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2017 DIGILAW 313 (ORI)

Prafulla Naik v. State of Orissa

2017-03-22

S.K.SAHOO

body2017
JUDGMENT : S.K. Sahoo, J. The petitioner Prafulla Naik faced trial in the Court of learned Chief Judicial Magistrate -cum-Assistant Sessions Judge, Angul in S.T. Case No. 57-A of 1997 for offence punishable under section 304 of the Indian Penal Code on the accusation that on 14.02.1996 at about 9.00 a.m. at village Mukundapur, he caused death of Duryodhan Naik (hereafter ‘the deceased’) with the intention of causing such bodily injury as was likely to cause death and thereby committed an offence of culpable homicide not amounting to murder. The learned Trial Court found the petitioner not guilty under section 304 of the Indian Penal Code but convicted him under section 307 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.200/- (rupees two hundred), in default of payment of fine, to undergo further rigorous imprisonment for one month. The petitioner preferred an appeal in the Court of Session which was heard by the learned Additional Sessions Judge, Angul in Criminal Appeal No.42 of 1998 who has been pleased to uphold the impugned judgment and order of conviction passed by the learned Trial Court and dismissed the appeal, hence the revision. 2. The prosecution case as per the first information report lodged by one Palau Naik (P.W.4) is that on 14/15.02.1996 during the night while he was going to sleep after taking his food with his family members, his wife Sambari Naik (P.W.6) came and told that the deceased had not yet returned back. Since the informant was tired, he asked P.W.6 to go inside the village to search for the deceased. Accordingly, P.W.6 who is the mother of the deceased went inside the village holding one lantern and near the house of Dhruba Naik, she found that the petitioner and the deceased were quarrelling with each other and all on sudden, the petitioner threatened the deceased to kill and went inside the house, brought one tangia and dealt a blow on the head of the deceased as a result of which the deceased fell down on the ground. Thereafter the petitioner dealt repeated blows on different parts of the body of the deceased. Hearing hulla of P.W.6, other co-villagers arrived at the spot. Thereafter the petitioner dealt repeated blows on different parts of the body of the deceased. Hearing hulla of P.W.6, other co-villagers arrived at the spot. When the co-villagers tried to rescue the deceased, the petitioner threatened them with dire consequence and fled away towards the jungle holding tangia. After the petitioner left the spot, the deceased was shifted to the hospital for his treatment. On the basis of such first information report, Angul P.S. Case No. 13 of 1996 was registered on 15.02.1996 under section 307 of the Indian Penal Code. During course of investigation, the I.O. visited the spot, examined the witnesses, seized the weapon of offence. The deceased was sent for medical examination and it appears that the deceased died on 05.07.1996. After the death of the deceased, post-mortem was conducted at District Headquarters Hospital, Angul and on completion of investigation, charge sheet was submitted on 09.03.1997 under section 304 of the Indian Penal Code against the petitioner. 3. The defence plea is one of denial. 4. In order to prove its case, the prosecution examined nine witnesses. P.W.1, P.W.2, P.W.3 and P.W.5 did not support the prosecution case for which they were declared hostile. P.W.4 Palau Naik is the informant in the case and he is also a witness to the inquest. P.W.6 Sambari Naik is the mother of the deceased and she is an eye witness to the occurrence. P.W.7 Ghanashyam Naik is a witness to the seizure of bed head ticket of the deceased. P.W.8 Dr. Rakesh Kumar Sahoo was the Medical Officer attached to the District Headquarters Hospital, Angul who examined the deceased on 15.02.1996 and proved his report vide Ext.5. He also examined the weapon of offence on police requisition and gave his report vide Ext.6. He also conducted post-mortem examination over the dead body of the deceased on 06.07.1996 and opined the cause of death of the deceased due to severe anemia with chronic illness with bedsore due to septicemia and shock. He proved the post mortem report Ext.7. He further opined that the death of the deceased might be due to chronic illness and malnutrition which was sequel to the injuries but not direct to the injuries. He proved the report Ext.8. He proved the post mortem report Ext.7. He further opined that the death of the deceased might be due to chronic illness and malnutrition which was sequel to the injuries but not direct to the injuries. He proved the report Ext.8. P.W.9 Tapan Kumar Patnaik who was the officer in charge of Angul Police Station took up investigation of the case from S.I. Chaitanya Pradhan and submitted charge sheet in the case. The prosecution exhibited nine documents. Ext.1 is the seizure list, Ext.2 is the first information report, Ext.3 is the inquest report, Ext.4 is the seizure list, Ext.5 is the injury report, Ext.6 is the report of P.W.8, Ext.7 is the post mortem report, Ext.8 is the query report and Ext.9 is the zimanama. 5. The learned Trial Court after analyzing the evidence on record has been pleased to hold that the evidence of the eye witness i.e. P.W.6 gets corroboration from the post occurrence witnesses i.e. P.Ws.3 and 4. It has been further held that in view of the medical evidence, there is no reason to disbelieve the oral evidence of the witnesses. The learned Trial Court further held that the non-examination of the Investigating Officer is not fatal to the prosecution case. It has been further held that the occurrence took place on 14.02.1996 and Ext.4 indicates that the injured was discharged from the hospital on 19.03.1996 and the deceased died on 05.07.1996 i.e. about four months after his discharge from the hospital and there is no direct evidence to show that the death of the deceased was the outcome of the injuries caused to him on the date of occurrence and the oral evidence is silent on this aspect. The learned Trial Court further held that there is no evidence on record to show if the victim after discharge from the hospital was bed ridden, as a result of which he succumbed to the bedsore and anemia rather the doctor stated that the death was not direct to the injuries examined by him and death may be due to malnutrition. Accordingly, the learned Trial Court held that there is no evidence to connect that the deceased died out of the injuries caused to him by the petitioner on the date