Research › Search › Judgment

Orissa High Court · body

2009 DIGILAW 786 (ORI)

NANDAN NAHAK v. STATE OF ORISSA

2009-10-14

A.S.NAIDU, B.N.MAHAPATRA

body2009
JUDGMENT : A.S. Naidu, J. - The Appellant faced trial for commission of offence punishable u/s 302 of I.P.C. in S.T. Case No. 22/ 1999/S.C.No. 348/1999 GDC. By judgment and order dated 13.3.2001 he was convicted and was sentenced to undergo R.I. for life. Being aggrieved the Appellant has approached this Court by filing this appeal u/s 374 of the Code of Criminal Procedure 2. Bereft of unnecessary details, the prosecution case in short is that on 07.2.1999 Bhagabat Nahak (P.W.7) lodged a written F.I.R. (Ext.5) at Polasara P.S. inter alia alleging that on 6.2.1999 at about 9.00 P.M. the elder brother of the informant, Jaya Nahak, picked up a quarrel with his wife Chandrakala (P.W.6) and the reason for such quarrel was preparation of fish curry. In course of altercation between husband and wife accused Nandan Nahak suddenly came and assaulted Jaya Nahak on his head and other parts of the body thereby causing bleeding injuries. The informant and Ors. immediately took Jaya Nahak to Polasara Hospital for treatment. The injuries being grievous, after giving first aid the doctor at Polasara Hospital referred Jaya Nahak to M.K.C.G. Medical College & Hospital, Berhampur for better treatment. Unfortunately, at Berhampur Hospital Jaya Nahak was declared dead. On 07.2.1999 the doctor of the Medical College, Berhampur gave information and on the basis of such information the I.I.C., Baidyanathpur P.S. registered U.D. Case No. 10/1999 and directed to P.W.11 to enquire into the matter. 3. In course of enquiry P.W.11 examined Dr. Mukherji and relatives of the deceased, held inquest over the dead body in presence of witnesses, sent the dead body for post mortem examination and seized the wearing apparels of the 'deceased and thereafter sent a VHF message to O.I.C., Kodala P.S. intimating the said fact. In the meanwhile Kodala P.S. Case No. 8/1999 was registered against the accused basing upon the F.I.R. lodged by the informant, P.W.7 and P.W.9 had started investigation. He examined the informant, witnesses, visited the spot and arrested the accused, who while in police custody confessed that he had assaulted the deceased by means of an iron challen (rod) which was concealed in the bari. It is stated that he gave recovery of the iron challen in presence of witnesses. He examined the informant, witnesses, visited the spot and arrested the accused, who while in police custody confessed that he had assaulted the deceased by means of an iron challen (rod) which was concealed in the bari. It is stated that he gave recovery of the iron challen in presence of witnesses. After ceasing the same and other incriminating materials and after completion of the investigation, charge sheet was submitted against the accused for commission of offence u/s 302 I.P.C. in the Court of learned J.M.F.C., Kodala in G.R. Case No. 15/1999. After being satisfied from the Police documents that a prima facie case was made out learned J.M.F.C. took cognizance of the offence and committed the case to the Court of Session for trial. 4. The accused pleaded not guilty. In order to establish their case, the prosecution got examined eleven / tnesses. Out of them P.W.1 was the rickshaw puller who took th deceased in his rickshaw to Polasara Hospital, P.Ws.2 and 3 were eye witnesses to the occurrence, P.W.4 was the doctor who conducted post mortem over the dead body, P.W.5 was the Medical Officer attached to Polasara U.G.P.H.C. who gave first aid treatment to Jaya Mahak, P.W.6 was the wife of the deceased and was an occurrence witnesses, P.W.7 was the brother of the deceased and as an occurrence witness, P.W.8 was the post occurrence witness, P.W.9 was the S.I. of Police of Polasara who conducted the preliminary investigation, P.W.10 was a seizure witness in whose presence statement of the accused was recorded in the P.S., he did not support the prosecution case and turned hostile and P.W.11 was the I.O. who had conducted the inquest over the dead body. On behalf of the defence no witness was examined. 5. Learned Second Addl. Sessions Judge after discussing the evidence in extenso arrived at a conclusion that the prosecution could prove beyond all reasonable doubt that the accused gave the fatal blow, consequently he was found guilty and was convicted. The said judgment, as stated earlier, is assailed mainly on the ground that the learned Second Addl. Sessions Judge has not considered the evidence carefully and the conclusions arrived at are based more on surmises and conjectures than merit of the evidence. The said judgment, as stated earlier, is assailed mainly on the ground that the learned Second Addl. Sessions Judge has not considered the evidence carefully and the conclusions arrived at are based more on surmises and conjectures than merit of the evidence. It is averred that Court of Sessions acted illegally in relying upon the evidence of the witnesses though the same suffer from inconsistency and the prosecution case was developed from stage to stage. 