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2008 DIGILAW 1066 (ORI)

DELESWAR NAIK v. STATE OF ORISSA

2008-11-27

P.K.TRIPATHY, S.PANDA

body2008
JUDGMENT : 1. Heard argument and the judgment is as follows: 2. Accused-Appellant Deleswar Naik and his father Godabari Naik faced Sessions Trial No. 69 of 1994 in the Court of Sessions Judge, Phulbani. They were charged for the offence u/s 302/34, I.P.C. on the allegation that on 30.12.1993 in the afternoon, they committed murder of Mandru Naik (hereinafter referred to as "deceased") by sharing the common intention. After a full dressed Trial, Learned Sessions Judge acquitted the co-accused Godabari Naik but found the Appellant guilty of the offence u/s 302, I.P.C. and accordingly, sentenced him to imprisonment for life and also to pay fine of Rs. 5,000/-, in default, to undergo imprisonment for six months. The Trial Court observed that on realization of fine amount, the same was to be given to P.W. 3 Sarojini Naik. 3. It is the admitted fact between the parties that Godabari Naik and the deceased were amongst the children of Late Tupa Naik through two different wives. The Appellant is the son of Godabari. On the date of occurrence having learnt about a sale transaction of the family property, the deceased at about 1.00 P.M. went to the house of accused Godabari and challenged him. That resulted in a scuffle between both the brothers and during that time, the Appellant being present there, as a young man of 22 years, picked up a split wood and dealt three blows and one of that hit on the head and ultimately caused death of the deceased. of course, the accused perso ns denied to the allegation of assault by them and death of the deceased was due to that. Their defence plea was that in course of such scuffle between accused Godabari and the deceased, Sarojini, the widow of the deceased pelted a stone aiming at accused Godabari but accidentally it hit on the head of the deceased and therefore he died. 4. To sustain the charge u/s 302/34, I.P.C., prosecution relied on the evidence of fourteen witnesses. Amongst them, P.W. 1-Prasant Naik, the informant; P.W. 2 Bibisan Naik, a neighbour of accused-Godabari and P.W. 3, Sarojini Naik, the widow of the deceased were examined as eye witnesses to the occurrence. P.W. 1 is also one of the brothers of accused Godabari. P.W. 10, Dr. G.B. Samantaray was the Medical Officer, who conducted autopsy and proved the postmortem report, Ext. P.W. 1 is also one of the brothers of accused Godabari. P.W. 10, Dr. G.B. Samantaray was the Medical Officer, who conducted autopsy and proved the postmortem report, Ext. 16 and also the opinion report, Ext. 16/2. P.W. 13- Dr. Tilottama Sadangi was examined to prove collection of sample blood from accused persons under requisition, Ext. 20 and proved that report, Ext. 20/1. P.W. 9-Niranjan Panda, P.W. 11-Anudhata Parichha, P.W. 12-Brundaban Behera and P.W. 14-Kailash Chandra Patnaik are the police personnel who participated in the investigation. P.W. 4? Rabindranath Tripathy and P.W. 6-Bidyadhar Parida are two persons from the local Tahasil to speak about the application for demarcation. P.W. 5-Rasanta Mallik and P.W. 8 Lasindra Pradhan are two other formal witnesses. In addition to the aforesaid oral evidence, prosecution also relied on series of documents from Exts.1 to 21/2. Amongst them, F.I.R. is Ext. 1, Inquest report is Ext. 2, Seizure list of split wood i.e. the weapon of offence is Ext. 9 and the postmortem report and opinion report are Exts. 16 and 16/2 respectively. The weapon of offence was exhibited as M.O.I and rest of the material objects were wearing apparels. In support of their plea, the accused persons examined one defence witness i.e. D.W. 1-Nilambar Naik. 5. On assessment of evidence, Learned Sessions Judge recorded that evidence of P.W. 10 read with Ext. 16 is sufficient to prove that the deceased suffered homicidal death. It has been noted in the impugned judgment that there was a lacerated wound on the left side of forehead of size 3"x 1/2" x 1/2" and the corresponding internal injury of fracture of left side frontal bone leading to shock and haemorrhage for the homicidal death of the deceased. The opinion report, Ext. 16/2 also speaks that such weapons could cause the aforesaid external as well as the internal injury by single blow. Mr. Acharya, Learned Counsel for the accused-Appellant, in course of his submission, does not dispute to the finding recorded by the Trial Court regarding homicidal death of the deceased. On perusal of the aforesaid evidence, we also find that Learned Sessions Judge has correctly assessed the evidence to record the finding of homicidal death. 6. Learned Sessions Judge, on assessment of evidence of P. Ws.1 to 3, recorded the finding that Appellant is the author of the injury, which resulted in the homicidal death of the deceased. On perusal of the aforesaid evidence, we also find that Learned Sessions Judge has correctly assessed the evidence to record the finding of homicidal death. 