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2006 DIGILAW 650 (ORI)

Laxman Nari v. State of Orissa

2006-09-08

A.K.SAMANTARAY

body2006
JUDGMENT A. K. SAMANTARAY, J. — In this Criminal Appeal the appellant calls in question the order of conviction and sentence dated 18.1.1989 passed in S.T. Case No.8/19 of 1988 by the learned 1st Addl. Sessions Judge, Puri convicting him under Section 323 of the Indian Penal Code and sentencing him S.I. for six months. 2. The prosecution case is that on 10.3.1987 at 1.10 P.M. this appellant and deceased Ekadasi Nari assaulted the informant and others and this appellant gave a knife blow on the left arm of the informant as a result of which he sustained bleeding injuries and deceased Ekadasi assaulted the informant on his knee by means of a lathi. During this occurrence Jatadhari Nari and Babaji Nari, who are brothers of the appellant and the deceased as well as of the informant came near the spot and they were also assaulted by the deceased Ekadasi by means of a lathi. As a result of such assault by this appellant and his deceased broth¬er, Jatadhari Nari sustained swelling injuries on his shoulder and lips and Babaji Nari also sustained injuries on his person. One Bali Majhi in order to pacify the matter snatched away the lathis and knife from the appellant and his deceased brother. This incident occurred out of a trifling dispute over digging of earth and tying of cattle at a particular spot. Report was lodged by informant Prafulla on the very same day at 1.10 PM and the police registered the case and took up investigation and submit¬ted charge sheet against this appellant under Sections 341 and 323 I.P.C. 3. Regarding the same occurrence this appellant also reported at the Gop Police Station on which police registered a case and took up investigation and during the investigation of the case since Ekadasi Nari, the brother of the appellant died at S.C.B. Medical College & Hospital, Cuttack, the police ultimately submitted charge sheet against Prafulla Nari, Babaji Nari and Jatadhari Nari under Sections 302, 325/34 I.P.C. 4. Since there was case and counter case both the cases were committed to the Court of Session and were tried by the 1st Additional Sessions Judge, Puri analogously. 5. The plea of the appellant in the Trial Court was one of denial of the allegations. Since there was case and counter case both the cases were committed to the Court of Session and were tried by the 1st Additional Sessions Judge, Puri analogously. 5. The plea of the appellant in the Trial Court was one of denial of the allegations. It is his case that the informant party assaulted his deceased brother Ekadasi Nari and when he went to the rescue of his brother, he was assaulted too and the occurrence took place when the deceased Ekadasi Nari called the informant, Babaji Nari and Jatadhari Nari to bring about a solu¬tion to the dispute over the spot where the earth was dug. But suddenly the informant, Babaji Nari and Jatadhari Nari assaulted him and the appellant. 6. The prosecution examined, as many as eight witnesses and in defence the appellant/accused did not adduce any evidence. 7. The learned counsel appearing for the appellant taking me to the evidence of the prosecution witnesses submitted that although during the course of occurrence the brother of the appellant received serious head injury, which is apparent from the evidence of the doctor, and he succumbed to that injury while under treatment. The prosecution has not explained the injury and has tried to explain it away by saying that the deceased Ekadasi had fits and fell down. From the evidence of the doctor and the injury report which has been marked as Ext.B/4, I find that there is not only existence of skull deep laceration on the right side of the scalp of the deceased but also he had received other injuries on his person and admittedly he had succumbed to the injury while under treatment. If a person falls down due to sudden fits, without any material on record to show that he also received the skull injury due to said fall it cannot be believed that the fall due to fits caused the said severe injury on his head. Apart from that, this appellant also received lacerated injury on his skull on the right side and two other lacerated injuries - one on the midst of the scalp and the other on the forehead - and two abrasions of considerable size and fracture on the base of proximal phalanx of ring finger. 8. Apart from that, this appellant also received lacerated injury on his skull on the right side and two other lacerated injuries - one on the midst of the scalp and the other on the forehead - and two abrasions of considerable size and fracture on the base of proximal phalanx of ring finger. 8. From the above medical evidence it is apparent that the prosecution has all along concealed the truth and has not ex¬plained the injuries on the person of this appellant anywhere in the evidence of any of the PWs examined. The injuries on the person of this appellant are not negligible injuries so that the same could not be noticed by the prosecution-party members. The I.O. of the case who has been examined as P.W.7 and the Doctor examined as P.W.8 have proved the injury requisitions and injury reports and in the cross-examination of the Doctor (PW-8) he has stated that he found on examination police requisition injuries on the person of Naba Dei, the wife of this appellant and Sabitri Nari, the wife of the deceased Ekadasi. This itself is a circum¬stance, which goes to show that not only this appellant and his deceased brother but also their wives were assaulted and injured during the said occurrence. 9. Out of the P.Ws. examined, P.W.1 Prafulla Nari is the informant in this case; P.Ws. 2 and 3 are the brothers Jatadhari Nari and Babaji Nari and P.W.4 is said to be the independent witness. But on a reading of the evidence of P.W.4 it is found that he has equally concealed the truth regarding the assault on deceased Ekadasi and this appellant and their wives, P.W.5 is one Madhusudan Pradhan whose evidence is of the very same nature and he has also concealed the assault part on the appellant and his deceased brother for reasons best known to the prosecution. 10. This being the nature of the evidence adduced on the side of the prosecution and the appellant facing charge under Sections 341 and 323 of the I.P.C., it was incumbent on the part of the trial Court to scan the evidence and evaluate it so as to reach a conclusion on the face of admitted case and counter case and dispute between the two groups of brothers. The Court below became totally oblivious to this aspect of the case and has me¬chanically assessed the evidence to reach the conclusion of find¬ing the appellant guilty under Section 323 of the I.P.C. He has not scanned the evidence or evaluated it to find out who attacked whom first. He has also not gone into the question of concealment of the factual aspect of the case by the prosecution and non-explanation of the injuries on the person of the appellant. 11. The Court below has acquitted the appellant from the charge under Section 341 of I.P.C. and has convicted him under Section 323 of I.P.C., which cannot be sustained in view of my above findings on the prosecution evidence. 12. In the result, I set aside the conviction and sentence passed against the appellant as unsustainable. 13. The appeal is accordingly allowed. The appellant be discharged of the bail bond. Appeal allowed.