Trinath Behera vs State Of Odisha
2022 Latest Caselaw 2447 Ori

        IN THE HIGH COURT OF ORISSA AT CUTTACK

                        CRA No.119 of 1998

   Trinath Behera                              ....          Appellant
                                  -versus-
   State of Odisha                             ....        Respondent


   Appeared in this case:

   For Appellant              :      Mr. Biswa Ku. Mishra, Advocate

   For Respondent             :                      Mr. J. Katikia,
                                    Additional Government Advocate

    CORAM:
    THE CHIEF JUSTICE
    JUSTICE R. K. PATTANAIK


                             JUDGMENT

06.05.2022 Dr. S. Muralidhar, CJ.

1. The present appeal is directed against the judgment and order of conviction dated 2nd May, 1998 passed by the learned Additional Sessions Judge-cum-Special Judge (Vigilance), Berhampur in Sessions Case No.22 of 1998 [SC No.261 of 1997 (GDC)] arising out of G.R. Case No.75 of 1997 (corresponding to Rambha Police Station Case No.35 of 1997). By the said impugned judgment and order of conviction, the learned trial Court convicted the present Appellant for the offence punishable under Section 302 of the Indian Penal Code, 1860 (IPC) and sentenced him to imprisonment for life.

2. The case of the prosecution is that on 1st April, 1997 at around 7.30 pm, the deceased Ghanashyam Behera was sitting in his verandah in Gajapati Nagar when the accused suddenly came there and attacked him by giving him stab blows on his left chest and left belly causing bleeding injuries. The deceased became unconscious and was immediately removed to the Rambha hospital. As his condition was serious, the doctor there referred him to the MKCG Medical College and Hospital, Berhampur. While he being taken to the MKCG Medical College and Hospital, the deceased succumbed to his injuries and was brought dead to the said hospital. Thereafter a written report was lodged before the Rambha Police Station (PS), which came to be registered as Rambha P.S. Case No.35 of 1997 under Section 302 IPC. After completion of investigation, the charge-sheet was filed. The Appellant having pleaded not guilty was sent up for trial.

3. The prosecution examined as many as 14 witnesses. The defence did not examine any witness. The prosecution witnesses (PWs) 7 to 10, who were examined as eye-witnesses to the occurrence. On analyzing the evidence, the trial Court came to the conclusion that the Appellant was guilty of the offence under Section 302 IPC and sentenced him as noticed hereinbefore by the impugned judgment.

4. It must be noticed here that by an order dated 10th March 2000, the Appellant was enlarged on bail subject to the satisfaction of the trial Court.

5. Among the PWs. who were crucial to the case of the prosecution, were P.W.8 (Saibani Behera), the wife of the deceased and P.W.9 (Tarinisen Behera), eye-witnesses to the occurrence. Neither of these witnesses turned hostile.

6. P.W.8 stated that on 1st April 1997 at around 7 PM, the deceased was in the verandah of their house. She was inside the house preparing to serve meals. She heard noise in the verandah and immediately came there. By that time the accused had stabbed the deceased on his chest and belly with a knife. By then, according to P.W.8, P.W.3-B. Sanyasi Prusty (who had a shop in a portion of the house of the deceased), P.W.4 (Balaram Behera), P.W.9 (Tarinisen Behera) and P.W.10 (Kalia Behera), were present at the spot. The mother of the deceased, Dukhi Behera (P.W.7) had also reached the spot by that time. P.W.8 stated that the accused, after stabbing the deceased, ran away towards his house with his knife. P.W.8 then stated that since the blood from the wound could not be stopped, they immediately removed the deceased to the Rambha PS and from there they took him to the Rambha Hospital. The doctor there bandaged the wound and referred the deceased to the MKCG Medical College and Hospital, where the deceased was brought by an auto-rickshaw. However, on the way, he died.

7. In the cross-examination of P.W.8, she denied the suggestion that the deceased has stolen a fishing net of one Padmanava Behera in August, 1992 and that the police had recovered the said net from the house of the deceased; she also denied knowing whether the deceased had assaulted the said Padmanava Behera for lodging report against him. She denied the allegation that the deceased was a hooligan and that excise cases were pending against her and her mother-in-law or the deceased. She denied that any liquor was recovered from her house by the Excise Officers. She denied that the accused and other village committee members had restrained the deceased, P.Ws.7 and 8 from doing liquor business.

8. P.W.8 stated that she was not examined by the Investigating Officer (IO). Nevertheless, she stated that "I was asked by the Police about the incident since my husband had died and as I was crying I could not say anything to the police." She stated that the house was in Street No.1 of Gajapati Nagar in which there were only two houses, the other one is that of Arjuna Behera. She stated that the accused had his hotel in their Sahi. She specifically denied the allegation that since the accused restrained her husband from selling liquor, a false case was instituted against her. She denied that the deceased had dealt a heavy blow on the head of the accused or that the deceased was keeping a knife on his waist and that while he tried to give a second blow to the accused, the accused had in fact ran away from the place. She

specifically denied the suggestion that "my husband being in drunken state fell down and sustained injuries by the knife kept on the waist." She stated how there was an electric light in her house as well in the shop of P.W.3 and that there was also an electric light in the electric pole near the mandap.

9. Nothing emerged in the cross-examination of P.W.8 which could shake her credibility. The stabbing by the accused with the knife on the chest and belly of the deceased stands fully corroborated by the medical evidence.

10. P.W.5, Dr. Nayana Kishore Mohanty who conducted the autopsy on the dead body of the deceased and also examined the weapon of offence. In his Post-Mortem (PM) Report, he mentioned in detail the two stab injuries on the left chest and the abdomen. There was also abraded contusion on the lateral side of right elbow and two small pressure abrasions on the outer aspect of the right arm. He opined that the external injuries 1 and 2 along with the corresponding internal injuries were fatal in the ordinary course of nature and when considered holistically and individually, they could have been caused by cutting and pointed weapon. P.W.5 was categorical that the death was due to shock and haemmorage resulting from external injuries 1 and 2. He later examined the weapon of offence and confirmed that the injuries 1 and 2 could have been caused by it.

11. P.W.5 was cross-examined at some length. He was categorical that "if MO.1 is kept in perpendicular manner point its tip upwards and a man falls for two times can receive such injuries but it will be associated with other external injuries in forms of abrasions and contusions." In other words, he discounted the theory that the deceased was carrying the knife and somehow fell on the knife on his own.

12. Another crucial witness of the prosecution was P.W.9, who was not related to the deceased, but knew him. On 1st April, 1997 at around 7.30 PM, P.W.9 had gone to the grocery shop of P.W.3 and noticed the deceased sitting in the mandap adjoining the grocery shop. He clearly stated how the accused had reached the said mandap and then when he looked at the deceased, there was an altercation between them. The accused purchased some grocery articles from the shop of P.W.3 and returned to his house. The deceased also returned to his house.

13. He stated how the accused again came to the verandah of the deceased at which time the deceased came out of the house and dealt two lathi blows on the accused. Thereupon the accused drew a knife from his rear pocket and stabbed the deceased on his left chest and left belly. The deceased then gave a crying "marigali marigali". Out of fear, P.W.9 left the place.

14. P.W. 9 was cross-examined at length. He stated that the assault by the deceased to the accused and stabbing by the

accused to the deceased continued for two to three minutes. There was no hulla at the time when the deceased dealt lathi blows to the accused and the accused stabbed him. As regards the light in the area, P.W.9 stated as under:

"xxx. There is street light in our street. On the date of the occurrence there was only one street light in the middle of the street. It was a dark fortnight. It is not a fact that there is no electric light in street No.1 or in the houses situate in Street No.1. There was electric light in the hotel of the accused."

15. As regards the suggestion regarding the alternative version of the accused, P.W.9 stated as under:

"5. I cannot say if the deceased was a habitual drunkard. I cannot say if deceased Ghana in drunken state was sitting on the verandah holding a knife. It is not a fact that after being assaulted by Ghana when the accused ran away from the place the deceased chased him to assault the accused further and the deceased fell down and sustained injuries on his chest and belly by his own knife."

16. It is thus seen that both P.Ws.8 and 9 have completely discounted the alternative version put forth by the accused viz., that the deceased had attacked the accused in a drunken state on his head and then chased the accused and had got fell on a knife that he was holding.

17. The above version was put forth by the Appellant to justify the action of attacking the deceased, by projecting it as an act in self-defence. However, on carefully viewing the evidence, it can be safely said that this was a dastardly pre-planned attack by the accused on the deceased, which happened in two phases. In the

first phase, there was an altercation of words between the deceased and the accused when the accused had gone to the shop of the P.W.3 to buy groceries. After purchasing the articles, the accused returned to his house and the deceased also went inside his house. In the second phase, the accused came to the house of the deceased and there was an altercation between them. It was therefore the accused who provoked the deceased. While it is possible that the deceased attacked the accused with a wooden piece/lathi, it is clear that when the accused came back to the house of the deceased, the accused had come armed with a knife which he then took out and stabbed the deceased not just once, but twice and that too on the vital portions of the chest and the belly. This can hardly be stated to be in exercise of the right of private defence.

18. In this context, it may be noted that apart from P.W.5, the prosecution also examined Dr. Sitansu Sekhar Satpathy (P.W.6), who was the doctor at the Rambha Government Dispensary and who had examined first the deceased and found the two penetrating injuries one on the chest and one on the abdomen. P.W.6 also examined the accused and stated as under:

"2. On 2.4.97 at 1 P.M. I examined one Trinath Behera son of Jaya Behera of Gajapati Nagar, and found one laceration 3"x1/2" x skin deep on his forehead. The above injury is simple in nature and could have been caused by hard and blunt weapon. The injuries could have been caused within 24 hours. This is my report marked Ext.4 and Ext.4/1 is my signature thereon."

