State of Orissa vs Nirupama Panda

K.P. Mohapatra, J.—This appeal is directed against the judgment passed: by the learned Additional Sessions Judge, Cuttack, acquitting the Respondent of a charge u/s 302 Indian Penal Code for having committed the murder of Basanta Kumar Das (referred to as the ''deceased'') at 3.30 p. m. on 13-5-1979.

Prosecution case is that Respondent was a young widow living in the house of Basidhar Das of village Patapur as his mistress. On 13.5-1979 at about 3-30 p. m. she called the deceased to the house of her master for,repayment of loan of Rs. 600/- which had incurred earlier by pledging a gold mohar and a pair of gold ear-rings, When the deceased went inside the house she stabbed him on the chest by a knife resulting in a sever bleeding injury, The deceased came out of the house to the village lane with blood oozing out of the stab wound and related the incident to several persons including some witnesses. He was removed for treatment to the S.C.B. Medical College and Hospital. Cuttack, where he expired in the night. Intimation of the unnatural death was sent from the hospital to the Mangalabag Police Station which was created as formal F. I. R. (Ext. 1) and the same was forwarded to Salipur Police Station. On 14-5-1979 in the morning the Respondent herself lodged F. I. R. (Ext. 14) at Salipur Police Station stating therein that the deceased entered inside her bed-room and committed rape on her. When he was leaving the place after commission of the rape she shouted. The deceased forcibly caught her neck and attempted to throttle her. Therefore, she picked up a knife and in order to save herself assaulted him by means of the knife resulting in a bleeding injury. On the basis of the F. I. R. (Ext. 14) G. R. Case 1416 of 1979 u/s 376, Indian Penal Code was registered. During investigation autopsy of the dead body of the deceased was performed and the Respondent was examined by a Medical Officer. While final report was admitted in G. R. Case No. 1416 of 1979 based on Ext. 14, charge-sheet was submitted against the Respondent having committed an offence u/s 302, Indian Penal Code.

During trial the Respondent denied that she had borrowed Rs. 600/- from the deceased or his father by pledging a gold mohar and a pair of gold ear-rings which were suspected to be not of gold. She did not send words to the deceased to come to her house for repayment of the loan. On the other band the deceased trespassed into her bed-room and attempted to commit rape on her at the point of a knife and when she resisted, there was a tussle between them. During the tussle, the knife hit the deceased injuring him.

The learned Additional Sessions Judge on examination of the prosecution evidence held that the deceased attempted to commit rape on the Respondent and so in order to save her honour the latter stabbed the former by means of e knife which ultimately resulted in his death. As the murder was committed in exercise of right of private defence, the Respondent could not be convicted u/s 302, Indian Penal Code and so she was acquitted of the charge.

At the bearing, it was not disputed that the death of the deceased was homicidal and was as a result of a stab wound caused by a sharp edged knife on his chest.

In order to prove the case against the Respondent, the prosecution relied upon, (1) the dying declaration made by the deceased before P.Ws. 2, 3. 8 and 10; (2) the extra judicial confession made by the Respondent before p.w. 10; (3) the judicial confession made by the Respondent; and, (4) her immoral character.

So far as the dying declaration is concerned, the evidence of p.w. 10 is very important. He stated that on the date of occurrence at about 3-30 p. m. while he was engaged in thrashing paddy sheaves, he heard a hullah came out of his house and proceeded towards the house of Bansidhar Das. He saw the deceased coming out to the village lane from the house of Bansidhar Das by opening the door of the gate. Blood was coming out from his chest. On his query the deceased told him that the Respondent bad stabbed him. At that time the Respondent was standing on the verandah of the house of Bansidbar Das. After proceeding some distance the deceased fell down on the ground. When some others arrived arid made enquiries from the deceased he told them that he had been to the house of the Respondent to demand his dues and she stabbed him. Although this witness was declared hostile by the prosecution, I find nothing to disbelieve him, because he seems to be an Independent witness. His evidence with regard to the dying declaration has been corroborated by the other witnesses, namely, P.Ws. 2, 3, and 8. It will thus appear from the evidence of these. witnesses that a few hours before his death the deceased had made statements to the effect that the Respondent had stabbed him an the chest by means .of a knife when he had gone to her far demanding his dues. There is however, no good evidence of the alleged loan.

