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2008 DIGILAW 42 (ORI)

GIRIDHARI NAYAK v. STATE OF ORISSA

2008-01-15

B.P.RAY, L.MOHAPATRA

body2008
JUDGMENT : L. Mohapatra, J. - This appeal is directed against the judgment and order of conviction and sentence passed by the Learned Additional Sessions Judge, Kendrapara in S.T. Case No. 82/93/10 convicting all the Appellants for commission of offences under Sections 302 and 34 of the Indian Penal Code (in Short 'I.P.C.') and sentencing them to undergo R.I. for life. 2. The case of the prosecution as revealed from the F.I.R. as well as the statements of eyewitnesses is that in between 10.30 to 11 P.M., Akshya Rout (P.W. 2), Abhoy Rout and Karunakar Lenka were returning from Pattamundai Market to their house at village Gobindapur. On their way, at a short distance from the house of the Appellant-Anadi Nayak, Karunakar Lenka and Abhoy Rout sat for urination whereas Akshya Rout proceeded ahead on them. When Akshaya Rout reached near the electric pole near the house of Anadi Nayak, the Appellants surrounded him. The Appellants-Anadi and Ashok were armed with iron rod, the Appellant Giridhari was holding a lathi and the Appellant Abhoy Nayak was holding a sword. It is also alleged that two others namely, Aswini Nayak armed with Farsa and Akshaya Nayak armed with Tenta were also there. Suddenly all the Appellants started assaulting Akshya Rout with their respective weapons. Akhaya Rout shouted for help and when Karunakar Lenka intervened, he was also assaulted by the Appellants Ashok and Giridhari. Thereafter, Abhoy Rout rushed to rescue his brother Akshaya Rout (P.W.2) and he was assaulted by the Appellants. Due to such assault, the deceased-Abhoy Rout fell down whereafter lathi blows and farsa blows were also given. Shouting of the injured attracted the attention of the villagers and when the villagers rushed to the spot, all the Appellants escaped. Thereafter, P.W. 2 and the deceased were shifted to Pattamundai Medical and on the same night, they were shifted to S.C.B. Medical College and Hospital, Cuttack and after treatment, the deceased succumbed to the said injuries on 19.6.1992. On these allegations, though the case was initially registered for a commission of offences under Sections 341, 323, 325 and 34 I.P.C., it turned to a case u/s 302 of the I.P.C. and investigation was taken up.On completion of investigation, charge sheet was filed for commission of offences under Sections 302 and 34 I.P.C. 3. On these allegations, though the case was initially registered for a commission of offences under Sections 341, 323, 325 and 34 I.P.C., it turned to a case u/s 302 of the I.P.C. and investigation was taken up.On completion of investigation, charge sheet was filed for commission of offences under Sections 302 and 34 I.P.C. 3. The Prosecution examined eleven witnesses to bring home the charges.Out of the eleven witnesses, P.W. 1 is the informant and P. Ws. 2, 3, 4 and 5 are eye-witnesses to the occurrence. The Learned Additional Sessions Judge relying on the version of the eyewitnesses and the medical evidence, found the Appellants guilty of charges and convicted them thereunder. 4. Shri Sahoo, the Learned Counsel appearing for the Appellants assails the impugned judgment on the ground that the incident took place on 13.6.1992 whereafter the deceased was immediately shifted to Pattamundai Hospital and only two lacerated injuries were found on the head of the deceased, which were simple. Six days thereafter, the deceased died in S.C.B. Medical College and Hospital, Cuttack and what happened in between 13.6.1992 to 19.6.1992, the prosecution has not come up with any kind of evidence and, therefore the death could be caused due to some other reason. The Learned Counsel further submitted that the version of the eyewitnesses cannot be accepted in view of the contradictions available in their evidence in material particulars. Learned Counsel referring to the evidence of those four eyewitnesses submitted that the evidence regarding assault on the deceased is full of contradiction and the eyewitnesses have made different statements with regard to roles played by different accused persons and as such, their evidence cannot be relied upon. The Learned Counsel for the State submitted that the evidence of eyewitnesses is consistent and supported by the medical evidence and, therefore, this Court may not interfere with the impugned Judgment. 5. Though P.W. 1 is not an eyewitness to the occurrence, he was informed about the incident. P.W.2 is the brother of the deceased and an injured eyewitness. In his deposition, he has stated that on 13.6.1992 in between 10.30 to 11 P.M, the occurrence took place. The Appellants Anadi, Ashok, Giridhari and Akshya assaulted him by means of their respective weapons, as a result of which, he fell down and shouted for help. When Karunakar Lenaka intervened and protested, he was also assaulted by Ashok and Giridhari. In his deposition, he has stated that on 13.6.1992 in between 10.30 to 11 P.M, the occurrence took place. The Appellants Anadi, Ashok, Giridhari and Akshya assaulted him by means of their respective weapons, as a result of which, he fell down and shouted for help. When Karunakar Lenaka intervened and protested, he was also assaulted by Ashok and Giridhari. Thereafter, when his younger brother Abhoy Rout rushed to his rescue, he was also assaulted by the Appellants. The Appellants Anadi and Ashok assaulted the deceased on his head by means for iron rod, Giridhari Nayak dealt lathi blows and Nitua dealt farsa blows to the right leg and right hand of the deceased and the Appellant Avaya pierced a sword to the right side ear of the deceased. When the villagers arrived at the spot hearing