Research › Search › Judgment

Orissa High Court · body

2016 DIGILAW 840 (ORI)

Kathu Naik v. State of Odisha

2016-09-20

K.R.MOHAPATRA, VINOD PRASAD

body2016
JUDGMENT By the Bench Challenge in this Appeal has been made by the sole Appellant Kathu Naik is to the impugned judgment and order dated 26.02.2005 recorded by Ad hoc Additional Sessions Judge (Fast Track), Keonjhar in S.T. Case No. 134/1 of 2004-05 (State Versus Kathu Naik) vide G.R. Case No. 394 of 2004 relating to Nayakote PS Case No. 12 of 2004, wherein, the learned trial Judge has found the appellant guilty for offence punishable under Section 302 IPC and has convicted him for the said offence. However, from paragraph-12 last portion and paragraph-13, which are the last two paragraphs of the impugned judgment, we find that the learned trial Judge has written. “In view of the aforesaid, to meet the ends of justice this Court is of the considered opinion which is in agreement with the learned State counsel to sentence the convict to undergo life imprisonment.” Speaking by words, in fact, no sentence was pronounced, but the learned trial Judge intended to sentence the appellant for life imprisonment. Be that as it may, the appellant has remained in jail custody for more than 12 years, for which we do not want to throw the appeal out of consideration because of the aforesaid mistake per oversight. 2. Short narration of the incident indicates that in village Khuntakata, Gundula two real sibling brothers, namely, Gopal Naik and Sadhu Naik aboded. Dura Naik PW-2 is the wife of Gopal Naik and the present appellant, Kathu Naik is their son. Elder brother of Gopal Naik is, Sadhu Naik, whose wife was deceased –Karmi Naik. It is alleged that PW-2 informed the informant Duan Pradhan @ Duan Giri in Banspal Hospital that previous night at about midnight, Kathu Naik (appellant), son of Gopal Naik and Dura Naik, had murdered Karmi Naik, his elder aunt. FIR about the incident was got slated through the O.I.C., Nayakote PS, which is at a distance of 30 KMs, namely, Suresh Kumar Sandha PW-8, on 02.05.2004 at about 5.00 PM, which was registered as Nayakote PS Case No. 12 of 2004 ;under Section 302 IPC. PW-8 engineered the investigation; examined the complainant and other accompanied witnesses; visited the spot and prepared spot map Ext. 8. The Investigating Officer seized two numbers of stones with blood stains, sample earth and blood stained earth in presence of witnesses and prepared its seizure list vide Ext. 5. PW-8 engineered the investigation; examined the complainant and other accompanied witnesses; visited the spot and prepared spot map Ext. 8. The Investigating Officer seized two numbers of stones with blood stains, sample earth and blood stained earth in presence of witnesses and prepared its seizure list vide Ext. 5. Blood stained earth and sample earth from the house of the deceased were also seized vide Ext. 4. Inquest over the cadaver of the deceased was performed and inquest memo vide Ext. 2 was slated down in presence of the witnesses. The dead body was dispatched to District Headquarters Hospital, Keonjhar fro postmortem examination through escort Constable-630, P. Sethy along with command certificate Ext. 9. Dead body Challan is Ext. 10. Other witnesses were examined by the Investigating Officer. On 02.05.2004 at 3.45 PM, the appellant-accused was arrested from the village. His wearing apparels were seized vide seizure list Ext. 11. MO-III is the shirt and MO-IV is the pant of the appellant. The appellant was dispatched for medical examination from the Police Station vide requisition Ext. 12. Nail clippings and blood samples of the accused –appellant were requested to be taken and the responsibility was thrust upon escort Constable No. 552 D.K. Jena for getting the accused medically examined. Ext. 13 is the command certificate issued to said Constable D.K. Jena. In response to the requisition by the Investigating Officer, Dr. P.K. Jena, Medical Officer, C.H.C. Banspal, who has not been examined in the trial by the prosecution, submitted physical examination report of the accused-appellant, wherein he has recorded that there was no external injuries only except multiple, small burns which maybe caused due to dry heat. Dr. P.K. Jena, with whose handwritings and signature the Investigating Officer was acquainted submitted his report vide Ext. 14 and 14/1 respectively. On the same day at 4.30 PM, nail clippings and sample blood of the accused were collected by the Investigating Officer vide seizure list Ext. 3. Formal FIR was registered under Section 302 IPC vide Ext. ¼. On the following day, i.e., 03.05.2004 at 6.00 AM, the accused was forwarded to the Court. Wearing apparels of the deceased-Karmi Naik, on production by the escort Constable-630 P. Sethy at 11.30 AM, which included one Saree (MO-V), one Shawl (MO-VI) and a Bed-sheet (MO-VIII), were seized vide Ext. 15. ¼. On the following day, i.e., 03.05.2004 at 6.00 AM, the accused was forwarded to the Court. Wearing apparels of the deceased-Karmi Naik, on production by the escort Constable-630 P. Sethy at 11.30 AM, which included one Saree (MO-V), one Shawl (MO-VI) and a Bed-sheet (MO-VIII), were seized vide Ext. 15. On 06.05.2004, a prayer was made to SDJM, Keonjhar for recording of statement of Smt. Gura Naik @ Dura Naik, the mother of the accused under Section 164 Cr.P.C. vide Ext. 16 and Ext. 17 is her statement. On 20.05.2004, a query was made to Dr. G.B. Mishra concerning MO-I and MO-II as to be the weapon of assault vide Ext. 7/1. On 05.08.2004, the learned SDJM was moved for sending the seized materials to S.F.S.L., Rasulgarh, Bhubaneswar for chemical examination vide Ext. 18. Ext. 19 is the forwarding report by the Investigating Officer and Ext. 20 is the chemical examination report. After wrapping up the investigation, the Investigating Officer PW-8 submitted charge sheet against accused- appellant(Kathu Naik) under Section 302 IPC. 3. On the strength of charge sheet submitted, as aforesaid, G.R. Case NO. 394 of 2004 was registered before the Committal Court Magistrate, who committed the case to the Sessions Court for trial, where it was registered as ST No. 134/1 of 2004/05, State Versus Kathu Naik. 4. Learned trial Court charged the appellant for commission of offence punishable under Section 302 IPC on 11th January, 2005. Since the appellant pleaded not guilty and claimed to be tried for which reason his prosecution commenced, during course of which, prosecution examined in all 8 witnesses including the informant-Duan Pradhan PW-1 and the Investigating Officer, Suresh Kumar Sandha PW-8. 