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2015 DIGILAW 117 (ORI)

Prafulla Naik v. State of Orissa

2015-02-23

S.K.SAHOO, VINOD PRASAD

body2015
JUDGMENT Vinod Prasad, J. The two sibling uterine brothers Prafulla Naik(A1) and Sania alias Sanyasi Naik(A2), who are appellants before us, were prosecuted for the charge of murder under Section 302/34 I.P.C. by Additional Sessions Judge (F.T.C.), Chhatrapur in Sessions Case No. 5/2005, State Vrs. Prafulla Naik and another and were adjudged guilty of that offence and resultantly were convicted for the said crime and sentenced to serve life imprisonment and to pay a fine of Rs.5000/- each, and in default in payment of fine to serve additional one year simple imprisonment vide impugned judgment and order dated 20.07.2005. Aggrieved by the aforesaid decision both the convicted accused have preferred instant appeal challenging the same. 2. Eschewing unnecessary details and describing briefly, prosecution story as put forth before the trial court revealed that the informant-Balaji Naik/P.W.4, his younger brother Kabi Naik (deceased) and both the appellants Prafulla Naik(A1) and Sania alias Sanyasi Naik(A2) are co-villagers and next door neigbours being resident of the same lane Dandasi Sahi, in village Ujalapally, under Police out post Beguniapada within local jurisdiction of Kodola Police Station, District Ganjam. Topographical spot map, Ext. 9, prepared by the I.O. Gangadhar Bhuyan/PW12 makes it evident that in the said village a north and south lane is bisected by a east –west lane and at ‘T’ junction of it is situated the house of the appellant Sania alias Sanyasi Naik(A2) and to west is the house of another appellant sibling brother Prafulla Naik(A1) followed by the houses of Kabi Naik (deceased) and thereafter of the informant Balaji Naik/PW4 towards further west adjoining each other. All the four houses adjoin each other on the southern side of aforementioned bisecting east-west lane. On the eastern side of north-south lane at ‘T’ junction is situated the house of Kama Naik/PW5 with its back yard towards north. It was further divulged that on 17.06.2004 at 10 a.m. accused appellants encroached upon deceased land and started erecting demarcating fence on which a verbal altercation ensued between them. Kabi Naik, the deceased, then approached other co-villagers Gantei Moharana /P.W.2, Ladu Sahu/P.W.3, Narayan Pradhan/P.W.9, Bhaskar Das and Bhagia Das to settle the dispute and at their intervention and mediation the dispute was settled at that time but not without infusing animus hostile feelings amongst the accused appellants. Kabi Naik, the deceased, then approached other co-villagers Gantei Moharana /P.W.2, Ladu Sahu/P.W.3, Narayan Pradhan/P.W.9, Bhaskar Das and Bhagia Das to settle the dispute and at their intervention and mediation the dispute was settled at that time but not without infusing animus hostile feelings amongst the accused appellants. Rankled and motivated by the aforesaid dispute, on that very day (17.0.06.2004) at 7 p.m. the appellant Sania alias Sanyasi Naik(A2) is alleged to have caught hold of Kabi Naik(the deceased) in front of the house of the appellant Prafulla Naik(A1), when Kabi Naik(deceased) was going somewhere from his house and the latter appellant (A1) repeatedly stabbed him with a knife causing extensive injuries on his chest, left side belly, etc., and thereafter the said appellant(A1) also caused incised cut injuries on the mouth of the injured/deceased. As a result of inflicted injuries to the abdomen intestines of Kabi Naik(deceased) protruded out. Sustaining such grievous injuries injured Kabi Naik squatted on the ground at the backyard of the house of Kama Naik/PW5 at a distance of 20 feet from the house of appellant-Prafull Naik(A1) and lost his breath. This incident was witnessed by informant elder brother Balaji Naik/P.W.4, Abhimanyu Naik/P.W.10, Babu Naik, Kama Naik/P.W.5 and many others. After knifing the body of the injured/deceased, both the assailant/ appellants made their escape good from the incident spot. 3. Balaji Naik(P.W.4)/ the informant, and elder sibling brother of the deceased, got a F.I.R., Ext.2, slated through scribe Khandeswar Sahu and after verifying it’s contents, put his left thumb impression and then carried it to the police out post Beguniapada, and lodged it. S.I. Gangadhar Bhuyan (P.W.12), S.I. police out post received Ext.2 and finding a cognizable offence being disclosed dispatched it to Kodala Police Station for registration of formal FIR, and consequently O.I.C., Kodala P.S. Prafulla Kumar Swain registered FIR No.119 of 2004, Ext. 2/3, under Section 302/34, I.P.C. the same day i.e., 17.06.2004 at 10.30 p.m. mentioning the distance of place of the incident to be 15 K.M.s. Both the appellants were named as the perpetrators of the murder. 