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2003 DIGILAW 170 (ORI)

Manguli Nayak v. State of Orissa

2003-02-26

M.PAPANNA, R.K.PATRA

body2003
JUDGMENT R. K. PATRA, J. — Both the matters being analogous were heard together and are disposed of by this common judgment. 2. Both the appeals arise out of the judgment dated 5.12.1996 of the learned 1st Addl.Sessions Judge, Berhampur in S.C. No.10 of 1996 (S.C. No.48/1996 GDC) by which the appellant Manguli Nayak (vide Criminal Appeal No.3/1997) has been convicted under Section 302 I.P.C. and sentenced to undergo imprisonment for life and respondent Kama Nayak (vide Government Appeal No.56 of 1998) has been acquitted of the charges. 3. The aforesaid appellant-Manguli Nayak and respondent Kama Nayakani are respectively son and mother. They were placed on trial on the allegation that they in furtherance of their common intention committed the murder of Nakula Gochayat and as such committed an offence punishable under Section 302/34 I.P.C. Case of the prosecution is that the aforesaid appellant and respondent and Nakula Gochayat (hereinafter referred to as ‘the deceased’) are co-villagers being the residents of village Bada Dodanga. On 14.8.1995 at about 6 p.m. the deceased came from his field and sat on the verandah of his house. He sent his younger son (P.W.3) to purchase sugar and kerosene. The deceased thereaf¬ter started abusing as to how and who took away bamboos from his bush. The appellant and respondent being his adjacent neighbours took exception to hurling of abuses and protested to the de¬ceased. The deceased replied that the abuses were not aimed at them but at those persons who took away the bamboos from the bush. At this moment, respondent Kama Nayakani brought out a katari from her house and handed over to the appellant Manguli Nayak and directed him to assault the deceased. The appellant Manguli Nayak accordingly dealt blows on the head of the deceased with the katari and fled away from the spot. The deceased was taken to Gobora P.H.C. in a motorcycle whereafter he was shifted to Berhampur hospital where he succumbed to the injury. 4. The plea of the defence was one of denial. 5. On behalf of the prosecution 12 witnesses were exam¬ined. Defence also examined two witnesses on its behalf. P.W.1 (widow of the deceased), P.W.2 (daughter of the deceased). P.W.3 (son of the deceased) and P.W.4 (co-villager) are eye witnesses to the occurrence. P.W.7 was examined to prove that the deceased made a dying declaration before him. 5. On behalf of the prosecution 12 witnesses were exam¬ined. Defence also examined two witnesses on its behalf. P.W.1 (widow of the deceased), P.W.2 (daughter of the deceased). P.W.3 (son of the deceased) and P.W.4 (co-villager) are eye witnesses to the occurrence. P.W.7 was examined to prove that the deceased made a dying declaration before him. P.W.8 is the doctor who conducted post mortem examination over the dead-body of the deceased. P.W.9 is another doctor at Bhanjanagar hospital, who stitched wounds of the deceased before he was shifted to Berham¬pur. P.W.10 is the doctor who treated the deceased in Gobora P.H.C. P.W.11 is the Investigating Officer. P.W.12 is another doctor of Berhampur hospital. 6. From the post mortem report (Ext.6) and the evidence of the doctor (P.W.8) who conducted autopsy there can be no doubt that the deceased had a homicidal death. P.W.8 after removing surgical bandage from the head and other parts of the body found the following injuries :- “ (i) A stitched wound found over left tempero parietal region slightly obliquely directed of six stitches given and length is 14 cm. (ii) A stiched wound found on the inner aspect of right fore arm found on the inner aspect of right fore arm 2 cm above the wrist joint, 2 stitches were given of length 4 cm. (iii) A stiched wound on the inner aspect of left axilla situated horizontally, 3 stitches were given.” He stated that all the injuries were ante mortem in nature and caused by sharp cutting weapon and injuries over the head were fatal in ordinary Course of nature. 7. Let us first take up Government Appeal No.59 of 1998 in which the acquittal of respondent Kama Nayakani is under chal¬lenge. In order to hold the respondent Kama Nayakani guilty of the charge under Section 302/34 I.P.C., it has to be found out whether there was common intention between her and her son, appellant Manguli. On perusal of the evidence of the eye witness¬es (P.W.1, 2, 3, and 4), we find that the evidence regarding handing over of weapon of offence to the appellant Manguli is very shaky. There is no acceptable evidence to hold that she incited the appellant to assault the deceased with the katari. Therefore, in absence of any cogent, reliable and trustworthy evidence we are not inclined to interfere with her acquittal. There is no acceptable evidence to hold that she incited the appellant to assault the deceased with the katari. Therefore, in absence of any cogent, reliable and trustworthy evidence we are not inclined to interfere with her acquittal. Accordingly, Government Appeal No.59 of 1998 is dismissed. 8. Regarding the conviction of the appellant Manguli Nayak under Section 302 I.P.C., we have no doubt that it was he who assaulted the deceased with the katari. The evidence of eye witnesses (P.Ws. 1, 2, 3, and 4) is very consistent in this regard. They were subjected to cross-examination, but nothing substantial was brought out to discredit their testimony. It is true that P.Ws. 1, 2, and 3 are relations of the deceased, but merely on the ground of relationship their evidence cannot be rejected. In the circumstances, we have no hesitation to hold that the appellant Manguli is the assailant of the deceased. 9. Shri Mishra, learned counsel for appellant Manguli submitted that he assaulted the deceased because of grave and provocation given by the latter. there is force in his submis¬sion. All the witnesses viz. P.Ws. 1, 2 and 3 have deposed that after coming from the field the deceased started abusing to the persons responsible for removal of the bamboos from his bush. The appellant was his neighbour and since the deceased was alleged to have practised witchcraft, they were not in good terms. Thinking that the abuses were aimed at him, he lost his self-control and assaulted the deceased with the katari. In the circumstances, we are inclined to hold him guilty under Section 304 Part-II I.P.C. 10. For the reasons aforesaid, while acquitting the appel¬lant Manguli of the charge under Section 302, I.P.C., we convict him under Section 304 Part-II I.P.C. and sentence him to undergo R.I. for seven years. The appeal is allowed in part. Criminal appeal is allowed in part and the Government appeal is dismissed. M. PAPANNA, J. I agree. Criminal appeal is allowed in part Government appeal is dismissed.