the hulla, the Appellants left the place. Though this witness states to have been assaulted and sustained injuries, he was never examined by any doctor. The Learned Counsel Shri Sahoo appearing for the Appellants drew attention of the Court to the evidence of eyewitnesses and pointed out the contradictions to support his submission. P.W.3, who is the brother-in-law of the deceased, in his deposition, has stated that after hearing the shout from a near by house, he rushed to the spot and found P.W. 2 falling on the ground and he was being assaulted by the Appellants. At the same time, the deceased came running to rescue of P.W. 2 but he was also assaulted by the Appellants Anadai and Ashok on his head by means of iron rod. Giridhari assaulted after the deceased fell down. Litua assaulted the deceased by means of farsa and Abhoy assaulted the deceased by means of sword. Here also the Learned Counsel Shri Sahoo appearing for the Appellants drew attention of the Court to the cross-examination In order to point out the contradictions. Similar is the evidence so far as P. Ws. 4 and 5 are concerned. It was contended by Shri Sahoo, the Learned Counsel appearing for the Appellants that though it is alleged that the accused Litua dealt a farsa blow and the accused Abhoy pierced the sword in the right ear of the deceased, no corresponding injuries have been found. Similar is the evidence so far as P. Ws. 4 and 5 are concerned. It was contended by Shri Sahoo, the Learned Counsel appearing for the Appellants that though it is alleged that the accused Litua dealt a farsa blow and the accused Abhoy pierced the sword in the right ear of the deceased, no corresponding injuries have been found. At the time when the deceased was first examined at Pattamundai Medical a or even in the postmortem examination, such injuries having not been found, this part of the story has been developed by the prosecution. Having perused the evidence of P. Ws. 2,3,4 and 5, we find all the four witnesses are consistent with regard to assault by Anadi, Ashok and Giridhari on the head of the deceased by means of iron rod and lathi. So far as the allegation against Abhoya Nayak is concerned, it is alleged that he pierced a sword to the right ear of the deceased but no corresponding injury was found by either of the doctors. Since all the four eyewitnesses are consistent in their statements that the Appellants 1, 2 and 3 assaulted the deceased by means of iron rod and lathi and corresponding injuries have been found by P.W. 6, who first examined the deceased on 13.6.1992, there cannot be any doubt in mind that these three Appellants had assaulted by means of lathi and iron rod on the date of occurrence. 6. From the evidence of P.W. 6, it appears that on 13.6.1992, he examined the deceased and found the following injuries: (i) one laceration injury of size 1" x 1/4" x 1/4" over the left parietal region of scalp which as simple in nature. (ii) Another laceration injury of size 1/2'' x 1/4" x 1/4" over the left maxillary region of face which was simple in nature. (iii) Another abrasion of 3/4" x 1/4" x 1/4" over the left leg 3: below the knee which was simple in nature. 7. As is evident all the three injuries were found to be simple in nature though the doctor found bleeding from the ear P.W. 7, who conducted postmortem examination on 19.6.1992 found contusions. He found on stitched wound situated on left Zygomatic process in front of ragious of left ear. He also found another stitched wound situated on the posterial border of frontal bone adjacent to midline. He found on stitched wound situated on left Zygomatic process in front of ragious of left ear. He also found another stitched wound situated on the posterial border of frontal bone adjacent to midline. Two contusions were found on both upper and lower eyes and on the right forehead. Another stitched wound was situated on medical aspect of the right leg 3 cm. below the knee joint. If the injuries found by P. Ws 6 and 7 are compared, it appears that only two of the injuries found by P.W. 6 correspond to injuries found by P.W. 7 and rest of the injuries found by the P.W. 7 are absent in the report of P.W. 6. There is no explanation as to where the deceased was or was being treated in between 13.6.1992 and 19.6.1992. 8. Considering the evidence as discussed earlier, we are of the view that the prosecution has been able to prove that the Appellants 1, 2 and 3 assaulted the deceased by means of lathi and iron rod causing two lacerated simple injuries, one on the posterial border of frontal bone and the other on the maxillary region of face and an abrasion on the left leg. The death occurred six days after the occurrence. We are, therefore, of the view that the Appellants could only be convicted for commission of offences under Sections 324 and 34 I.P.C. for voluntarily causing hurt by dangerous weapons and means. 9. We accordingly convict Appellants 1, 2 and 3 (Giridhari Nayak, Anadi Nayak and Ashok Nayak @ Mantu) for commission of offences under Sections 324 and 34 I.P.C. and acquit them of the charge u/s 302 I.P.C. It is stated by the Learned Counsel for the Appellants that all the Appellants have already served the sentence for more than two years in the meantime. We, therefore impose sentence on the Appellants 1, 2 and 3 for their conviction under Sections 324 I.P.C.,the period they have already undergone. So far as Appellant No. 4 (Abhaya Nayak @ Hagura) is concerned, though it is alleged that the assaulted by means of sword, no corresponding injury has been found by P. Ws. 6 and 7. He is, therefore, acquitted of the charge entirely. The order of the Learned Additional Sessions Judge is modified to the above extent. The appeal is accordingly partly allowed.