6. In course of hearing Mr. Sahu, learned Counsel for the Appellant, strenuously took this Court through the evidence and submitted that the prosecution totally failed to establish the motive of the accused. Further, it is submitted, the evidence adduced by the prosecution is full of discrepancies. According to learned Counsel the doctor had clearly admitted that the injuries sustained by the deceased were possible by a fall on hard substances. That apart, number of discrepancies appeared in the evidence of eye witness and as such the conclusions arrived at by the Second Addl. Sessions Judge, it is submitted, were not sustainable in law. 7. The submissions made by learned Counsel for the Appellant are strongly repudiated by learned Counsel for the State. According to learned Counsel for the State the Second Addl. Sessions Judge has discussed the evidence vividly and the conclusions arrived at are in consonance with the evidence available and it is a fit case where the order of conviction needs no interference. 8. In order to appreciate the arguments advanced we went through the evidence meticulously and heard the parties diligently. Perusal of the evidence of P.W.4, the doctor who conducted tne post mortem report as well as the evidence of P.W.5, the doctor, who examined the injured at the very first instance and administered first aid reveals that Jaya Nahak sustained grievous head injuries. According to the doctor, who conducted autopsy, the death was caused due to "cranio?cerebral" resulting from blunt force applied on the head which was fatal and sufficient to cause death in ordinary course of nature. After going through the said evidence and perusing the injury report (Ext.2) and post mortem report (Ext.1), this Court is satisfied that the death of Jaya Nahak was homicidal in nature. In view of the aforesaid, we do not find any infirmity in the conclusions arrived at by learned Second Addl. Sessions Judge to the said effect. 9. After going through the said evidence and perusing the injury report (Ext.2) and post mortem report (Ext.1), this Court is satisfied that the death of Jaya Nahak was homicidal in nature. In view of the aforesaid, we do not find any infirmity in the conclusions arrived at by learned Second Addl. Sessions Judge to the said effect. 9. The only other point which needs for determination in this case is, as to, who was the author of the aforesaid crime. The prosecution in order to prove the guilt of the Appellant relied upon the evidence of two eye witness being P.W.6 the wife of the deceased and P.W.7 the informant of the case who happens to be the brother of the deceased. It is pertinent to mention here that the plea of the prosecution that accused while in police custody confessed his guilt and gave discovery of the weapon of offence could not be established as the seizure witnesses have turned hostile and did not support the prosecution case. From the evidence of P.W.6, it appears there was a quarrel between husband (deceased) and wife (P.W.6) with regard to preparation of fish curry, at that juncture accused came and called her husband outside and gave a blow with an iron rod. The allegations made in the F.I.R. however reveal that in course of altercation between P.W.6 and her husband the accused came and gave a blow in their house. Thus, there is material discrepancy with regard to the place where the deceased was assaulted by he accused. P.W.7 the other eye witness has also stated that the accused came and took the deceased with him and thereafter gave a blow. This story is also contrary to the statement made in the F.I.R. so also the statement made by the witnesses in course of investigation u/s 161 Code of Criminal Procedure Perusal of the medical evidence also reveals that there is some discrepancy with regard to the assault. Surprisingly, none of the witnesses have explained the reason as to why the accused gave the blow. Of course absence of motive may not be relevant in a case where the evidence is overwhelming, but it is a plus point ot the accused in a case where the evidence against him is only substantial or not very much trustworthy. Surprisingly, none of the witnesses have explained the reason as to why the accused gave the blow. Of course absence of motive may not be relevant in a case where the evidence is overwhelming, but it is a plus point ot the accused in a case where the evidence against him is only substantial or not very much trustworthy. No doubt, prove of motive is not necessary to sustain conviction, but when the prosecution puts forward a specific case as to motive for the crime, the evidence regarding the same got to be considered in order to judge the probabilities. Unfortunately, the prosecution failed to establish the said fact. 10. In the case at hand, the consistent allegation of the prosecution is that the accused all of a sudden picked up an iron rod which was lying on the floor and gave a blow on the back of the head. The prosecution has totally failed to establish the mens rea or any preplan or premeditation so far as the accused is concerned. That apart, it appears that the accused has already in custody for about ten years. 11. Considering all these facts and the evidence, coupled with the medical evidence, this Court finds that there are too many loose ends in the prosecution case inasmuch as the prosecution could not establish the guilt beyond all reasonable doubt, but then the evidence of P.Ws.5 and 6 are very clear. Considering the said fact and taking an over all picture of the entire case and the manner in which the crime was committed, we feel that ends of justice and equity will be better served, if the conviction passed u/s 302 IPC is set aside and instead the accused-Appellant is convicted for the offence u/s 304 Part-ll IPC and sentenced to the period of imprisonment already undergone by him and we direct accordingly. The Appellant is also sentenced to pay a fine of Rs.2, 000/- (rupees two thousand), in default, to undergo R.I. for a period of three months. With the aforesaid modification of sentence, the Crl. Appeal is partly allowed. B.N. Mahapatra, J. 12. I agree.