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2014 DIGILAW 458 (ORI)

Dukhabandhu Naik v. State of Orissa

2014-07-31

B.P.RAY

body2014
JUDGMENT B.P. RAY, J. - This appeal is filed challenging the judgment and order dated 24.4.1991 passed by the learned Additional Sessions Judge, Sambalpur in Sessions Trial No. 161/36 of 1990 convicting the appellant under Section 326 IPC and sentencing him to undergo R.I. for five years and to pay a fine of Rs.1000/-, in default, to undergo R.I. for six months more. 2. The prosecution case is that on 27.10.1989, at about 10.30 A.M. allegedly the accused dealt a blow by a crow bar on the head of the deceased Palau Behera of village - Kalla under Barkot Police Station. The accused dealt the fatal blow by the crow bar on the deceased at the entrance way to his house. The further case of the prosecution is that while the accused was putting fence by the side of the road encroaching the passage to the house of the deceased, the deceased protested and called the villagers to the spot, but in spite of this, the accused paid deaf ears and continued to put the fence obstructing the passage leading to the house of the deceased. When the deceased out of anger challenged the accused for the overt acts committed by him and starting up-rooting the 'Merha' (fence), the accused dealt a blow by means of a crow bar on the head of the deceased causing profuse bleeding injuries and after the deceased was mortally wounded, he fell unconscious at the spot. Thereafter, the informant, who is the nephew of the deceased, took the deceased to Deogarh Hospital. Despite giving some preliminary treatment at Deogarh Hospital, since the condition of the deceased was deteriorated, the deceased was referred to the Burla Medical College for better treatment and ultimately on 26.12.1989, the injured succumbed to the injuries after protracted treatment. 3. Thereafter, the informant, who is the nephew of the deceased, took the deceased to Deogarh Hospital. Despite giving some preliminary treatment at Deogarh Hospital, since the condition of the deceased was deteriorated, the deceased was referred to the Burla Medical College for better treatment and ultimately on 26.12.1989, the injured succumbed to the injuries after protracted treatment. 3. In order to prove the case, the prosecution has examined as many as twelve witnesses, out of whom, P.W.1 is the Resident Surgeon of Burla Medical College, who had examined the injured after his admission, P.W.2 is the Record-Keeper of Burla Medical College from whose custody, the bed-head ticket of the deceased was seized by the police, P.W.3 is the informant, who lodged the F.I.R., P.W.4 is a Home Guard, who is an eye witness to the occurrence, P.W.5 is the Tailor of the village, who is also an eye witness to the occurrence, P.W.6 is an witness to the seizure, . P.W.7 is the M.O., P.W.8 is the Revenue Inspector and resident of the village of the parties, who prepared the spot map, P.W.9 is the Doctor, who conducted the post-mortem, P.W.10 is a co-villager, P.W.11 is the A.S.I. of Police and P.W.12 is the I.O. of the case. 4. The plea of the appellant is of complete denial to the charges levelled against him. The further plea of the appellant is that the case is palpably false and due to previous enmity with the deceased and the witnesses, he has been falsely implicated in the case. 5. Learned counsel for the appellant vehemently urges that if the evidence of the witness is taken into consideration, the appellant is liable to be acquitted of the charges levelled against him. He also submits that the dispute is of the year 1990 and, in the meantime, more than twenty three years have elapsed and the appellant is now more than forty eight years. 6. Learned counsel for the State, on the other hand, contends that the conviction and sentence imposed on the appellant is just and reasonable and this Court should not interfere with the same. 7. Taking a lenient view of the matter and the fact that the incident has taken place more than twenty three years back and the death occurred after about two months of the incident, no useful purpose will be served in sending the appellant to custody. 7. Taking a lenient view of the matter and the fact that the incident has taken place more than twenty three years back and the death occurred after about two months of the incident, no useful purpose will be served in sending the appellant to custody. However, following the decision in the case of Sarup Singh v. State of Haryana represented by the Home Secretary, (2009) 16 SCC 479 , this Court is of the view that the interest of justice would be best served if the substantive period of sentence is reduced to the period already undergone and, consequently, the appellant is directed to pay a fine of Rs. 20,000/- (rupees twenty thousand) by way of compensation. This Court directs accordingly. The fine amount shall be deposited before the trial Court within a period of one month from the date of receipt of the certified copy of this judgment. On deposit of the aforesaid amount of Rs. 20,000/-, a sum of Rs.19,000/- (Rupees nineteen thousand) shall be paid to the legal heirs of the deceased and a sum of Rs.1000/- (Rupees one thousand) shall be paid to the State-exchequer. Failing to deposit the amount, the judgment and order of conviction passed by the learned Sessions Judge shall remain operative. The Criminal Appeal is accordingly disposed of.