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2013 DIGILAW 434 (ORI)

Sarat Naik v. State of Odisha

2013-10-01

B.R.SARANGI, S.PANDA

body2013
JUDGMENT S. PANDA, J. : This appeal has been filed by the appellant challenging the judgment dated 22.10.2003 passed by the learned Addl.Sessions Judge, Fast Track Court No.IV, Bhubaneswar in S.T. Case No.24/107/2002-2000 convicting the appellant under Sections 302 and 307 of I.P.C. and sentencing him to undergo imprisonment for life for the offence under Section 302 of I.P.C. and to undergo rigorous imprisonment for eight years and to pay a fine of Rs.1,000/- under Section 307 of I.P.C. in default to undergo rigorous imprisonment for six months. 2.The case of the prosecution is that one Choudhury Naik, who was serving as Constable in 7th Battalion was staying in a rented house at Saliasahi, Bhubaneswar with his family. The appellant married one Shanti Nayak, who is the daughter of Choudhury Naik. Out of their wedlock they were blessed with a daughter and a son. The appellant was ill-treating and torturing his wife-Shanti Naik. In the month of October, 1999 the appellant and his wife came to the matrimonial house to see Durga Puja festival at Bhubaneswar. In the night of 27/28.10.1999 the son and wife of Choudhury Naik Slept in one room and the appellant, his wife and their children slept in another room. At about 1.00 A.M. in the midnight the wife of Choudhury Naik namely Laxmi Naik heard crying sound of children of Shanti and she got up and went to the room where Shanti was sleeping. At that time the appellant came out from that room and stabbed the belly of Laxmi Naik and again on her chest by a knife. Laxmi Naik shouted and hearing her shout her son namely Ranjan came to that place and saw the appellant running away. He saw his mother with injury on her belly and chest. Then he went inside the room and found his sister Shanti was lying dead. He took his mother to Hospital with the help of neighbourers where his mother was treated as an indoor patient. Thereafter he lodged an F.I.R. before Nayapalli Police Station, on the basis of which Nayapalli P.S. Case No.237 of 1999 was registered for commission of offences under Sections 302 and 307 of I.P.C. and investigation commenced. He took his mother to Hospital with the help of neighbourers where his mother was treated as an indoor patient. Thereafter he lodged an F.I.R. before Nayapalli Police Station, on the basis of which Nayapalli P.S. Case No.237 of 1999 was registered for commission of offences under Sections 302 and 307 of I.P.C. and investigation commenced. After completion of investigation, charge sheet was submitted and the appellant stands charged under Section 302 of I.P.C. for committing murder to his wife-Shanti Naik and under Section 307 of I.P.C. for attempting to commit murder to his mother-in-law Laxmi Devi. 3.The prosecution in order to establish the charges examined as many as nine witnesses and exhibited several documents which were marked as Exts.1 to 12. Out of the witnesses examined by the prosecution P.Ws.1, 2 and 3 were the independent witnesses. P.W.4 is the mother-in-law of the appellant. P.W.5 is the informant and son of Laxmi Dei. P.W.6 is another sister of Laxmi Dei. P.W.7 is the father-in-law of the appellant. P.W.8 is the Medical Officer, who conducted postmortem examination of the deceased and P.W.9 was the Investigating Officer. The plea of the appellant was complete denial of the prosecution case and no witness was examined on his behalf. 4.The learned Addl. Sessions Judge on analyzing the evidence of P.W.4, the injured, P.Ws.5 and 6 and P.W.8, the Doctor held that the prosecution has proved the case beyond all reasonable doubt and accordingly found the appellant guilty under Sections 302 and 307 of I.P.C. and convicted him thereunder. 5.Learned counsel appearing for the appellant submitted that taking into consideration the evidence of the witnesses the appellant may be liable for commission of offence under Section 304, Part-I of I.P.C. and he could not have been convicted under Section 302 of I.P.C. 6.Learned Addl.Government Advocate while supporting the impugned judgment submitted that the trial Court after taking consideration the evidence of the witnesses rightly convicted the appellant under Sections 302 and 307 of I.P.C. and the impugned judgment may not be interfered with. 7.Considering the rival submissions of the parties and after going through the materials available on record, it appears that P.Ws.1, 2 and 3 did not support the prosecution case and they were declared hostile by the prosecution. 