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2009 DIGILAW 729 (ORI)

HATA NAIK v. STATE OF ORISSA

2009-09-14

A.S.NAIDU, S.C.PARIJA

body2009
JUDGMENT : S.C. Parija, J. - This Criminal Appeal is directed against the judgment dated 17.03.1997, passed by the Additional Sessions Judge, Khurda, in S.T. Case No. 63/170 of 1995, holding the accused-appellant No. 2 (Chema Naik) guilty of offence u/s 302 Indian Penal Code and accused-appellant No. 1 (Hata Naik) guilty of offence u/s 323 Indian Penal Code and convicting them thereunder. 2. The prosecution case, if brief, is that one Jambeswar Naik, Tareswar Naik and Sadhu Naik of village Rasol possessed a Bagayat in their village, which is closed to the house of accused Hata Naik. They had planted mango, cashew nut and other sapplings in the said Bagayat. On Raja Sankranti day, in the year 1992, Raja Naik (P.W.7) found the live stock of accused Hata Naik to have strayed into the Bagayat and damaged small plants, for which he cautioned accused Hata Naik, who retaliated by abusing him in filthy language. Thereafter, P.W.7 left the place and went to the pond to take his bath. While returning, he found accused Hata Naik still abusing him. He proceeded to his house and changed to dry clothes and thereafter came out of his house to enquire why Hata Naik was still abusing him in obscene language. When P.W.7 reached in front of the house of accused Hata Naik and wanted to know as to why he was unnecessarily being abused, accused Hata Naik raised his voice further. In the meanwhile, deceased Madhu Naik tame to the spot hearing the altercation between P.W.7 and accused Hata Naik. During the altercation, accused Hata Naik went into his house and brought out a bamboo lathi (M.O.III) and dealt a blow to the head of deceased Madhu Naik causing bleeding injury on his head. As a result of that blow, deceased Madhu Naik fell down on the ground, whereupon accused Chema Naik (who is the son of accused Hata Naik), who had come to the spot armed with a Gainti (M.O.I), dealt a blow to the head of the deceased Madhu Naik on its blunt side, who was already lying on the ground due to the lathi blow of accused Hata Naik. As a result of such assault, Madhu Naik died at the spot. 3. As a result of such assault, Madhu Naik died at the spot. 3. Seeing the murderous assault on deceased Madhu Naik, P.W.7 came forward to rescue his brother but at that moment, accused Hata Naik dealt one blow on his head by the said lathi, causing injury to him. It was further alleged that Chema Naik also dealt another blow to the head of P.W.7 by means of an iron rod (M.O.IV), which was passed on to him by his mother accused Radha Dei. 4. On the aforesaid allegation, Govind Naik (P.W.2), who is the son of deceased Madhu Naik, lodged an oral report before the O.I.C., Begunia Police Station, which was reduced into writing and registered as an FIR (Ext. 1/2). On the basis of such report, the O.I.C., Begunia P.S. (P.W.9) took up investigation and on completion of the same, filed charge sheet against the accused persons for committing the murder of Madhu Naik. 5. The plea of the accused persons was one of complete denial and that they have been falsely implicated in the case. 6. The prosecution examined 13 witnesses, out of whom, P. Ws. 9, 10, 12 and 13 are the Investigating Officers, P.W.8 is the doctor who conducted autopsy over the dead body of Madhu Naik and P.W.11 is the doctor, who examined P.W.7 and issued Injury Report as per Ext.5/1. P.W.6 is a witness to the seizure of two bamboo lathis (M. Os. II and III), one Gainti (M.O.I), an iron rod (M.O.IV) and wearing apparels belonging to accused Hata Naik seized from his house. He is also a witness to the inquest over the dead body of deceased Madhu Naik. P.W.1 is the son of deceased Madhu Naik. P.W.3 is a neighbour of accused persons. P.W.4 is a post-occurrence witness, who is stated to have arrived at the scene of occurrence immediately after the assault, when the accused persons were still present at the spot. P.W.5 is an independent witness to the occurrence. 7. The defence examined one witness in support of its plea. 8. The doctor (P.W.8), who conducted autopsy over the dead body of Madhu Naik, found one bruise of 2 x 11/2" present around the left eye of the deceased and another injury in an area of 4" over the left front parietal region of skull of the deceased. 7. The defence examined one witness in support of its plea. 8. The doctor (P.W.8), who conducted autopsy over the dead body of Madhu Naik, found one bruise of 2 x 11/2" present around the left eye of the deceased and another injury in an area of 4" over the left front parietal region of skull of the deceased. He opined that the second injury had caused laceration of the brain matter, which had oozed out of the head of the deceased. On dissection, he found the underlying skull to have been fractured into pieces causing extra dural, sub-dural and intra cerebral haematoma. P.W.8 opined that the injuries were ante mortem and grievous in nature. He further stated in his evidence that he had received a Gainti without a handle and bamboo lathi from the I.O. for his opinion, whether the injuries on the deceased could have been caused by the said weapon of offences. He gave his report in writing, as per Ext.23, that if the Gainti was struck on the blunt side (where the wooden handle is fitted) to the head a person, it would produce the injury, as mentioned in the post-mortem report. 9. The other doctor (P.W.11) who had examined P.W. 7 on police requisition, stated in his evidence that he had found five clotted bleeding injuries all on the skull, right forehead, left scapular region besides one abrasion below the left hand. P.W.11 opined that all the injuries were simple in nature and might have been caused by blunt and hard weapon. 