6. Learned Sessions Judge, on assessment of evidence of P. Ws.1 to 3, recorded the finding that Appellant is the author of the injury, which resulted in the homicidal death of the deceased. Though, accused Godabari was engaged in the scuffle with the deceased, but he having not contributed any injury which resulted in the death of the deceased, therefore, it is the Appellant alone who is guilty for the offence of murder. In that respect, Learned Sessions Judge found evidence of P. Ws.1 to 3 to be credible and reliable. 7. Mr. Acharya, Learned Counsel for the Appellant argues that defence witness No. 1 stated on oath that the deceased suffered the injury due to stone pelted by P.W. 3. There was no earthly reason for the Trial Court to discard that evidence as untrue. He argues that if that part of the defence plea is accepted, then the Appellant cannot be held guilty for the murder of the deceased. On a reference to the evidence of P. Ws. 1, 2 and 3, we find that there is allegation of dealing more than one blow by the Appellant. At the time of inquest it was found that there were swelling on both the scapula i.e. on the backside of the body of the deceased abutting to the shoulder. On the other hand, evidence of D.W. 1 is of no other violence except hitting of a stone on the head of the deceased and that too, the D.W.1 did not appear before the Investigating Officer to make such a statement. Under such circumstance, we find good reasons for the Learned Sessions Judge to discard the version of D.W.1 about the manner in which he narrated the occurrence. On the other hand, the injuries found at the time of inquest and the injury which resulted in the death of the deceased and noted by P.W. 10 tallies with each other about the manner of occurrence and under such circumstance, P. Ws. 1 to 3 are credible and reliable. Thus, we reject the aforesaid argument of the accused-Appellant and confirm the finding of Learned Sessions Judge that it is the Appellant who is the author of the injury, which resulted in homicidal death of the deceased. 8. 1 to 3 are credible and reliable. Thus, we reject the aforesaid argument of the accused-Appellant and confirm the finding of Learned Sessions Judge that it is the Appellant who is the author of the injury, which resulted in homicidal death of the deceased. 8. Learned Counsel for the Appellant further argues that the undisputed relationship between the accused and the deceased and the contention of the prosecution recording the deceased being the aggressor i.e. having come to the house of accused Godabari to challenge him and engaged scuffle has to be read with the impulsive act of the Appellant to deal blow by split wood to the deceased to free his father, cannot be termed as an act of committing homicide, when admittedly one blow was dealt on the head which ultimately proved to be fatal. Accordingly, he argued that in the event he is not granted benefit on the accidental injury on the head of the deceased, then it may be treated as a case of culpable homicide not amounting to murder, inasmuch as, Appellant had no intention or the knowledge that the blow to the head would cause death of the deceased. 9. Learned Standing Counsel while repelling the other contentions of the Appellant as noted above, however is not able to counter the above contention of the Appellant. Size of the injury has been noted in Ext. 16, the sequence of event has been deposed by P. Ws. 1 to 3 and all such factums indicate that the Appellant had no intention to cause death of the deceased or to cause such bodily injury as is likely to cause death. The blow dealt by him unfortunately resulted in death of the deceased. That aspect of the case was not at all considered properly by Learned Sessions Judge and therefore he erred in convicting the Appellant for the offence of murder punishable u/s 302, I.P.C. Therefore, while setting aside the order of conviction u/s 302, I.P.C. and sentence thereof awarded in the impugned Judgment, we find the Appellant guilty of the offence u/s 304, I.P.C. second part and sentence him to undergo rigorous imprisonment for a period of 5 (five) years. 10. Appellant is on bail as per order No. 5 dated 21.08.1996. 10. Appellant is on bail as per order No. 5 dated 21.08.1996. Therefore, he is directed to appear before the Sessions Judge, Phulbani within a period of two months to suffer the rest part of the punishment if any, or for calculation of the period of detention and setting off of the same in accordance with Section 428, Code of Criminal Procedure. Accordingly, the bail bond is discharged. It is for the Trial Court to take coercive steps to secure his attendance, if he does not voluntarily appears within the aforesaid period. 11. Because of the aforesaid modification in the order of conviction and sentence, the Criminal Appeal is allowed in part. Final Result : Allowed