7.Considering the rival submissions of the parties and after going through the materials available on record, it appears that P.Ws.1, 2 and 3 did not support the prosecution case and they were declared hostile by the prosecution. It further appears from the evidence of P.Ws.4, 5 and 6, who are mother, brother and sister of the deceased that earlier there was quarrel between the deceased and appellant and a case was registered by P.W.4 against the appellant on the allegation of dowry torture. The appellant was assaulting the deceased frequently. The occurrence took place at about 1.00 A.M. in the dead of the night of 27.10.1999 i.e. three days after the full moon day. Even though there was no electricity there was sufficient light to identify the person. Therefore, the statement of P.W.4, who is the mother-in-law that she identified the appellant, is to be accepted. It further appears that P.Ws.4, 5 and 6 came to the spot and saw the dead body inside the room and they have not saw the assault made by the appellant. The trial Court also recorded that the previous quarrel and assault to the deceased leads to an irresistible conclusion that the appellant committed the murder as he was not pulling on well with the deceased. 7.1P.W.8, the Doctor who conducted postmortem examination of the deceased opined that the injuries were ante mortem in nature and caused by sharp cutting weapon and cause of death was due to shock resulting from hemorrhage and death was homicidal. He has also examined the weapon of offence and stated that the injuries are possible by knife. The chemical examination report also reveals that the blood stained earth contains human blood so also the wearing apparels of the deceased. However, so far as the knife is concerned the chemical examination report reveals that no blood stained is detected. The prosecution has also seized a sharp cutting blade which found human blood on chemical examination and the Doctor on cross-examination stated that if two persons fight with each other by holding knife, such injuries can be caused. From the evidence on record, it appears that P.W.4 was injured herself and so far as her injuries are concerned, it is consistent statements of P.Ws.4, 5 and 6 that the appellant is the author of the injuries. From the evidence on record, it appears that P.W.4 was injured herself and so far as her injuries are concerned, it is consistent statements of P.Ws.4, 5 and 6 that the appellant is the author of the injuries. P.Ws.4, 5 and 6 were present at the spot immediately after the occurrence took place though there is minor discrepancy in their statement so far as material facts are concerned. However, none of them have said that the appellant has assaulted the deceased. The trial Court has held that there was previous quarrel between the appellant and his wife and the deceased was assaulted but there is no material evidence on record that the appellant has pre-intimidation to kill his wife rather the prosecution case is based on the circumstances. Taking into consideration the above facts and the cumulative effect of the evidence of P.Ws.4, 5 and 6 coupled with the evidence of the Doctor-P.W.8 and P.W.9-the Investigating Officer, this Court is of the view that this is a fit case where the sentence can be altered from under Section 302 of I.P.C. to one under Section 304, Part-I of I.P.C. 8.The Apex Court in the case of Adu Ram v. Mukna and others reported in (2005) 30 OCR (SC) 412 held that the facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances were relevant facts which would enter into the area of consideration. Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. By deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be. Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. By deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be. 9.In view of the decision of the Supreme Court (supra) and the discussions made in the aforesaid paragraphs regarding the evidence on record, this Court while setting aside the impugned judgment dated 22.10.2003 passed by the learned Addl.Sessions Judge, Fast Track No.IV, Bhubaneswar convicting the appellant under Section 302 of I.P.C. alters the conviction from under Section 302 of I.P.C. to one under Section 304, Part-I of I.P.C., and sentences him to undergo rigorous imprisonment for a period of ten years, and further upholds the conviction under Section 307 of I.P.C. to undergo rigorous imprisonment for eight years. Both the sentences shall run concurrently. Since the appellant is in custody from 1999, he be set at liberty forthwith, unless his detention is required in any other cases. Dr. B.R. SARANGI, J.I agree. Ordered accordingly.