of occurrence and accordingly, held that a case under section 304 of the Indian Penal Code was bound to fail. Accordingly, the learned Trial Court held that there is no evidence to connect that the deceased died out of the injuries caused to him by the petitioner on the date of occurrence and accordingly, held that a case under section 304 of the Indian Penal Code was bound to fail. However, relying upon the evidence of the eye witness as well as the doctor, the learned Trial Court held that the petitioner attempted to kill the injured and dealt successive axe blows even after the deceased fell down on the ground after receiving the first axe blow and therefore, convicted the petitioner under section 307 of the Indian Penal Code. The learned Appellate Court has been pleased to hold that the unchallenged version of P.W.4 lends full corroboration to the evidence of P.W.6, the eye witness to the occurrence. The medical evidence of P.W.8 that he examined the injured and noticed four incised wounds and one abrasion on the body of deceased also supports the oral evidence and the evidence of P.Ws. 3, 4, 6 and 8 taken together proves beyond doubt that it is the petitioner who caused injury on the deceased with an axe. Accordingly, the learned Appellate Court upheld the impugned judgment and order of conviction passed by the learned Trial Court and dismissed the appeal. 6. None appears on behalf of the petitioner. Since the revision petition cannot be dismissed for default and has to be disposed of on merit, even if the petitioner or his counsel is absent by examining the correctness, legality or propriety of the order of the inferior Criminal Court, with the assistance of Mr. Deepak Kumar, learned Addl. Standing Counsel, I went through the case records. The learned counsel for the State placed the impugned judgments and the evidence of the witnesses. I also perused the grounds taken in the revision petition to challenge the impugned judgments. 7. On going through the evidence of the prosecution witnesses, it appears that the occurrence in question took place on 14.02.1996 at about 9.00 p.m. The F.I.R. was lodged on 15.02.1996 and in the first information report, P.W.4 has indicated as to what his wife (P.W.6) had seen at the spot. In the first information report, it is specifically mentioned that it is the petitioner who dealt repeated blows by means of a Tangia on the deceased. In the first information report, it is specifically mentioned that it is the petitioner who dealt repeated blows by means of a Tangia on the deceased. The prosecution version as per the F.I.R. is corroborated by the evidence of P.W.6, the mother of the deceased who has stated that on the night of occurrence at about 9.00 p.m. when the deceased did not return home, as per the direction of her husband, she went to call her son who was working in a brick kiln in village Sakasingha holding a lantern in her hand. She further stated that she heard shout in front of the house of co-villager Dhruba and saw the petitioner quarrelling with the deceased and all on a sudden, the petitioner went inside his house brought one axe and dealt a blow with an axe to the right side head of her son for which he fell down on the ground. Then the petitioner dealt repeated blows by means of axe to the left side scalp (back side) of the deceased. When she raised hulla, the other co-villagers including her husband came to the spot and the petitioner was standing there with a tangia. When the witnesses asked the petitioner, he threatened them to kill and thereafter, the petitioner fled away from the spot towards the forest side. The evidence of the eye witness (P.W.6) has remained unshaken in the cross-examination and nothing has been brought out to discard her evidence. The evidence of P.W.6 is corroborated by P.W.4, who stated that when he went to the spot hearing hullah, he found the deceased was lying on the ground sustaining bleeding injuries on his person i.e. head, left calf and backside waist. The doctor (P.W.8) who examined the deceased in an injured condition on 15.02.1996 at District Headquarters Hospital, Angul noticed the following injuries:- (i) Incised wound 2” x 1/5” x bone deep, on vertex, avulsed, grievous, by used by sharp cutting weapon. (ii) Abrasion 3” x 1/6” more deep at upper end on left side of abdomen, simple in nature and caused by hard and blunt weapon. (iii) Incised wound on left loin extending passed midline, 5” x 2” x 2” L2 vertebra, spine fractured, grievous in nature, caused by sharp cutting weapon. (iv) Incised wound 3” x 1” x 1” on left calf, upper part, post lateral, simple and caused by hard and blunt weapon. (iii) Incised wound on left loin extending passed midline, 5” x 2” x 2” L2 vertebra, spine fractured, grievous in nature, caused by sharp cutting weapon. (iv) Incised wound 3” x 1” x 1” on left calf, upper part, post lateral, simple and caused by hard and blunt weapon. (v) Incised wound 1” x ½” x ½” on left gluteal region, lateral, simple and caused by sharp cutting weapon. The doctor has specifically stated that the injuries are possible by axe (M.O.I) and injury no.3 can cause death of a person in ordinary course of nature. Thus the ocular testimony adduced by P.W.6 gets corroboration from the medical evidence given by P.W.8. Out of five injuries sustained by the deceased, four are incised wounds and out of the four, the doctor has opined that the injury nos. (i) and (iii) are grievous in nature. It is not disputed that the deceased died after about four months of the assault and he was discharged from the hospital on 19.03.1996. However, the manner in which the petitioner assaulted the deceased by axe on the vital parts of the body, I am of the view that the learned Trial Court has rightly found the petitioner guilty under section 307 of the Indian Penal Code. The deceased was the only son of P.W.4 and P.W.6, who lost his life at an early age due to the unfortunate incident. The sentence which has been imposed by the learned Trial Court cannot be said to be excessive under any circumstances and therefore, I find no infirmity and illegality with the impugned judgment and order passed by the learned Courts below. Accordingly, the judgment and order of conviction of the petitioner under section 307 of the Indian Penal Code and the sentence of rigorous imprisonment for five years and for payment of fine of Rs.200/- (rupees two hundred), in default of payment of fine, to undergo further R.I. for a period of one month as awarded by the learned Trial Court stands confirmed. In the result, the revision petition being devoid of merit stands dismissed.