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2018 DIGILAW 471 (ORI)

Bhikari Naik v. State of Odisha

2018-04-25

K.R.MOHAPATRA, S.PANDA

body2018
JUDGMENT S. PANDA, J. - This appeal has been filed by the appellants challenging the judgment dated 16.12.1998 passed by the learned Sessions Judge, Keonjhar in S.T. Case No.143 of 1994 convicting the appellants under Sections 302/34 I.P.C. and sentencing them to undergo imprisonment for life. 2. The case of the prosecution is that on 18.07.1994 in the early morning Bishnu Naik – P.W. 1 (informant) while returning after attending the call of nature from the field, heard shouting of the villagers that Kurubali, the daughter of Mohan Naik has been murdered over the land of one Draupadi Nayak. Then he rushed to the spot and found that Kurubali was lying dead over that land with bleeding injury on her head, back of neck, left chest and hands. There were profuse bleeding from the injuries and nearby one bloodstained knife was lying. At a close distance from the dead body one red Saya, Blouse, one water pot, one earthen pot, one broken earthen pot were lying and patches of blood were also found there. Pramila-P.W. 3, Kusei Naik-P.W.4, Dhara Naik, Hari Naik, who were at the spot informed him that at about 6.00 A.M. appellant No.1- Bhikari Naik assaulted the deceased with a spade and appellant No.2-Rankaratan Naik assaulted with a knife and ran away. P.W. 1 rushed to the Village Chaukidar to inform him about the incident. Thereafter he came to Patna Police Station along with the Chaukidar and lodged an oral report, which was reduced to writing and was treated as First Information Report by the A.S.I. at 9.00 A.M. In the said report it was stated that there was land dispute between Mohan Naik, the father of Kurubali and the accused persons since one year and they had ill feeling. On the basis of the aforesaid First Information Report, Patna P.S. Case No.45 of 1994 was registered. The dead body was sent for post mortem examination and the weapon of offences was seized. On completion of investigation and on receipt of the post mortem report charge sheet was submitted against both the appellants under Sections 302/34 of I.P.C. 3. The prosecution in order to bring home the charges, during trial examined as many as ten witnesses and exhibited several documents, which were marked as Exts. 1 to 21. The prosecution also proved two material objects i.e. Spade-M.O.I. and Knife-M.O.II. The prosecution in order to bring home the charges, during trial examined as many as ten witnesses and exhibited several documents, which were marked as Exts. 1 to 21. The prosecution also proved two material objects i.e. Spade-M.O.I. and Knife-M.O.II. Out of the witnesses examined by the prosecution P.W. 1 is the informant. P.W. 2 is the Grama Rakhi. P.W. 3 is the friend of the deceased. P.W. 4 is related to deceased and has claimed to be an eyewitness to the occurrence. P.W. 5 is the stepmother of the deceased and has claimed to be the post occurrence witness. P.W. 6 is the witness to the inquest. P.W. 7 is the father of the deceased. P.W. 8 is the Doctor, who had conducted the postmortem examination. P.W. 9 is the A.S.I. of Police before whom the informant has orally reported the incident, which was reduced to writing and registered as Patna P.S. Case No.45 of 1994 and investigation of the case was taken up at 9.00 A.M. On the same day, he has also recorded the statement of P.W. 5, Matia Naik and Mahura Naik. However, Matia and Mahura were not examined as charge sheet witnesses. P.W. 10 is the Investigating Officer. 4. The appellants defence plea was one of complete denial. It was pleaded by appellant No.1-Bhikari Naik that there was land dispute amongst them and that a proceeding under Section 107 of Cr.P.C. was pending. However, he has denied about the occurrence. It was also pleaded by him that on the date of occurrence Pitambar, Hrushi and Chandan Naik set fire to his house for which his daughter-in-law and grandson were burnt and died. He further pleaded that his daughter Suryamani was also assaulted by Hrushi Naik while she was escaping from the house. Appellant No.2-Rankaratan Naik has taken the plea of alibi. The appellants neither examined any witnesses nor exhibited any document. 5. The learned Sessions Judge after threadbare discussion of the materials available on record, convicted the appellants for commission of the offences punishable under Section 302 read with Section 34 I.P.C. and sentenced them to undergo imprisonment for life. 6. Learned Counsel appearing for the appellants submits that the prosecution has mainly relied on the evidence of P.Ws. 5. The learned Sessions Judge after threadbare discussion of the materials available on record, convicted the appellants for commission of the offences punishable under Section 302 read with Section 34 I.P.C. and sentenced them to undergo imprisonment for life. 6. Learned Counsel appearing for the appellants submits that the prosecution has mainly relied on the evidence of P.Ws. 3 and 4, who claimed to be the eyewitnesses however, their evidence suffers from serious infirmity and material contradiction as such they were not eyewitnesses to the occurrence. He further submitted that there was land dispute between the parties and on the date of occurrence, the relatives of the deceased set fire to the house of the appellants for which the wife and son of appellant No.2 were burnt and died. On the basis of such allegation Patna P.S. Case No.46 of 1994 was registered. He also submitted that the trial court should have scrutinized the evidence of P.Ws. 3 and 4 with cautious and in absence of such independent witness and corroboration, the prosecution case should not have been accepted. Hence, the impugned judgment is not sustainable in law and need to be set aside. 