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2001 DIGILAW 395 (ORI)

Daktar Naik v. State of Orissa

2001-09-13

B.PANIGRAHI, L.MOHAPATRA

body2001
JUDGMENT B. PANIGRAHI, J. — This appeal has assailed the order of conviction and sentence under Sec. 302/34, IPC directing the appellant to undergo imprisonment for life on the ground of commission of murder of Kalandi Naik. 2. The prosecution story, in short, set out in the judg¬ment is as follows : That the deceased Kalandi Naik was said to have purchased a piece of land from one Mahargi Naik. The said Mahargi Naik is the brother’s wife of the accused Tankadhar Naik (since acquitted). The other accused are the sons of accused Tankadhar Naik. The sons of accused Tankadhar Naik cut and removed one Mahua tree from that purchased land of Kalandi Naik. Therefore, he raised protest, as a reason whereof, a village meeting was held in the afternoon of 26.4.90 for which there was quarrel between the deceased Kalandi and Tankadhar. Accused Tankadhar went to his house, which was situated nearer to the meeting place came along with his sons being armed with lathis and axe. He instigated his sons to commit the murder of deceased Kalandi. The appellant, Daktar Naik was alleged to have inflicted 2 axe blows on the head of the deceased which were turned to be fatal causing severe bleeding injuries. Then accused Binod and Rohit (since acquitted) dealt with lathi blows on Kalandi. After Kalandi fell down on the ground, all the accused persons went away from the place of occurrence. The injured Kalandi was thereafter removed to Parjang Hospital in a bullock cart. Nandu Naik, a cousin brother of the injured lodged FIR at Parjang Police Station at 9.30 p.m. on the same day. Kalandi was under treatment, but notwithstanding such treatment, he could not survive and succumbed to the injuries. The case was initially registered under Sections 326/307/34 of the Indian Penal Code, but after death of Kalandi, the case was converted into a case punishable under Sec. 302/34, IPC. 3. The prosecution in order to sustain conviction against the accused persons examined 10 witnesses. But however, the defence declined to adduce any evidence. The learned Sessions Judge on a resume of the evidence of the prosecution was inclined to acquit the accused persons other than the present appellant. Therefore, the appellant has filed this case. 4. P.Ws. 3. The prosecution in order to sustain conviction against the accused persons examined 10 witnesses. But however, the defence declined to adduce any evidence. The learned Sessions Judge on a resume of the evidence of the prosecution was inclined to acquit the accused persons other than the present appellant. Therefore, the appellant has filed this case. 4. P.Ws. 1, 2 and 3 are said to be the eye-witnesses to the occurrence, whereas P.W.4 is said to be a witness who went to the spot immediately after the occurrence. P.Ws. 5 and 6 are said to be seizure witnesses. P.W.7 is the Medical Officer who treated the deceased immediately after he was admitted into the Hospital. P.W.10 is the Doctor who conducted the autopsy on the dead body of Kalandi. P.Ws. 8 and 9 are the I.Os. in this case. 5. P.W.1 who is the informant in this case stated that a meeting was called in the village at the instance of the accused Tankadhar on the occasion of Nirbandha of his son. In the aforesaid meeting Mahargi Naik disclosed that the accused Chak¬radhar Naik had cut and removed the Mahua tree from the land which she sold to the deceased Kalandi, who also challenged accused, Tankadhar. Thus altercation continued between Kalandi and Tankadhar followed by a quarrel. Then Tankadhar went inside the house, invited other sons to the place of occurrence and at the instance of their father, the other accused assaulted Kalandi by means of lathi and tangia. 6. The appellant being exhorted by his father dealt two blows with a tangia on the head of the deceased Kalandi as a result of which he lost his sense. Tankadhar also dealt a blow with an axe to the head of the deceased. The other 2 accused persons inflicted lathi blows. The prosecution attempted to corroborate this part of the evidence with the evidence of other P.Ws. 2, 3 and 4, but the learned Sessions Judge did not believe the prosecution story in toto and acquitted the other accused and convicted only this appellant. 7. The learned advocate appearing for the appellant has invited our attention to the injury report (Ext.7) prepared by P.W.7 and proved in his evidence. He has stated that the injured had received 4 injuries in course of assault. 7. The learned advocate appearing for the appellant has invited our attention to the injury report (Ext.7) prepared by P.W.7 and proved in his evidence. He has stated that the injured had received 4 injuries in course of assault. Again after the death of Kalandi, his dead body was subjected to post mortem examination and P.W.10 noticed as many as 5 injuries and the dimen¬sion of these injuries are noted below. 1. Incised wound 2" x ½” x/4" over medical side of left palm. 2. Incised wound 10" x ½” x ¼” extending from middle of fore¬head, to a point 3" above and 1" posterior to left ear. 3. Incised wound 4" x ½” x ¼” extending from left eye brow meeting the first one. 4. Linear cut fracture of scalp from middle of forehead to a point of 3" above and 1" posterior to left ear. 5. Linear cut fracture of scalp entering to left eye brow and meeting to first one. 8. It is submitted by the learned counsel appearing for the appellant that in the report submitted by P.W.7 it is alleged that the deceased had received only 4 injuries, whereas P.W.10 narrated that the deceased had 5 injuries. How could there be such discrepancy between the reports prepared by two P.Ws. It has been further contended that all the witnesses have stated that the appellant gave 2 blows and all other persons inflicted in¬juries by lathi and axe. All such injuries were inflicted on the head. If that be so, how could there be cut injuries without any lacerated injuries. If the appellant allegedly inflicted 2 blows, in such case he could not have been responsible for all the injuries on the deceased. In this case, the story of the prosecu¬tion is that all the accused persons are responsible for causing death of the deceased and therefore, they are charged under Sec. 302/34 of the Indian Penal Code. There has been no separate head of charge framed against the appellant under Sec. 302 of the Indian Penal Code exclusively. If 3 other accused persons are acquitted from the charge and there has been no evidence that this appel¬lant inflicted all the injuries on the head of the deceased, in that event, the learned Sessions Judge should not have convicted him under Sec. 302 of the Indian Penal Code without any charge having been framed against him. If 3 other accused persons are acquitted from the charge and there has been no evidence that this appel¬lant inflicted all the injuries on the head of the deceased, in that event, the learned Sessions Judge should not have convicted him under Sec. 302 of the Indian Penal Code without any charge having been framed against him. The learned Sessions Judge in his judgment only relied upon the fact of recovery of the pharsa, basing on the disclosure statement alleged to have been made by the appellant. Since on analysis of the evidence adduced in the case, the learned trial Court disbelieved the case against the other accused persons, how on the same set of evidence, the appellant could be convicted basing only on the Doctor’s evi¬dence. It is crystal clear that all the injuries sustained by the deceased might have caused death in ordinary course of nature. Therefore, in the aforesaid situation, we hereby disagreeing with the observation of learned Sessions Judge record an order of acquittal of the appellant-accused. Due to the inherent improba¬ble circumstance brought in the prosecution evidence, we cannot, therefore, hold that the appellant alone was responsible for causing the death of Kalandi Naik. In the result, the appeal is allowed. The order of convic¬tion and sentence passed under Sec. 302, IPC against the appellant is set aside. The appellant, if in custody be set at liberty forthwith, if his detention is not required in any other case. L. MOHAPATRA, J. I agree. Appeal allowed.