4. Soon after receiving the FIR, S.I Gangadhar Bhuyan/ P.W.12, sprang into action by commencing immediate investigation, came to the incident village, examined the informant at 9.30 p.m. and deputed a constable to guard the cadaver of the deceased. Undertaken search of the accused during the night was in vain. 4. Soon after receiving the FIR, S.I Gangadhar Bhuyan/ P.W.12, sprang into action by commencing immediate investigation, came to the incident village, examined the informant at 9.30 p.m. and deputed a constable to guard the cadaver of the deceased. Undertaken search of the accused during the night was in vain. On the following day (18.06.2004), the I.O./ P.W.12, at 6 a.m. revisited the spot and prepared the sketch map of the incident spot Ext.9. Other witnesses thereafter were examined and their statements under Section 161 Cr.P.C. were slated down. Inquest on the cadaver was performed at 7.30 a.m. after appointing inquest witnesses and the inquest report Ext. 3 was penned down. Dead body Challan is Ext.10. At 8 a.m. blood stained earth and sample earth were seized from the back side courtyard of Kama Naik (P.W.5), the seizure list of which is Ext. 6. On the next day (19.06.2004) at 8 a.m. blood stained attires of the deceased consisting of his old Dhoti, old Gamuchha, blue black lungi, one sealed packet blood sample and sealed gauge etc. were seized vide Ext.7. Post Mortem examination report produced by constable No. 648 L.N.Patra was also attached with the case diary. Appellant Prafulla Naik(A1) was arrested on 21.06.2004 at 2 p.m. from the house of his father-in-law Daitari Naik of village Rambha, who confessed his guilt and at his disclosure statement, the weapon of assault, which is a wooden handled knife of eight inches length with blood stains, was recovered from the thatched roof of his(A1’s) house. Confessional statement of the appellant is Ext.11 and the knife is material Ext.1. On 23.06.2004 the seized knife with a requisition was sent to the Medical Officer, F.M.T., M.K.C.G. Medical College, Berhampur for seeking expert opinion. The report of the Medical Officer on query as per Ext.5 was subsequently received by the I.O. On 14.07.2004 at 6 p.m. a crowbar produced by the widow of the deceased was seized by the I.O. in the presence of the witnesses and the seizure memo thereto is Ext.8. Chemical examination report regarding the blood stained cloths etc. is Ext.13. Appellant-Sania alias Sanyasi Naik(A2) was arrested on 03.10.2004 at 12 noon from the house of his father-in-law at village Nimisola and at 1.30 p.m. he was forwarded to the court of JMFC, Kodala. Wrapping up the investigation, I.O./P.W.12 charge-sheeted both the accused-appellants under Section 302/34 I.P.C. 5. Chemical examination report regarding the blood stained cloths etc. is Ext.13. Appellant-Sania alias Sanyasi Naik(A2) was arrested on 03.10.2004 at 12 noon from the house of his father-in-law at village Nimisola and at 1.30 p.m. he was forwarded to the court of JMFC, Kodala. Wrapping up the investigation, I.O./P.W.12 charge-sheeted both the accused-appellants under Section 302/34 I.P.C. 5. Autopsy on the cadaver of the deceased was conducted by Dr. Jyotin Kumar Dash, Associate Professor, F.M.T., MKCG Medical College, Berhampur/ P.W.8. on 18.06.2004 at 1.45 p.m. to whom the cadaver was produced by constable nos. 726 T.Sahu and 648 L.N.Patra along with one Dinabandhu Naik, a relative of the deceased. During post mortem examination following sustained external injuries were found on the cadaver of the deceased:- (i) A cut wound 5c.m x 0.75 cm x muscle deep on left side lower face extending down words from left angle of mouth. (ii) Stab would 2 cm x 1 cm x chest cavity on the left side of upper chest. (iii) Puncture wound 2 cm x 0.5 cm x muscle deep over left shoulder closed to the neck. (iv) Stab would 4 cm x 1.5 cm x abdominal cavity 2.5 cm above and 4 cm. outer to umbilicus through which a loose intestine was found protruded out. (v) Stab wound 4 cm x 1.5 cm x chest cavity on the back just below the left scapula. (vi) Stab wound 6 cm x 1 cm x chest cavity on the back of right side chest. (vii) Cut wound 