Banshidhar Dandapat and Another vs State of Orissa

B.K. Ray, J.—The two Appellants of whom Appellant No. 1 is the father aged about 52 years and Appellant No. 2 is the son aged about 22 years have been convicted under Sections 307/34, Indian Penal Code and sentenced to rigorous imprisonment for five years each by the learned Assistant Sessions Judge, Baripada. Besides the above sentence, Appellant No. 1 has further been sentenced to pay a fine of Rs. 200/ - for his conviction under the aforesaid sections.

The Appellants and the injured (p.w.4) belong to the same locality within the municipal area of Baripada town. There is one well accessible to the people of the locality near the premises of the Appellants. In the evening of 22-5-1971 Lalita, wife of p.w. 1, had been to the well to wash her clothes. Appellant No. 1 abused her and threw away her clothes, bucket and Iota. Lalita reported about this to p.w. 4 and p. ws. 5 and 3, brother and sisters respectively, of p.w. 4. Thereafter, p. ws. 4 and 5 went to the house of Appellant No. 1 and challenged him for his misbehave our. During the quarrel that ensued as a result of the challenge Appellant No. 1 threatened to kill p.w. 4.

On 27-5-1971 at about 8.30 p. m. p.w. 4 was loitering in the outer courtyard of his house. This Courtyard adjoins the road. Appellant No. 2 came there and challenged p.w. 4 as to why he had quarrelled with Appellant No. 1. Subsequently, a quarrel ensued between the two. In course of the quarrel Appellant No. 2 shouted saying ''father come, Shiba is now alone''. While shouting Appellant No. 2 ran towards his own house. Shortly thereafter, both the Appellants came running to the outer courtyard of p.w. 4. Appellants No. 1 was armed with a roller stick (M.O. In and Appellant No. 2 with a bamboo stick (M. Order 1). Appellant DO. 2 dealt a blow with the bamboo stick on the left side head of p.w. 4 as a result of which the latter fell down senseless with bleeding injury. Appellant No. 1 thereafter discarded the roller stick in his hand brought a piece of Mankada stone from the nearby compound wall and pressed the same on the back of p.w. 4. saying that he (Appellant No. 1) had been able to take out the bangles from the hands of p.w. 4''s wife. Thereafter, p.w. 4 was removed to the hospital by his younger brother (p.w.5). On these allegations p.w. 5 lodged an F.I.R. (Ex. 1) before the Police.

During investigation that followed Police came to the spot seized the roller stick (M.O. II) from the outer compound of p.w. 4, searched the house of the Appellants seized the bamboo stick (M.O.I.) therefrom and got p.w. 4 examined by the doctor. After close of investigation Police submitted charge-sheet against the Appellants who were tried, convicted and sentenced as stated above. Hence this appeal.

The plea of the Appellants in the Court below was as follows: At the time of the alleged occurrence Appellant No. 1 was on the roof of his house., From there he heard Appellant No. 2 shouting for help. Appellant No. 1, then came to the spot and saw marks of injury on Appellant No. 2. Appellant No. 1 then asked p.w. 4 who was there as to what was the matter. P.w. 4 questioned Appellant No. 1 as to why he (Appellant No. 1) misbehaved with his wife. P.w. 4 then assaulted the Appellants with a lathi. Appellant No. 2 snatched away the lathi from the hand of p.w. 4. P.w. 4 then went inside his house and brought an axe. By the time p.w. 4 returned with an axe Appellant No. 1 was picking up his slippers which were lying there. P.w. 4 gave an axe blow on Appellant No. 1. This resulted in inflicting an injury on Appellant No. 1''s left thigh. When p.w. 4 aimed a second blow with the axe at the Appellant No. I, Appellant No. 2 in order to save his father dealt a blow on p.w. 4 with a lathi.

Out of 14 p. ws. examined by the prosecution, p. ws. 8 to 10 are doctors, p.w. 2 is a seizure witness, p.w. 12 is a post occurrence witness and p.w. 14 is the I.O. The rest of the prosecution witnesses are witnesses to the occurrence.

