

there was a free fight. The accused persons purportedly claimed exercise of the

right of private defence but there was no reason for the accused appellant to fire

and kill the deceased. The High Court came to an abrupt conclusion (that it is

only conclusion for making the conviction under Section 302 IPC) as follows:-

"It is difficult to prove the intention of Batakrushna Parida. It has to be gathered from the surrounding circumstances. We are at loss to understand as to why he shot at Sahadev Dehury without any provocation. Accordingly, we hold Batakrushna Parida responsible for causing the death of Sahadev Dehury punishable under Section 302, IPC."

It is to be noted that the High Court itself confirming the view of the

Trial Court, observed that the firing was done on the spur of the moment and

there was a free fight among the other villagers. The High Court ought not to

have held that the offence committed by the Crl.Appeal Nos.6-7/2003

-10- accused was relatable to Section 302 IPC. In the circumstances, we set aside the

the impugned judgment of the High Court and restore the order of the Trial

Court. The accused is directed to surrender to custody forthwith to serve out the

remainder of sentence, if any. The appeals are dismissed accordingly.

...................J. (Dr. ARIJIT PASAYAT)

.....................J. (ASOK KUMAR GANGULY) New Delhi;

April 28, 2009.