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2006 DIGILAW 368 (JHR)

Pradeep Nayak v. State Of Bihar (Now Jharkhand)

2006-04-17

N.DHINAKAR, RAKESH RANJAN PRASAD

body2006
JUDGMENT 1. Pradeep Nayak, who was arrayed as A2 before the Sessions Judge along with six other accused, was found guilty under Section 452 and 302 I.P.C. The Trial Judge directed him to undergo rigorous imprisonment for a period of two years under Section 452 I.P.C and on being convicted under Section 302 I.P.C, he was sentenced to imprisonment for life. He was acquitted under Section 307 read with Section 34 I.P.C. The Trial Judge also acquitted Golak Nayak (A1), Simola Nayak (A3), Jadu Nayak (A4), Bhadu Nayak (A5), Malti Nayak (A6) and Santo Nayak (A7). The present appeal by Pradeep Nayak is against the said conviction and sentence. 2. The facts of the case are as follows: On 12.7.1993, a calf belonging to the deceased Manbodh Rautia entered the garden of Golak Nayak Aland destroyed the crops. This is said to be the motive. At about 10.00 a.m. on 12.7.1993, the deceased Manbodh Rautia with his wife Nirola Rautia P.W.7 was in the house. According to the prosecution, all the accused including the appellant and acquitted accused entered the house and thereafter the deceased was inflicted with a Tangi blow by the appellant. After that, the appellant and other accused went away. On hearing the cries of P.W.7, P.W.1 Vidhadhar Nayak and P.W.6 Yogeshwar Rautia along with other villagers arrived at the house of the deceased. Thereafter Manbodh Rautia was taken to the hospital. P.W.8 Dr. Madhu Tigga examined the injured Manbodh Rautia and found a lacerated wound measuring 2" x 1/2" x bone deep. The said wound was on the left side of the scalp. After the first aid was given to Manbodh Rautia, he was referred to M.G.M. Hospital, Jamshedpur, for better management. Ext.3, the injury report, was issued by the said Doctor, P.W.8. In the meantime, on getting information about the occurrence, a Police Officer from the police station went to the hospital, to whom Ext.4, the fardbeyan, was given by P.W.7. Thereafter the Police Officer returned to the police station and registered an F.I.R under Ext.6 at 4.00 p.m. Investigation was taken up, during which witnesses were examined. In the meantime, on getting information about the occurrence, a Police Officer from the police station went to the hospital, to whom Ext.4, the fardbeyan, was given by P.W.7. Thereafter the Police Officer returned to the police station and registered an F.I.R under Ext.6 at 4.00 p.m. Investigation was taken up, during which witnesses were examined. While the investigation was proceeding, Manbodh Rautia died at the hospital at Jamshedpur and on getting information about the death, the crime was altered to one under Section 302 I.P.C. Investigating Officer, P.W.10 Indrama Singh went to the hospital, conducted inquest by examining witnesses and prepared the inquest report, Ext.5. A requisition was issued to the Doctor requesting him to conduct autopsy. 3. P.W.5 Dr. Akhilesh Kumar Chaudhary attached to M.G.M. Hospital, Jamshedpur, on receipt of the requisition, conducted autopsy on the dead body at 10.00 a.m. on 14.7.1993 and he found the following injuries: Stiched wound two in number on left half of parietal scalp, hairs shaved around wound. Number of stiches four only over each wound. After stitches removal wound measuring 3 c.m. x 5 c.m. x bond deep and 3.5 c.m. x 0.5 c.m. x bone deep were seen. The parietal bone having cracked, undisplaced, fracture. Internal injuries: whole of subcutaneous and muscular lairs of scalp contused with presence of blood clots over it. Both halves of brain were contused. P.W.5, the Doctor, issued Ext.1, the post mortem certificate, with his opinion that death is on account of head injuries and infection of lungs. In the said report, he has opined that the said injuries could have been caused by a blunt and hard substance. 4. After the completion of investigation, during which witnesses were examined, final report was filed against the appellant and other accused. 5. The appellant was questioned under Section 313 Cr.P.C on the incriminating circumstances appearing against him and he denied them. 6. Learned Counsel appearing for the appellant submits that since the Doctor found lacerated injuries, the case of the prosecution that the deceased was cut with a Tangi cannot be accepted and when the prosecution came out with a version that the deceased was beaten by seven accused, the trial court was in error in convicting the appellant alone on the same set of evidence. On the above submission, we have heard Mr. I.N. Gupta, learned Counsel appearing for the State. 7. P.W.5 Dr. On the above submission, we have heard Mr. I.N. Gupta, learned Counsel appearing for the State. 7. P.W.5 Dr. Akhileshwar Kumar Chaudhary, on examining the dead body and conducting autopsy, issued Ext.1, the post mortem certificate. According to him, the injuries found on the dead body could have been caused by a blunt and hard substance. P.W.8 Dr. Madhu Tigga, who initially examined the deceased when he was brought to the hospital was of the same opinion as could be seen from Ext.3, the injury report. The medical evidence conclusively establish that the deceased died of the injuries and the said injuries were homicidal in nature. 8. The prosecution before the trial court examined P.W.7 Nirola Rautia, who is the wife of the deceased Manbodh Rauti. According to her, when she and her husband were in the house, the appellant and other six accused went to their house and thereafter the appellant with a Tangi blow cut the deceased and on hearing her cries, P.Ws.1 and 6 along with other villagers reached the place. She has also stated that after the incident, her husband was taken to the hospital where first aid was given by P.W.8 and her husband was referred to the Medical College Hospital at Jamshedpur where he ultimately died. 9. We have now to consider whether P.W.7 could have witnessed the occurrence, specially to find out whether the two injuries found on the body of the deceased by the two Doctors could have been caused by the appellant and the appellant alone. Though P.W.7 in chief claimed that she saw the appellant cutting the deceased with a Tangi, in cross-examination she has stated that she was inside the house cooking her meals and that when she heard the words, "Mar Raha Hai, Mar Raha Hai" she came out of her house and found her husband lying with injuries on the ground. She has also added that the villagers were present and lifting her injured husband from the ground. The above admission of P.W.7 in cross-examination, therefore, shows that she actually did not witness the occurrence, came few moments thereafter only to find her husband lying with injuries on the ground. In this background, we have to consider whether it was the appellant who caused the said injuries. The prosecution case, as we have already noticed, is that all the accused inflicted injuries. In this background, we have to consider whether it was the appellant who caused the said injuries. The prosecution case, as we have already noticed, is that all the accused inflicted injuries. The trial court acquitted the other accused but found the appellant alone guilty. If the Doctors could have found only two injuries, then it is imperative on the part of the prosecution to conclusively establish that the said injuries were inflicted by the appellant. We have no such evidence to conclusively hold that the said injuries were inflicted by the appellant, as we have already noticed that P.W.7 came out of the house after the occurrence. When there are more number of accused and when the Doctor found only two injuries, which are lacerated in nature, it is difficult to pin down the appellant as the person who inflicted injuries as it is also possible that the said injuries could have been caused by any other accused who were acquitted by the trial court. It is also worthwhile to remember that though P.W.7 claimed in chief that the appellant cut the deceased with a Tangi, the Doctors found only lacerations which also does not corroborate the oral evidence of P.W.7. In any event, we are of the view that the appellant is entitled to the benefit of doubt as the Doctors found two injuries though there were seven accused and six of them were acquitted by the trial court. We accordingly set aside the conviction and sentence imposed upon the appellant. It is reported that the appellant is in jail. The appellant, Pradeep Nayak, is directed to be released from the jail custody forthwith, if not wanted in any other case(s). The appeal is allowed.