2 cm x 1 cm x muscle deep on the outer aspect of left arm. (viii) Cut wound 2 cm x 1.5 cm x muscle deep on the outer aspect of right forearm 10cm above deep. (ix) Cut wound 2 cm x 1 cm x muscle deep, 1 cm inner to injury no. viii. (x) Cut wound 3 cm x 1.5 cm x muscle deep under outer aspect of left leg. On dissection, autopsy doctor found all the internal structures beneath external injury no. (ii) perforated through and through up to the chest cavity causing a punctured wound of 1 cm x 0.5 cm x 0.25 cm on the left lung upper lobe. External injury no. On dissection, autopsy doctor found all the internal structures beneath external injury no. (ii) perforated through and through up to the chest cavity causing a punctured wound of 1 cm x 0.5 cm x 0.25 cm on the left lung upper lobe. External injury no. (v) had also perforated all the corresponding internal organs of the chest wall causing puncture on the posterior aspect of lower lobe of left lung, measuring 1.25 cm x 0.75 cm x 1 cm. Likewise injury no. (vi) had also pierced the chest cavity after cutting all the internal organs on it’s path to cause a puncture wound on the posterior aspect of right lung at its lower lobe measuring 2 cm x 1 cm x 1.5 cm. Similarly, external injury no. (iv) on the abdomen wall had cut all the internal organs and had caused a cut injury on the mesentery 3 cm x 2 cm causing puncture wound of 1.5 cm x 0.5 cm on the wall of intestine. All the injuries were ante mortem in nature and were sufficient to cause death. They were inflicted by a cutting pointed weapon and the resultant cause of death was hemorrhage and shock caused by above injuries. Doctor’s estimation was that singularly or cumulatively external injuries nos. (ii), (iv), (v) and (vi) were sufficient in ordinary course of nature to cause death, which had occurred 18 hours (+)(–) three hours. Autopsy examination report is Ext.4. The opinion of the doctor/ P.W.7 regarding the weapon of assault (knife) was that the injuries sustained by the deceased could have been inflicted by the said weapon. The Expert report is Ext.5. 6. Charge-sheeting of both the accused/appellants resulted in registration of the case against them in the concerned committal court of the Magistrate, which ultimately, after observing due committal procedure, was committed to the Court of Session for trial where learned trial judge charged both the appellants with offence under Section 302/34, IPC on 04.03.2005 and since both the accused-appellants refuted that charge, pleaded not guilty and claimed to be tried, that the sessions trial procedure was resorted to prosecute them and establish their guilt. 7. Prosecution during the Sessions trial examined in all twelve witnesses out of whom, Gatei Moharana/ P.W.2, Ladu Sahu/P.W.3, Narayann Pradhan/ P.W.9 are the witnesses of motive and morning brawl, fence dispute and settlement thereof. 7. Prosecution during the Sessions trial examined in all twelve witnesses out of whom, Gatei Moharana/ P.W.2, Ladu Sahu/P.W.3, Narayann Pradhan/ P.W.9 are the witnesses of motive and morning brawl, fence dispute and settlement thereof. The informant Balaji Naik/P.W.4, Kama Naik/P.W.5, widow Bhanu Naik/P.W.6 and Abhimanyu Naik/P.W.10 are the fact witnesses and out of them P.W.10 had turned hostile and had not supported the prosecution case. Trinath Padhy/P.W.1 and Narayan Pradhan/P.W.9 are the seizure witnesses. P.W.8 is the autopsy Dr. Jyoti Kumar Dash whereas Bijaya Kumar Naik/ P.W.7 is the witness to the inquest. I.O. is P.W.12. Bijaya Das/ P.W.11 had turned hostile and had testified virtually nothing. 8. In their statements under section 313 Cr.P.C. both the accused refuted questioned incriminating circumstances and their defence plea is of false implication. 9. Vide impugned judgment and order dated 20.07.2005 learned trial judge/ Additional Sessions Judge (F.T.C.), Chhatrapur held that the prosecution case is established beyond all reasonable doubt and therefore convicted both the appellants of the framed charge and sentenced them as noted above being dissatisfied with which judgment and order the instant appeal has been filed by the convicted accused appellants. 10. In the background of above narrated facts that we have heard Mr. Janmejaya Katikia, learned counsel for the appellants, Mr. A.K. Mishra, learned Standing Counsel for the State, vetted through oral and documentary evidences and scanned the trial court record. 