Mr. B.M. Patnaik, learned Counsel for the Appellants, argues that the Court below is not justified in discarding the defence version of the occurrence. According to him, the defence case- need not be proved to the hilt as the prosecution is required to prove its case. It is sufficient, if in view of the broad probabilities, the defence version appears to be possible. In other words, if a reasonable view can be taken that the defence case is true, then the accused is entitled to the benefit of it. It is further urged that if defence version is accepted or appears to be probable, it must be held that p.w. 4 first delt blow with an axe on Appellant No. 1''s thigh causing an injury. It must further be held that thereafter when p.w. 4 raised a second axe blow at Appellant No. 1, Appellant No. 2 in order to protect his father dealt a lathi blow on p.w. 4 as a result of which he fell down and that consequently the axe blow aimed at Appellant No. 1 was avoided. Hence, it is said that Appellant No. 2 was within his right to inflict the blow on p.w. 4 and that the only intention of Appellant No. 2 was to save his father (Appellant No. 1) and not to kill p.w. 4. The further prosecution story that after p.w. 4 fell down Appellant No. 2 pressed him (p.w.4) on his back with a Mankada stone is, it is urged, a subsequent development by the prosecution with a view to rope in both the Appellants Similarly, according to Mr. Patnaik, the prosecution case that Appellant No. 2, while pressing p.w. 4 with a Mankada stone, used certain words is also a development having no truth in it. Mr. Patnaik then argues that the fact that none of the alleged prosecution witnesses to the occurrence gives an explanation to the injuries sustained by the Appellants at the time of occurrence goes to show that the eye-witnesses are not coming forward with a true picture of the occurrence and hence they cannot be relied upon when they depose about the manner in which the occurrence took place. All these contentions of Mr. Patnaik appear to be well founded. P.w. 14 says that when he went to the hospital soon after the occurrence to see p.w. 4, he (p.w.14) saw both the Appellants in the out door hospital with some injuries. So p.w. 14 sent requisitions for examination of the Appellants. P.w. 8, the doctor, who examined the Appellants in the very night of occurrence, found injuries on them as per the medical certificates (Ext. 6 and 7), As regards the injury on the leg of Appellant No. 1, p.w. 8 could not say if it was superficial. All the p. ws. on the other hand, consistently depose that there were no injuries on the Appellants and that p.w. 4 did not assault any of them. The Court below has drawn an adverse inference against the Appellants, because in spite of the injuries they did not lodge any information before the Police nor file a private complaint. In my view, the Court below is not justified in drawing an adverse inference to the Appellants like this. Immediately after the occurrence the Appellants ran to the hospital for treatment of their injuries. It was at the hospital p.w. 14 saw and got them medically examined. The Appellants, therefore, knew that the Police was in seisin of the matter, and hence they might have thought that it was not necessary again either to inform the Police independently or to lodge a private complaint. The defence case that the Appellants were injured being assaulted by p.w. 4 gains corroboration from the opinion of p.w. 8 in reply to p.w. 14''s querry (Ex. 13) as to whether the injuries on the Appellants would be possible by coming into contact with a fence. The Court below is not justified in overriding the opinion of p.w. 8 by saying that p.w. 8 has avoided to give a straight reply. A close analysis of the evidence of the prosecution witnesses also lends support to the defence version that the occurrence took place on the public road near a light post and not inside the compound of p.w. 4. The prosecution as it appears has deliberately tried to shift the place of occurrence inside the courtyard of p.w. 4 with a view to attribute the role of aggressors to the Appellants. Of the three witnesses examined for the defence all of whom belong to the same locality to which the parties belong, D. ws. 1 and 3 depose as to how the occurrence took place. Their evidence exactly tallies with the defence version. D.w.1 only says that when he came out of his house on hearing a hulla he saw both the Appellants on the public road and also saw bleeding from the leg of Appellant No. 1. On being asked by d.w.1 Appellant No. 1 said that p.w. 4 had cut his leg and assaulted his son (Appellant No. 2). Merely because this witness who is an A.S.I. of Police admits that one of the sons of Appellant No. 1 is also an A.S.I. of Police, the learned trial Judge has discarded his evidence. It may be remembered that the Police had started the case against the Appellants. So, it is very unlikely that d.w.1 would go against the police and falsely support the Appellants. A reading of the evidence of d.w.1 does not show that there is any inherent improbability in it. D.W. 3 is a college student. Admittedly, he is a front door neighbour of p.w. 4 and it is the prosecution case that the occurrence took place in front of p.w. 4''s house. D.W. 4 supports the defence version in material particulars. Nothing has been shown as to why this witness would falsely depose for the Appellants. D.w.3 has clearly said that when he came out, he saw Appellant No. 1 bending over his left leg and p.w. 4 raising an axe towards him. D.w.3 also says that Appellant No. 1 at this stage dealt a lathi blow on p.w. 4. This witness has been discarded by the Court below because he was not produced before the Police. Non-production of d.w.3 before the Police during investigation is no fault of the witness. The prosecution party is normally expected to take steps to prove its case during investigation. So, if the party knows that a particular witness will not support its case it will not produce him before the Police. For this witness cannot be blamed. Further, the Court below has not accepted the defence case because injury No. 2 on Appellant No. 1 is an abrasion and so, cannot be caused by an axe blow. This observation of the Court below is contrary to the medical evidence. In this connection, the evidence of p.w. 8 may be seen. P.w. 8 has clearly said that injury No. 2 on Appellant No. 1 can be caused by an axe. The Court below for no reason has said that p.w. 8 is partial to the Appellants. Nothing has been shown as to why p.w. 8 will have a soft corner for the Appellants. In the absence of anything to show p.w. 8''s interestedness in the defence it is not proper to discard his testimony in the manner it has been done by the Court below. Another reason why the defence case has been disbelieved is that at some earlier stage the Appellants had taken a stand that p.w. 4 had inflicted a cut injure on leg of Appellant No. 1. whereas, subsequently in course of trial in the Court below the Appellants took a stand that the injury that was inflicted by means of an axe by p.w. 4, was not a cut injury but an abrasion. I do not think that this discrepancy in the stand taken by the Appellants as pointed out above is very material. The consistent stand taken by the Appellants is that p.w. 4 dealt a blow with an axe on Appellant No. 1 and thereafter aimed another blow. This case finds support not only from the evidence of defence witnesses, but also from the medical evidence discussed earlier. That apart, the silence on the part of the alleged prosecution eye-witnesses about the injuries on the Appellants is very significant. This silence leads to the conclusion that they are not coming forward with a true story. Further, the story that Appellant No. 2 pressed a Mankada stone on p.w. 4 is not supported by medical evidence. On the basis of the above discussions of the evidence led by the parties and the attending circumstances referred to above, in disagreement with the Court below I am inclined to hold that the defence version of the case is reasonably true. The necessary conclusion that follows therefore is that the Appellants in exercise of their right of private defence dealt a lathi blow on p.w. 4 and that they had absolutely no intention to murder p.w. 4. Hence they cannot be held guilty under Sections 307/34, Indian Penal Code.

In the result, the appeal is allowed, the order of conviction and sentence passed against the Appellant is set aside and the Appellants are set at liberty forthwith. The bail bonds furnished by the Appellants are hereby discharged: