REPORTABLE

 IN THE SUPREME COURT OF  INDIA   CRIMINAL APPELLATE JURISDICTION

             CRIMINAL APPEAL NOs.6-7 OF 2003

  BATAKRUSHNA PARIDA                               Appellant

                     VERSUS

  STATE OF ORISSA                                 Respondent                                    

J U D G M E N T

DR. ARIJIT PASAYAT, J.

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

...2/-...

Crl.Appeal Nos.6-7/2003

-2-

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

...3/-...

Crl.Appeal Nos.6-7/2003

-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.  

...4/...

Crl.Appeal Nos.6-7/2003

-4-

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.

...5/-...

Crl.Appeal Nos.6-7/2003

-5-

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

...6/...

Crl.Appeal Nos.6-7/2003

-6-

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  

...7/...

Crl.Appeal Nos.6-7/2003

-7-

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

...8/-...

Crl.Appeal Nos.6-7/2003

-8-

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.

...9/-...

Crl.Appeal Nos.6-7/2003

-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.