11. Launching a scathing attack on the impugned judgment and order, Mr. Katikia submitted that the learned trial judge committed glaring mistakes in relying upon the prosecution evidence qua appellant Sania alias Sanyasi Naik(A2) as the prosecution has miserably failed to bringing forth unimpeachable credible evidence concerning his participation in the incident to substantiate the allegation that he had caught hold of the deceased and due to the animosity accepted by the prosecution, that his name was foisted in the crime as he is the real sibling brother of another appellant. It was then submitted that the cadaver of the deceased was found not at the incident spot mentioned in the FIR, but was found at the back yard of the house of Kama Naik/P.W.5 and therefore, the possibility that nobody was present nor they had witnessed the incident cannot be ruled out completely and hence both the appellants deserves conferment of benefit of doubt. The incident occurred in darkness and nobody was able to locate the real assailants is quite possible in the wake of I.O.s evidence that no bulb was fitted in the electricity poles near the incident spot. While articulating the submission it was harangued that it is because of this reason that there is discrepancy in mentioning place of the incident in the FIR and court depositions. Prosecution version of seeing the incident in the electric light is concocted and untrue. In the final outcome, it was submitted that the prosecution has not been able to successfully establish the guilt of the appellants, who are entitled to be conferred the benefits of doubt and therefore, their appeals may be allowed by setting aside their conviction and sentence and they be acquitted and set at liberty. 12. Submitting conversely learned Standing Counsel argued that the prosecution witnesses are truthful, reliable and their testimonies are cogent and unblemished. No animus could be brought out by the defence for them to falsely implicate the appellants. Neighbours could be identified even in fading or dim or feeble light and therefore, there was no difficulty for the eyewitnesses to identify both the appellants who were known to them since many decades and were next door neighbours. Cross examination of the fact witnesses is perfunctory and does not demolish the main substratum of the prosecution story nor does it robe the prosecution out of the authenticity of its claim. Medical report being congruent and the doctor’s opinion that the recovered knife could have caused the injuries sustained by the deceased further nails-in the appellants. The investigation had no pit falls, nor it was lopsided and perfunctory nor defense has been able to discredit I.O.’s depositions. Eye witness account of the incident is creditworthy and confidence inspiring and without admitting any other hypothesis it can be safely concluded that the appellants are the real perpetrators of the crime. Concluding the submissions, learned Standing Counsel urged that the impugned judgment is well merited and therefore it be concurred and the appeals being devoid of merits be dismissed in its entirety. 13. We have thoughtfully considered the rival contentions vis-à-vis the evidences on the record. Concluding the submissions, learned Standing Counsel urged that the impugned judgment is well merited and therefore it be concurred and the appeals being devoid of merits be dismissed in its entirety. 13. We have thoughtfully considered the rival contentions vis-à-vis the evidences on the record. What is evident is that the incident had occurred in between next door neighbours in the month of June, very close to the longest day of the year, at 7 p.m. Our heuristic experience informs us that at that time (7 p.m. on 17th June, 2004) some twilight must be available and possibly because of this reason the defense refrained itself from searchingly cross examine the witnesses on this score. Spot topography and site plan, not being disputed, leaves no manner of doubt that both the rival sides are next door neighbours and their houses are adjacent to each other. In such a view even fading light would have been enough to recognize and identify the next door neighbours by the real brother and widow of the deceased. Vetting of depositions of the informant/P.W.4, Kama Naik/ P.W.5 and widow-Bhanu Naik/P.W.6 makes it manifest that the defence had not made any endeavour to challenge the identification of the assailants and in absence of any credible evidence emerging through cross examination it is unwise to accept defence argument