BATAKRUSHNA PARIDAversusSTATE OF ORISSA

                                    [2009] 9 S.C.R. 923
         _;



                                 BATAKRUSHNA PARIDA                               A
                                             v.
                                    STATE OF ORISSA
                            (Criminal Appeal Nos. 6-7 of 2003)
                                      APRIL 28, 2009
                                                                                  B
                       [DR. ARIJIT PASAYAT AND ASOK KUMAR
                                    GANGULY, JJ.]

                      Penal Code, 1860 - s. 304 (Part II) - Occurrence as a
                result of rivalry between villages - Resulting in causing death   c
   -            and injuries - Charge u/s. 302, 307, 148 and 3021149 /PC -
                 Trial Court convicting one accused u/s. 304 (Part II) and,.
                acquitting other accused of all the charges - High Court
                upholding the acquittal order - Order of conviction was altered
                to one u/s. 302 - On appeal by the accused, held: High Court D
                despite holding that the accused fired the shot on the spur of
                the moment and there was free fight amongst the villagers,
                ought not have convicted him uls. 302 - He is liable to be
              · convicted uls. 304 (Part-II).
                                                                                  E
                   CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
               No. 6-7 of 2003.
  ..._
                    From the Judgment & Order dated 11.4.2002 of the High
               Court of Orissa Cuttack in Criminal Appeal No. 251 of 1984
               artd Govt. Appeal No. 6 of 1985.                                   F
                 , Satya Mitra Garg, Sangram Patnaik, Sandha Pandy,
               Maphua Bhushan and Sanjeev Kumar Jha for the Appellants.

                   The Judgment of the Court was delivered by
                                                                                  G
--"f
 .                  ;DR. ARIJIT PASAYAT, J. 1. 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
               agai~st the common order/Judgment of Learned Sessions
                                               923                                H
    924          SUPREME COURT REPORTS [2009] 9 S.C.R.


A   Judge, Dhenkanal in Sessions Trial No.25Dof1983. 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 P,enal Code, 1860 (in
    short the IPC). However the present appellant was convicted
B   in terms of Section 304 Part II IPC and was sentenced to
    undergo rigorous imprisonment for three years. The State
    questioned the acquittal of 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
c   filed an appeal questioning the order of conviction. Both the
    appeals were placed together and disposed of by the common
    judgment.

        2. The skeletal picture of the prosecution case as
    unravelled during trial is as follows :
                                                                       -
D
          3. 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 ·10r1g standing
E   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
F   was serious law and order problem, therefore there was a
    proceeding under Section 107, Cr.P.C. and several suits 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
G
    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
H
                      BATAKRUSHNA PARIDA v. STATE OF ORISSA                  925
                              [DR. ARIJIT PASAYAT, J.]
         ..
                   Bali Parida.                                                      A

                        4. 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          8
                   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. Respondent Dibakar Parida fired
                   another shot from his gun towards Chhota Dehury as a result
                                                                                     c
                   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    D
                   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
                   ch~sed by the prosecution witnesses, appellant Batakrushna
~                  Parida received a lathi blow by one Sikar Dehury (P.W.11) as      E
                   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
              -1
                   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. Kusana Dehury (P.W.7)       F
                   and one Kashi Behera chased respondent Lambodar Pa'rida,
                   but respondent Lambodar Parida fired a shot at them as a result
                   which Kusana Dehury (P.W.7) sustained bleeding injury near
                   his neck.
                                                                                     G
         -1             5. 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~
                   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
                                                                                     H
    926          SUPREME COURT REPORTS [2009] 9 S.C.R.

                                                                              ..
A 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.

          6. On receiving information the 0.1.C. of Kamakhyanagar
B
    police station reached the spot at about 10.30 AM. and after
    receiving information from P.W.1 which he treated as F.l.R.,
    (Ext.1) immediately swung into action. He examined the
    informant and noticed the dead body of Sahadev Dehury lying
    in the bari of Bank Dehury where he held inquest over the
c   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),
D   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.
E                                                                                   ~
        7. On receiving the information, investigation was
    undertaken and common charge·sheet was filed. All the
    accused persons pleaded innocence and false implication.
                                                                       \'""

         8. In order to establish the accusations, 21 witnesses were
F   examined in the Trial Court. Similarly 12 witnesses were
    examined by the accused persons. On 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
G   facts of the present case.
                                                                              ~


        9. However the accused-appellant Batakrushna Parida
  was held to be guilty in terms of Section 304 Part 11 IPC as he                  "T"""

  fired from his gun to scare away the prosecution witnesses and
H in that process a pellet caused a gun shot wound to the
               BIHAKRUSHNA PARIDA v. STATE OF ORISSA                      927
                       [DR. ARIJIT PASAYAT, J.]

            dece~sed which proved fatal. Three years rigorous                     A
      ...    imprisonment was imposed as noted above.           T1 ~10  appeals
            were \filed. Vide the impugned judgment, the High Court
            dismi$sed 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 thaf-'B
            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 r~sult of which Sahadev Dehury died immediately. At this
            juncture, the High Court held that the Trial Court rightly observed
            that s:ection 149 had no application but •it further held that the c
            offen~e 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. D

                   10. 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
             guilzy of offence punishable unde.r Section 302 l?C. The Trial E
            .Ceurt noticed that there was a free fight and a right to private
             pefence was purportedly being exercised by the accused but
             the same was exceeded.
               , · 11. The Trial Court referred to the factual situation and F
            obs~tved 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 deeeased. The High Court came to an abrupt concluGion
            (that it is only conclusion for making the conviction under G
            Section 3tl2 IPC) as follows:-

                 "lt is difficult to prove the intention of Satakrushna 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             H
    928          SUPREME COURT REPORTS [2009) 9 S.C.R.

A         Batakrushna Parida responsible for causing the death of
          Sahadev Dehury punishable under Section 302, IPC."

        12. It is to be noted that the High Court itself confirming
  the view of the Trial Co_urt, observed that the firing was done
  _on the spur of the moment and there was a free fight amonp
8
  the other villagers. The High Court ought not to have held th~t
  the offence committed by the 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
C to serve out the remainder of sentence, if any. The appeals are
  dismissed accordingly.

    K.K.T.                                    Appeals dismissed.