5. Learned trial Judge found the case of the prosecution established to its hilt for the charge framed against the appellant and therefore, convicted him as aforesaid and opined on the question of sentence slated in the opening paragraph of the judgment. Hence, this appeal. 6. We have heard Mrs. Susma Rani Sahoo, learned counsel for the appellant and Mr. J.Katikia, learned Additional Government Advocate for and against in this appeal and have critically scanned the trial Court record. 7. Hence, this appeal. 6. We have heard Mrs. Susma Rani Sahoo, learned counsel for the appellant and Mr. J.Katikia, learned Additional Government Advocate for and against in this appeal and have critically scanned the trial Court record. 7. The short question which has been urged before us is that, even according to the prosecution, incident was preceeded by the deceased calling the appellant as ‘Bula Kukura’ and being rankled by the said abusive temerity that the appellant had picked up stones and assaulted the deceased due to which she lost her life. It is further contended that in any view of the matter, there was no intention to commit murder of the deceased. The incident occurred with premeditation all of a sudden at the midnight hour of the night. Therefore, no offence punishable under Section 302 of IPC is made out, and at the worst case, the appellant can be held to be guilty only under Section 304 Part-I, IPC. 8. In support of the submission, appellant’s learned counsel invited our attention to paragraph-1 of the deposition of PW-1, wherein, it is stated as under:- “We enquired from the accused about the incident who stated before us that as he was rebuked by the deceased as ‘Bula Kukura’ he committed her murder out of anger.” The aforesaid statement by the informant, which was in the nature of his confession, although cannot be doubted, but does not make out a case under Section 302 IPC at all. The incident occurred at about midnight. The medical report of the deceased although corroborates the allegation that the deceased was assaulted with the stones, but it does not indicate about the intention to commit murder. Autopsy was performed on the cadaver of the deceased on 02.05.2004 by Dr. B.B. Mishra PW-7, as LTR and Medical Officer at District Headquarters Hospital, Keonjhar at 4.45 PM. The doctor noted that the deceased was average body built, rigor mortis was present all over her body and her Saree was stained with blood and different injuries were noted by the doctor in the postmortem examination report of the deceased, which is Ext. 6, which are as follows:- “i. Bruise of size 4x 2.5 cm over upper and lower eye-lid of right eye, ii. Laceration of size 5 x 2x 1 cm over left side of occipital region of scalp; iii. 6, which are as follows:- “i. Bruise of size 4x 2.5 cm over upper and lower eye-lid of right eye, ii. Laceration of size 5 x 2x 1 cm over left side of occipital region of scalp; iii. Laceration of size 8 x 1x 1 cm over the left temporal and frontal region of scalp; iv. Bruise with the size of 4 x 3 cm over right cheek.” 9. Internal disSection of the corpse revealed fracture over left occipital bone, over the left temporal bone, over the left frontal bone; and all these fractures being continuous corresponding to external injury No. (ii) and (iii) were sufficient to cause death. All other organs were intact which was oedematol and congested except the brain. Left temporal and occipital lobes were contused and compressed by a haematoma of weight of 250 grams. All the injuries were ante mortem in nature and external injury Nos. (ii) and (iii) were sufficient to cause death in ordinary course of nature. Cause of death was due to brain oedema and brain injury. Time since death was, 12 to 24 hours. When we vetted through the injuries, we find that the injury NO. (ii) was a laceration over left side of occipital region of scalp and so was injury No. (iii). The injury No. (i) was a bruise over upper and lower eyelid of right eye. 10. In view of the aforesaid, by no stretch of imagination, it cannot be said that the appellant possessed fatal intent to use excessive force by crushing the head of the deceased with a stone so as to kill her and consequently appellant cannot imputed with positive intention to commit murder of the deceased, however, it was within his knowledge that in the event of assault by a stone, the deceased may lose her life. In such view, without adverting further in the matter, we find that the conviction of the appellant under Section 302 IPC and the proposed sentence of life imprisonment both are unsustainable in law. The appellant could have been convicted only under Section 304 Part-I IPC. 11. We, therefore, alter the conviction of the appellant from Section 302 IPC to 304 Part-I IPC. The appellant could have been convicted only under Section 304 Part-I IPC. 11. We, therefore, alter the conviction of the appellant from Section 302 IPC to 304 Part-I IPC. Since the appellant has already been incarcerated in jail custody for lat 12 years therefore, while correcting the mistake of the learned trial Judge we hereby sentence him to the period of imprisonment already undergone by him, which is 12 years. Since the appellant is in jail custody, he is directed to be released from jail forthwith unless his incarceration is required in connection with any other crime. 12. The appeal is partly allowed as above with the modification of conviction and sentence as above. Appeal partly allowed.