Back
HIGH COURT OF ORISSA
Ray, C. J. , Das And Panigrahi, JJ.
KHETRI BEWA - Appellant
Versus
STATE - Respondent
Criminal Appeal 39 Of 1950
Decided On : MARCH 08, 1951
RIGHT OF PRIVATE DEFENCE - SECTION 97, 99, 100, 101, IPC - INTERPRETATION - APPLICATION - FACTUAL SCENARIO - ACCUSED'S RIGHT TO PRIVATE DEFENCE OF BODY - EXTENT OF RIGHT - REASONABLE APPREHENSION OF GRIEVOUS HURT - USE OF SHARP-EDGED WEAPON - EXCEEDING RIGHT OF DEFENCE - PROSECUTION'S SUPPRESSION OF EVIDENCE - BENEFIT OF REASONABLE DOUBT.
Fact of the Case:
The accused, a 30-year-old widow, was charged with murder under Section 302 of the Penal Code for causing the death of the deceased, Gedi Gir. The prosecution alleged that the accused had intentionally killed the deceased with an axe in the course of an altercation. The accused pleaded self-defense, claiming that she had acted in the exercise of her right of private defense of body under Sections 97, 99, 100, and 101 of the Penal Code.
Finding of the Court:
The court found that the accused had acted in the exercise of her right of private defense of body and was not guilty of murder. The court held that the accused had a reasonable apprehension of grievous hurt from the deceased, who had trespassed into her compound and assaulted her with a bamboo stick. The court further held that the accused had not exceeded the extent of her right of private defense, as she had used an axe to inflict a single fatal injury on the deceased's head in order to prevent further assault.
Issues: 1. Whether the accused had a right of private defense of body against the deceased. 2. Whether the accused exceeded the extent of her right of private defense. 3. Whether the prosecution had suppressed evidence in the case.
Ratio Decidendi: 1. The court held that the accused had a right of private defense of body against the deceased, as he had trespassed into her compound and assaulted her with a bamboo stick. The court relied on Sections 97, 99, 100, and 101 of the Penal Code, which provide for the right of private defense of body and the extent of that right. 2. The court held that the accused had not exceeded the extent of her right of private defense, as she had used an axe to inflict a single fatal injury on the deceased's head in order to prevent further assault. The court noted that the accused was a young woman who was alone in her house at the time of the assault, and that she had a reasonable apprehension of grievous hurt from the deceased. 3. The court found that the prosecution had suppressed evidence in the case, including the fact that a second stick had been introduced into the evidence during the investigation. The court held that this suppression of evidence entitled the accused to the benefit of reasonable doubt.
Final Decision: The court acquitted the accused of the charge of murder.
( 1 ) THIS appeal was heard by my learned brothers Das and Panigrahi JJ. They differed in their opinions. Hence it was placed before me for placing it before a third Judge under the provisions of Section 429, Cr. P. C. This case has been proceeding since August, 1949 and all the while the accused has been in prison as she was charged under Section 302 and certain other sections of the Penal Code and convicted under Section 804,. P. C. and sentenced to 4 years R.. by Mr. D. N. Das, Ses J. , Mayurbhanj Balasore and has never before been enlarged on bail. Notwithstanding that one of the learned Judges of this Court in a well reasoned judgment has adjudged her innocent of the offence, she has not yet been taken out on bail, probably there being none to look after her in this world. Under the circumstances, I felt the necessity of taking up the case, the only other Judge available and the third Judge being absent from the station on duty. Besides, I consider it fair to the learned Judges who heard this case that this third Judge should be one senior to any one of them. The diversity of opinion of the two judges of the Court is strange. They have seen the things as at poles as under. Hence I have taken great care to scrutiniae things before accepting or rejecting any one of the two opinions.
( 2 ) I had first of all to ascertain what was the scope of this reference. According to Section 429 I have to give my opinion about the guilt of the accused and the judgment or order should follow such opinion. The section reads:
"when the Judges composing the Court of Appeal are equally divided in opinion, the case, with their opinion thereon, shall be laid before another Judge of the same Court, and such Judge after such hearing (if any) as he thinks fit, shall driver his opinion and the judgment or order shall follow such opinion,"
There is a great significance in the words ''if any" occurring after "such hearing. " The question whether the hearing should only consist of judging the respective merits of the two conflicting opinions of the two learned Judges of this Court for the purpose of deciding whether to agree or disagree with any one of them arose (or consideration. After perusing the conflicting opinions placed before me it struck me, if, considering that sharp differences as to the truth of the prosecution version of the occurrence in material particular between the two Judges of this Court, the accused would not be forthwith entitled to benefit of reasonable doubt I could give preference to the opinion in favour of acquittal and pronounce judgment accordingly.
( 3 ) THE learned Govt. Advocate however, submitted that I was to form an independent opinion after a hearing, though not without taking into due consideration the two diverse opinions pronounced by the other Judges and to deliver the same on which to pass the judgment or order, as the case may be. In support of this contention, he cited an authority of a decision of the Calcutta high Court in the case of Md. Illias Mistri v. The King,. L R. (1949) 1 Cat. 43. I have, both in latter and spirit, followed this decision but I record my doubts as to the correctness of the dictum. In my opinion what struck me at the beginning waa correct, namely, that I could, unless on scrutinising the materials on record the judgment of the Judge pronouncing in favour of innocence of the accused was considered far from fairly reasonable, or, to be more accurate, not (sic) perverse, give the benefit of reasonable doubt to the accused and acquit her. If the third Judge is bound to have a full hearing and then to arrive at an independent opinion, the Legislature should not have made it a matter of discretion by inserting the words "if any" after the words "such hearing". But however, after having a full hearing of the case and listening to the arguments advanced by the learned counsel of both parties at length, per-uaing the entire body of evidence oral, documentary and circumstantial and on consider
AI
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