Along with the evidence of dying declaration it is necessary to consider the statements made by the Respondent before p.w. 10. Far this purpose, it is necessary to make a further reference to his evidence where he stated that after hearing from the deceased about the cause of the chest wound the wit nest found the Respondent standing an the verandah of Bansidhar Das and enquired from her. The Respondent told him that she stabbed the deceased, because he outraged her modesty (Atyachar). The above statement of the Respondent was inculpatory in part and exculpatory in the other part. But considered as a whale, it did not tantamount to an extrajudicial confession for the reason that she had justified her action of stabbing the deceased in exercise of her right of private defence. Even if the statement is received as a piece of extrajudicial confession because of its inculpatory part yet an the basis thereof and on consideration of the exculpatory part, it cannot be used as an incriminating piece of evidence against her because she had every right to save her honour even by causing the death .of the person who either committed rape an her or attempted to commit the same. The above being the position, the statement made by the Respondent an the query of p.w. 10 instead of supporting the prosecuting actually worked as a defence which was quite acceptable.

Now coming the judicial confessing (Ext. 15), the Respondent stated that she was having her siesta in a room of the house of Bansidhar Das.,The deceased came there and attempted to commit rape an her. As she shouted, the defeated put cloth inside her mouth and by application of force committed rape on her. At that time in order to save her hanour she stabbed the deceased by means .of a knife. After assault, the deceased was injured and sa he left her and ran away. The confessional statement has to be accepted as a whole. Once it is done, it supports the defence version and not the prosecution case. The learned Standing Counsel draw our attention to the slightly different statements made by the Respondent before p.w. 10, the confessional statement (Ext. 15). and in her examination u/s 313 Cr.P.C.. In the last statement (under Section 313/Cr.P.C.) the Respondent told slightly a different story'' of the deceased attempting to throttle her, when in order to save her from his clothes and in exercise of her right of private defencee she picked up a knife and gave a stab on the chest of her assailant. Despite the fact that she made a slightly different statement at the last leg of the trial, yet the substratum of the defence case remains unaltered which is, the deceased attached her chastity and in order to save her honour she bad to use the knife in exercise of her right of private defence. We did not therefore, find any discrepancy worth the name in the defence version.

10, The evidence of p.w. 4 discloses that the Respondent was married but after her widowhood she led an immoral life by living as a mistress of Banisidbar Das: Even though for the sake of argument it is accepted that she was the mistress of Bansidbar Das yet she was within her rights to save her honour from a rapist. Even a whore is entitled under law to protect herself from attacks of an intending rapist. Therefore, immoral character of the Respondent, even if it is true is of little consequence.

Law is well settled that a judgment of acquittal should not be interfered with unless the assessment of evidence and the conclusion drawn by the trial court are unreasonable erroneous or perverse. Reversal of a judgment of acquittal will not be justified merely on the ground that the appellate court''s view on the evidence on record may be different from that of the trial court or on the same set of evidence two views are reasonably possible (See Ganesh Bhavan Patel and Another Vs. State of Maharashtra, Smt. Dhara Dei Vs. Prafulla Swain and Others, , and Babu Lodhi and Ors. v. State of U.P AIR 1957 S.C. 1268

In the ultimate analyssis and in view of the principle of law indicated above, we are firmly of the view that the learned Additional Sessions Judge took a correct view of facts and law by holding that the Respondent was legally entitled to cause the death of the deceased in order to save her honour and in exercise of her right of private defence. There are absolutely no materials to interfere.

In the result, the appeal is dismissed Bail bond furnished by the Respondent is cancalled.

A.K. Padbi, J.

I agree.