that assailants could not be identified. In such a view, the contention raised by the learned counsel for the appellants that the miscreants were unknown and could not be identified is an incipient contention without substance and hence is repelled ostensibly for the reason that specific and credible prosecution story and involvement of the main appellant(A1) in the crime is established convincing without any ambiguity. The defence has miserably failed to dislodge convincing eye witness account, especially of the informant/P.W.4, who was the real elder brother of the deceased relating to (A1) as informant/PW4 had no grouse and animus against (A1) to such an extent to spare the real assailant and implicate him in a falsely cooked up case by fabricating a story. The defence, in fact, had not made any effort to discredit the prosecution story. The straight forward realistic answers given during cross examination authenticates rather than rob the prosecution version of its convincing nature and therefore, we are unable to accept the contention of Mr. Katikia. The defence, in fact, had not made any effort to discredit the prosecution story. The straight forward realistic answers given during cross examination authenticates rather than rob the prosecution version of its convincing nature and therefore, we are unable to accept the contention of Mr. Katikia. The informant had refuted the defence suggestion that after receiving the information regarding the incident, he had lodged the F.I.R. In this contest, the other submission of Mr. Katikia that the cadaver of the deceased was not found in front of the house of appellant no.1, but it was found at the back yard of the house of Kama Naik/PW5 is also unmerited for the reason that the assault incident is never static and twenty feet does not make any difference as during scuffle and after sustaining first stab injury the deceased can staggered to such a distance before becoming unconscious. Number of injuries sustained by the deceased is also indicative of the fact that the stabber and the victim must have moved few paces hither and thither and, therefore, merely because the dead body of the deceased was found at the backyard of the house of Kama Naik/PW5, it does not demolish the prosecution version in any manner. We do not find the contention of Mr. Katikia to be worthy of credence and resultantly we discard it as well. 14. The stabbing incident occurred at 7 p.m. and the FIR about it was lodged with Beguniapada Police outpost without any unexplained delay and infact the formal F.I.R. was registered at 10 p.m. Considering the distance, which is 15 K.Ms between the place of the incident and the police station, we are of the view that the FIR was lodged with promptness and the version contained therein inspires confidence qua the main assailant, appellant No.1 Prafulla Naik(A1) which seems to be authentic and without any embellishment. Appellant no.1 is named in the FIR as the main perpetrator of the crime and, therefore, we are of the view that so far Prafulla Naik(A1) is concerned his participation in the incident is well anointed and he cannot be absolved of the crime committed by him. Inquest report, recovery of blood stained earth, recovery of blood stained attires of the deceased and all additional factors establishes the prosecution case against appellant no.1 Prafulla Naik beyond all reasonable doubt. Inquest report, recovery of blood stained earth, recovery of blood stained attires of the deceased and all additional factors establishes the prosecution case against appellant no.1 Prafulla Naik beyond all reasonable doubt. In this respect we would like to point out that no challenge has been thrown to the date, time and place of the incident by the defence, which has resulted in cementing the depositions of the prosecution witnesses as authentic narrations. Thus, there remains no doubt that the deceased was murdered on 17.06.2004 at 7 p.m. repeatedly being stabbed by appellant no.1 on and around his house and therefore, the appeal preferred by the appellant-Prafull Naik(A1) is wholly merit less and is liable to be dismissed. 