10. Coming to the evidence of P. Ws. 1, 2, 3, 5 and 7, all of them directly implicated accused Chema to have dealt a blow by the Gainti (M.O.I) on the head of deceased Madhu Naik by its blunt side, while the deceased was lying on the ground because of the lathi blow given to him earlier by accused Hata Naik. On the basis of the oral evidence of said P. Ws.1, 2, 3, 5 and 7, who are the eye witnesses to the occurrence, learned Additional Sessions Judge came to hold that accused Chema Naik was guilty of offence u/s 302 I.P.C. 11. Coming to the other accused Hata Naik, the informant (P.W.2) had alleged that accused Hata Naik had dealt a lathi blow on the head of the deceased, as a result of which he fell down on the ground. Coming to the other accused Hata Naik, the informant (P.W.2) had alleged that accused Hata Naik had dealt a lathi blow on the head of the deceased, as a result of which he fell down on the ground. All the eyewitnesses, including P. Ws.3 and 5 had deposed that they had seen Hata Naik to have dealt lathi blow on the head of the deceased, for which he fell down on the ground. Considering the evidence of doctor (P.W.8), learned Additional Sessions Judge came to hold accused Hata Naik guilty of offence u/s 323 Indian Penal Code. Coming to the injuries on the person of P.W.7, doctor (P.W.11) opined that the injuries were simple in nature and were possibly caused by a hard and blunt weapon. All the eye witnesses to the occurrence also implicated accused Hata Naik to have dealt lathi blow on the head of P.W.7, when he came forward to save his brother Madhu Naik. Accordingly, learned Additional Sessions Judge found accused Hata Naik also guilty of the offence u/s 323 Indian Penal Code for having voluntarily caused simple hurt to P.W.7. 12. On an analysis of the evidence on record, both oral and documentary, learned Additional Sessions Judge proceeded to hold accused Chema Naik guilty u/s 302 Indian Penal Code and accused Hata naik guilty of the offence u/s 323 Indian Penal Code and were accordingly convicted thereunder. Accused Hata Naik was also found guilty u/s 323 Indian Penal Code for voluntarily causing simple hurt to P.W.7 All the other accused persons were found not guilty of the offences of which they were charged and were accordingly acquitted. 13. Learned Counsel for the Appellant has forcefully submitted that there being material contradictions wad, inconsistencies in the evidence of the eye witnesses with regard to the sequence of events, the same could not have been relied upon by the learned Additional Sessions Judge in basing the order of conviction.In this regard, it is submitted that as there is no clear, cogent, and credible evidence to establish the exact role played by the Appellants in the alleged crime and as the so-called eye witnesses were, in fact, interested witnesses, their version should not have been relied upon by the learned Additional Sessions Judge, to hold the accused persons guilty. It is specifically submitted that even accepting the evidence of the eye witnesses and as narrated by P.W.7, as there was altercation and hot exchange of words between the parties and during such altercation, accused Hata Naik having brought out a bamboo lathi and dealt a sudden blow on the head of deceased Madhu Naik and accused Chema having dealt a blow on the head of the deceased with the blunt side of a Gainti, which is confirmed by the medical evidence of P.W.8, it cannot be said that the accused persons had any motive or intention to commit the murder of deceased Madhu Naik and that the assault was more in the heat of passion and in a fit of anger and not pre planned or premeditated. Accordingly, it is submitted that at best accused Chema Naik-appellant No. 2 can be said to be guilty of the offence u/s 304 Part-II Indian Penal Code and not u/s 302 Indian Penal Code. It is submitted by the learned Counsel for the Appellant that accused Chema Naik-appellant No. 2 has already been in custody for more than eight years. 14. On an analysis of the evidence on record, we find that P.W.7 had gone to the house of accused Hata Naik to question him as to why he was abusing him in filthy language and in the altercation which ensued, accused Hata Naik brought a bamboo lathi and dealt a blow suddenly on the head of the deceased Madhu Naik, who fell on the ground, whereupon accused Chema Naik dealt a blow on the head of accused with the blunt side of Gainti, which he was holding. Hence, 'from the sequence of events, it cannot be said that accused Hata Naik or Chema Naik had any prior motive or intention to assault the deceased nor they had any prior knowledge that P.W.7 would come to their house and question them as to why accused Hata Naik was abusing him. In the back drop of such evidence on record, it cannot be said that the accused persons had any prior motive or intention to assault deceased Madhu Naik or P.W.7 and the entire incident had taken place on the spur of the moment, without any pre-meditation. In the back drop of such evidence on record, it cannot be said that the accused persons had any prior motive or intention to assault deceased Madhu Naik or P.W.7 and the entire incident had taken place on the spur of the moment, without any pre-meditation. We are, therefore, of the view that the conviction of accused Chema Naik-appellant No. 2 u/s 302 Indian Penal Code is not proper and justified and interest of justice would be best served if his conviction is modified to one u/s 304 Part-II Indian Penal Code. The conviction of accused Hata Naik u/s 323 Code of Criminal Procedure is proper and justified and requires no interference. 15. In view of the above, the conviction of the accused Chema Naik-appellant No. 2, u/s 302 Indian Penal Code is set aside and instead he is convicted u/s 304 Part-II Indian Penal Code and is sentenced to imprisonment for the period already undergone by him. The conviction of accused Hata Naik u/s 323 Indian Penal Code is confirmed and be is sentenced to the period of imprisonment already undergone. 16. With the above modification, the Criminal Appeal is disposed of.