7. Learned Addl. Government Advocate while supporting the impugned judgment passed by the trial court submits that there is ample evidence both oral and documentary to prove the motive behind the murder of the deceased by the appellants. The prosecution has proved that the appellants have intentionally committed murder of the deceased. He further submits that the charges framed against the appellants are well established by the prosecution from the evidence on record. As such the trial court rightly convicted them under Sections 302/34 of I.P.C. Hence, the impugned judgment need not be interfered with. 8. Considering the rival submissions of the parties and after going through the L.C.R. it reveals that prosecution has examined P.W. 3 as an eyewitness. She had deposed that appellant No.2 suddenly came with a knife and stabbed on the back of the deceased and then appellant No.1 gave stroke with the blunt side of Spade on the head of the deceased. The deceased started running but fell on the way and again both the appellants assaulted her. In her cross-examination she has stated that she saw the incident from a distance of about 20 cubits and from that place she came to the deceased and found that she was dead. The deceased started running but fell on the way and again both the appellants assaulted her. In her cross-examination she has stated that she saw the incident from a distance of about 20 cubits and from that place she came to the deceased and found that she was dead. She has further stated that appellant No.2 gave three to four blows with knife on the neck, throat and belly of the deceased and appellant no.1 gave 10 to 12 blows to the deceased with spade. The evidence of P.W. 3 regarding number of assault made by the assailants and the injury sustained by the deceased, it reveals from the post-mortem report that there was major difference regarding the injuries and number of assault made with knife and blunt side of the spade. In view of such discrepancy the evidence of P.W. 3 cannot be trust worthy. 9. P.W. 4 is also cited by the prosecution as an eyewitness to the occurrence. In her evidence she had deposed that on the date of occurrence she along with deceased and P.W. 3 had gone to fetch water from one Nala. They were returning with water. At that time she was in the front, deceased was in the middle and P.W. 3 was at the back. On hearing falling sound of the water pot, she turned back and found that appellant No.2 was stabbing and appellant No.1 was assaulting the deceased with the Spade. However, she has no stated before the Police regarding falling sound of water pot and she looked back and found the assailants of the deceased ran away. The said fact was confronted to the Investigating Officer-P.W. 10, who has produced the First Information Report and the Case Diary before the Court on 20.07.1994. 10. P.W. 5 who is stepmother of the deceased had deposed that hearing the shouts of P.W. 3 and P.W.4, she ran to the spot and found appellant No.2 was running towards the field and appellant No.1 was running with Spade. She also saw that the deceased was lying dead and a knife was lying near the dead body,. She was examined by P.W. 9, the A.S.I. of Police, who has registered the First Information Report and it was confronted to him that P.W. 5 has not stated before him that hearing shout of P.Ws. She also saw that the deceased was lying dead and a knife was lying near the dead body,. She was examined by P.W. 9, the A.S.I. of Police, who has registered the First Information Report and it was confronted to him that P.W. 5 has not stated before him that hearing shout of P.Ws. 3 and 4 she reached the spot and saw the assailants ran away towards their house with the weapon of offence. As such there was no corroboration of the fact regarding the assault made by the appellants on the deceased. P.W. 3 is the relative of the father of the deceased and P.W. 4 is the cousin of Pitambar, who is an accused in the counter cased bearing Patna P.S. Case No.46 of 1994. P.Ws. 3, 4 and 5 are silent about the counter case, which was occurred on the same day morning. Thus, it appears that prosecution has suppressed the genesis of the case. 11. P.W. 8 is the Doctor, who has conducted the post-mortem examination over the dead body of the deceased. He has stated that the deceased has received four injuries, which are sharp cutting injury and stab injury on the head and chest respectively. 12. P.W. 9, who is the A.S.I. of Police has stated that he has examined six persons after registration of the First Information Report. However, such persons were not cited as charge sheet witnesses. Neither he has examined the informant nor P.Ws. 3 and 4, who supposed to be the witnesses to the occurrence. In his cross-examination he was confronted that P.W. 5 did not state before him that hearing the shout of Pramila and Kusai she reached the spot and saw appellant No.1 was running towards his house with Spade and appellant No.2 running towards the field. 13. P.W. 10, who is the Investigating Officer, in cross-examination has stated that there is a case and counter case between the parties. He has further stated that Patna P.S. Case No.46 of 1994 was registered on the date of occurrence. The occurrence of that case took place after the occurrence of the present case. He has further stated that P.W. 4 has not stated before him that she looked back on hearing the falling sound of a water pot. It appears that the counter case bearing Patna P.S. Case No.46 of 1994 was registered by the same Investigating Officer. The occurrence of that case took place after the occurrence of the present case. He has further stated that P.W. 4 has not stated before him that she looked back on hearing the falling sound of a water pot. It appears that the counter case bearing Patna P.S. Case No.46 of 1994 was registered by the same Investigating Officer. However, he has not reflected about the same in the Case Diary of the present case. 14. In view of the vital discrepancy regarding the assault made by the appellants on the deceased and the spot map as reveals from the records, the place of occurrence and the evidence of the witnesses that after the assault the appellants ran away from the spot where the dead body was found is improbable. The prosecution has suppressed the fact regarding registration of the counter case on the same day and death of wife and son of appellant No.2 due to burn injuries. Taking into consideration all the above, this Court is of the opinion that the prosecution has not able to prove the charges beyond reasonable doubt. Hence the appellants cannot be found guilty of the charges under Sections 302/34 of I.P.C. Accordingly, this Court sets aside the impugned judgment of conviction and sentence passed by the learned Sessions Judge, Keonjhar in S.T. Case No.143 of 1994 and acquits the appellants from the charges. 15. The appellants who are on bail pursuant to order dated 21.4.2005, their bail bonds be cancelled and they be set at liberty forthwith in case their detention is not required in any other case. L.C.R. be sent forthwith. The Criminal Appeal is accordingly allowed. K.R. MOHAPATRA, J. I agree. Appeal allowed.