15. Now we advert to the appeal of another appellant no.2 Sania alias Sanyasi Naik(A2) and in his respect, we find the contention of appellant’s counsel having worthwhile substance in it. Prosecution has not assigned any weapon to Sania alias Sanyasi Naik(A2). The theory put forth by the prosecution regarding complicity of this appellant does not appeal to reason and it does not seems probable as well. The nature and number of injuries and the parts of the body on which they have been inflicted, do not indicate that the deceased was caught hold of by anybody either from the front or from the back. On the contrary, it seems that he had tried to save himself as he had sustained injuries on both of his hands. Repeated stabbing blows by appellant no.1 on the deceased and his staggering up to the backyard of the house of Kama Naik/PW5 is indicative of the fact that in fact the incident involved only two persons, the deceased and the appellant-Prafulla Naik(A1). Had the deceased been caught hold of and made immobile, he could not have moved to the backyard of the house of Kama Naik/PW5. No pivotal role has been assigned to appellant-Sania alias Sanyasi Naik(A2). It seems that because of the enmity and fencing of the land, his name was also included in the FIR in an omnibus manner with a palliative role of catching hold without any further allegation. His presence at the incident spot does not seems to be probable. No pivotal role has been assigned to appellant-Sania alias Sanyasi Naik(A2). It seems that because of the enmity and fencing of the land, his name was also included in the FIR in an omnibus manner with a palliative role of catching hold without any further allegation. His presence at the incident spot does not seems to be probable. This appellant has been charged with offence of murder with the aid of section 34 I.P.C. but to bring his case within the purview of section 34 I.P.C., common intention, some unimpeachable additional evidence was required which is lacking in the present case. For adopting and relying upon the decades old view ‘that those also serve who stand and wait’, it must be established that standing and waiting was incriminating in nature and was a conscious wait. For anointing charge of common intention ‘census id idum’ (meeting of minds) must be proved without any ambiguity which has not been done in the present appeal. Prior concert since before the incident must exits. Without participation of appellant no.2, the incident could have occurred in the same way in which it had occurred. No change in sequence of annihilating the deceased surfaces if the assigned role of appellant no.2 is kept out. Case of second appellant stands on a different footing from that of appellant no.1. Mere ipse dixit of the witnesses is insufficient to bring the case of (A2) within the fold of section 34 I.P.C. His clothes were not stained with blood, which in normal circumstances should have been had the prosecution story been true concerning his participation in the incident nor any recovery had been made at his instance. This appellant(A2) was arrested after an inordinate delay on 3.10.2004 after a gap of four months and there is no evidence to the effect that during this period any proceeding of attachment u/s 82/83 Cr.P.C. or NBW was taken nor the I.O. stated as such during the trial. No confessional statement of this appellant was also deposed to be recorded as it seems that I.O./PW12 was also not satisfied regarding his participation in the incident. Our summation and discussions lead us to concluded that prosecution has miserably failed to establish guilt qua appellant no.2, Sania alias Sanyasi Naik (A2) and therefore, we are of the opinion that the said appellant Sania alias Sanyasi Naik(A2) deserves to be conferred with benefit of doubt. Our summation and discussions lead us to concluded that prosecution has miserably failed to establish guilt qua appellant no.2, Sania alias Sanyasi Naik (A2) and therefore, we are of the opinion that the said appellant Sania alias Sanyasi Naik(A2) deserves to be conferred with benefit of doubt. 16. In the net result, the appeal preferred by appellant Sania alias Sanyasi Naik(A2) stands allowed. His conviction and sentence through the impugned judgment and order are hereby set aside and he is acquitted of the framed charge. Sania alias Sanyasi Naik(A2) is in jail. He be set at liberty forthwith unless he is wanted in any other case. 17. As concluded herein before appeal preferred by the appellant-Prafulla Naik (A1), being bereft of merits is dismissed and his conviction and sentence through the impugned judgment and order is hereby affirmed. The said appellant (A1) is in jail and he shall remain in jail to serve out remaining part of his sentence. 18. Let copy of the judgment be certified to the learned trial judge for its information.