Gola Bag vs State of Orissa

J.K. Mohanty, J.—Appellant Gala Bag has appealed against his conviction u/s 304 Part II I.P.C. and sentence of two years'' R.I. passed by the Sessions Judge, Sambalpur.

Deceased Nitya Bhoi had a daughter through his first wife whom he had given in marriage to accused-Appellant Gala Bag. Both the accused and his wife were looking after the land of Nitya Bhoi who had executed a deed of settlement in their favour. Subsequently Nitya Bhoi brought another lady namely Rukuni (P.W. 7) as his wife and she became pregnant. So quarrel arose between Nitya Bhoi and his daughter Radhika and accused Gala Bag over the property as Nitya revoked the deed of settlement executed by him. In the night preceding the date of occurrence i.e. 16-2-1978 the accused along with his wife Radhika and a pair of bullocks came to the house of Nitya Bhoi and stayed there for the night. On the following morning the accused along with his wife went to the field called Dungricap Padelcan situated in the village Negi Tikra. While accused Gola Bag was ploughing the field and his wife was sitting on the ridge with a baby on her lap, deceased Nitya Bhoi reached, there with a Tangia and killed his daughter Raahika. It is alleged, after killing her daughter while he was fleeing away accused Gola Bag chased him and assaulted him by means of the stick held by him for driving the bullocks. When the deceased fell down the accused snatched away the Tangia from him and gave him several blows as a result of which the deceased died at the spot. Thereafter the accused came to the village, and disclosed the fact to the relations of the deceased, namely, P.Ws. 11 and 13. P.W. 11 informed the Ward Member (P.W. 12) who came and enquired from the accused about the incident. Thereafter the Gram Rakhi (P.W. 9), who was called by the Ward Member, was informed, about the incident. All of them (P.Ws. 9, 11 & 12) went to the spot and sent the accused to the police station and reported the matter before the I.O. (P.W. 14). P.W. 14 investigated into the case and after completion of investigation submitted charge-sheet u/s 302, I.P.C. The plea of the accused is one of right of private defence of his body. Prosecution examined 14 witnesses to prove the case. There is no eye witness to the occurrence and the entire prosecution story regarding the actual occurrence is based on the alleged extra-judicial confession made by the accused before P.Ws. 9, 11, 12 and 13. The learned Judge considering the evidence of P.Ws. 9, 11, 12 and 13 did not place reliance on the extra-judicial confession made by the accused. However, he relied on certain admissions of the accused made in his statement u/s 313, Code or Criminal Procedure which according to the learned Judge found corroboration from the facts and circumstances of the case. The accused in his statement u/s 313, Code or Criminal Procedure has stated:

On the occurrence day while I was ploughing the field and my wife Radhika was sitting on the ridge of that field with the breast feeding bady on her lap. Nitya came from somewhere and killed my wife. My attention was drawn when the baby cried. When I ran towards that spot, Nitya proceeded towards me by raising his tangia to kill me. When I caught hold of that tangia the stick for driving the buffalows which I carried fell down from my hands. Nitya picked up the same and assaulted me. I brandished the tangia to save my life and in the process Nitya was killed by the tangia brandished by me. I do not recollect what happened immediately thereafter as I lost my balance of mind.

As already mentioned there is no eye-witness to the occurrence and the learned trial Judge has also disbelieved the extrajudicial confession made by the accused before P.Ws. 9, 11, 12 and 13. There is no evidence in this case on behalf of the prosecution to prove the guilt of the accused. So it is perfectly obvious that after rejecting the prosecution version as highly improbable and virtually discarding the same, the learned Judge could easily come to the conclusion that the charge was not brought home to the Appellant and this would have resulted in the acquittal of the Appellant but inasmuch as Appellant Gola Bag made a statement to the effect that he brandished the Tangia to save his life and in the process Nitya Bhoi was killed with the tangia in the exercise of the right of his private defence, the learned Judge felt that he should consider the plea set up by the Appellant before arriving at a final conclusion with regard to the chargee levelled against the Appellant. In considering this part of the case, however, the learned Judge seems to have lost sight of the fact that after rejecting the prosecution version as well as the prosecution evidence in support of that version, there were no materials on the record which would have justified the conviction of the Appellant except what is afforded by the statement of the accused-Appellant. As it appears in this case the learned Judge has accepted a part of the statement of the Appellant, namely, that he inflicted the injuries on the deceased hut he has declined to place reliance on that part of the statement of the Appellant which explains the circumstances in this case exculpatory in which those blows came to be inflicted by the Appellant upon deceased Nitya Bhoi. While doing so the learned Judge has lost sight of the principle that when the Court acts upon the statement of an accused alone and there is no other evidence available which disproves any portion of that statement of the accused, the whole of that statement, and not only a part of it which may go against the accused, should be taken into consideration. This principle also finds support from the decisions reported in Dadarao Vs. The State of Maharashtra, and State Vs. Dwari Behera and Others, . In this case the accused has clearly stated that when his wife was killed his attention was drawn as the baby cried and when he ran to the spot deceased Nitya Bhoi proceeded towards him to kill him. He caught hold of the Tangia, but the stick which he was holding for driving the buffaloes fell down and deceased Nitya Bhoi picked up that stick and assaulted him. So he brandished the Tangia in order to save his life and in the process Nitya Bhoi was killed. P.W. 12 has stated that the lathi (M.O. IV) by which the deceased wanted to assault the Appellant is a solid lathi sufficient to cause fatal injury. So even taking this statement of the accused as a whole and the circumstances in which the deceased was going to assault the accused into consideration, it will be clear that such an assault would have reasonably caused the apprehension that death or grievous hurt, would otherwise be the consequence of such assault. Taking into consideration the accused statement as a whole, there is no other alternative than to hold that the accused is entitled to the light of private defence.

In the result, therefore, the appeal is allowed and the conviction and sentence are set aside. The Appellant be released from his bail bond.