19. It is obvious that in the cross-examination of this witness nothing much could be elicited by the defence. As regards the injury on the accused, there was just one injury, which was a simple injury. It was a lacerated would skin deep on his forehead.

20. The plea of the Appellant that he was acting in exercise of the right of the private defence cannot be accepted at all. While the deceased may have attacked him with a lathi on the forehead, clearly the injury was a simple one and did not warrant the attack by the accused on the deceased with the knife and that too on the vital portion of the body. The Accused clearly exceeded the right of self defence even assuming for the sake of argument that it was available to him.

21. Learned counsel for the Appellant placed reliance on the decision of this Court in Jambeswar Pal v. State of Orissa, (2003) 25 OCR 672. Having carefully examined the said decision, the Court finds it turned on a completely different set of facts. In para 6 of the said judgment, the Court noticed as under:

"6. ....., we are not going to discuss the evidence on record elaborately as we are of the view that there is no doubt that the appellants were indeed involved in the incident and they themselves were the authors of the injuries sustained by the deceased and some of the eye witnesses. It is equally true that the incident occurred on the land of the appellants when the prosecution party inferred with lawful right of the appellants to pluck coconuts from their own trees. On the basis of the evidence on record, we are unable to come to any conclusion unhesitatingly that the appellants themselves were the aggressors, and the possibility that the prosecution party itself was the

aggressors cannot, be ruled out. In the context of the nature of the injuries sustained by the appellants at the hands of the prosecution party and in view of other facts of the case, we are left with not even the slightest doubt in our mind that the appellants at that time had apprehension of death or grievous hurt would be otherwise the consequences of the aggression upon them by the prosecution party."

22. Clearly, the facts of the present case are different as already noticed. While there was indeed an altercation between the accused and the deceased followed by the deceased hitting the accused on his head with a stick/lathi, it received a disproportionate reaction from the accused, who took out the knife and stabbed the deceased twice, once on the chest and the other on the abdomen. The accused went back to his house and then came back to the house of the deceased to provoke him and then attack him. Therefore, all the ingredients attracting the offence punishable under Section 302 IPC stand fulfilled in the present case. The above decision in Jambeswar Pal (supra) is therefore of no assistance to the Appellant.

23. In Rizan v. State of Chhattisgarh, (2003) 2 SCC 661, it was explained as under:

"14......It cannot be stated as a universal rule that whenever the injuries are on the body of the accused person, a presumption must necessarily be raised that the accused persons had caused injuries in exercise of the right of private defence. The defence has to further establish that the injuries so caused on the accused probabilises the version of the right of private defence. Non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance. But mere non-explanation of the

injuries by the prosecution may not affect the prosecution case in all cases. This principle applies to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit-worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. (See Lakshmi Singh v. State of Bihar, AIR (1976) SC 2263. In this case, as the Courts below found there was not even a single injury on the accused persons, while PW2 sustained a large number of injuries and was hospitalized for more than a month. A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting. Section 97 deals with the subject-matter of the right of private defence. The plea of right comprises the body or property (i) of the person exercising the right; or (ii) of any other person; and the right may be exercised in the case of any offence against the body, and in the case of offences of theft, robbery, mischief or criminal trespass, and attempts at such offences in relation to property. Section 99 lays down the limits of the right of private defence. Sections 96 and 98 give a right of private defence against certain offences and acts. The right given under Sections 96 to 98 and 100 to 106 is controlled by Section 99. To claim a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. The burden is on the accused to show he had a right of private defence which extended to causing of death. Sections 100 and 101. IPC define the limit and extent of the right of private defence."

24. Again in Arjun v. State of Maharashtra (2012) 5 SCC 530, the above principles were reiterated by the Supreme Court. It was held as under:

"24. A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find out whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting.

25. Section 97 deals with the subject-matter of right of private defence. The plea of right comprises the body or property of the person exercising the right or of any other person, and the right may be exercised in the case of any offence against the body, and in the case of offences of theft, robbery, mischief or criminal trespass, and attempts at such offences in relation to the property.

26. Section 99 lays down the limits of the right of private defence. Sections 96 and 98 give a right of private defence against certain offences and acts. The right given under Sections 96 to 98 and 100 to 106 is controlled by Section

99. To plea a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. "

25. Viewing the evidence in the light of the legal position explained above, the Court is of the view that in the present case, the plea of the Appellant that he acted in exercise of his right of private defence deserves to be rejected. The Court is also satisfied that the prosecution has been able to prove the case against the Appellant beyond all reasonable doubt. There is no infirmity in

the impugned judgment of the trial Court, which calls for interference.

26. The Appeal is accordingly dismissed.

27. The bail bond of the Appellant stands cancelled. He is directed to surrender forthwith and in any event, not later than ten days hereafter. If he fails to do so, the IIC of concerned Police Station shall take effective steps to take the Appellant into custody to serve out the remainder of the sentence.

(S. Muralidhar) Chief Justice

(R. K. Pattanaik) Judge

M. Panda