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2018 DIGILAW 762 (ORI)

Chinari Naik v. State of Odisha

2018-08-27

J.P.DAS, SANJU PANDA

body2018
JUDGMENT J.P. DAS, J. - The appellants stood convicted under Sections 302/323 read with Section 34 of the Indian Penal Code by the learned Sessions Judge, Phulbani in S.T. Case No. 38 of 1998 and have been sentenced to undergo life imprisonment for the offence under Section 302/34 of the I.P.C. and to undergo rigorous imprisonment for six months for the offence under Section 323/34 of the I.P.C. 2. The prosecution case is that on 01.01.1995 the informant along with his father and other villagers were having a feast in front of the church. At this time the appellant no.3- Humar Naik came there and challenged the victim Iswar Naik, the father of the informant, as to why his buffaloes damaged his paddy seedlings. The victim replied that he would look into the matter after the feast was over. Thereafter, all the accused persons came there and again challenged the victim which ensued hot exchange of words. At this time, the appellant No. 1 Chinari Naik instigated the other accused persons to assault the victim and the appellant no. 3 Humar Naik, who was holding a ltahi, dealt a blow on the head of the victim, as a result of which, he fell down on the ground. It is further alleged that all other accused persons thereafter assaulted the victim by means of fist blows and kicks. When the informant-son tried to intervene, the accused persons chased him to assault and threw stones at him which caused some injuries on his person. The informant-son came back to the spot after some time and found his father laying on the ground with severe bleeding injuries. He carried him to the Daringbadi Government Hospital with the help of other villagers but on the way the victim expired. Thereafter, the informant lodged the F.I.R. at Daringbadi P.S. pursuant to which the concerned P.S. Case No. 1(1) of 1995 was registered under Sections 337/302/34 of the I.P.C. and the investigation was taken up. 3. In course of investigation, the inquest and post mortem were conducted on the dead body. The informant injured was also medically examined. Thereafter, the informant lodged the F.I.R. at Daringbadi P.S. pursuant to which the concerned P.S. Case No. 1(1) of 1995 was registered under Sections 337/302/34 of the I.P.C. and the investigation was taken up. 3. In course of investigation, the inquest and post mortem were conducted on the dead body. The informant injured was also medically examined. The wearing apparels were seized, one lathi, the alleged weapon of offence, was seized from the house of the accused Humar Naik, the medical opinion was obtained and after completion of investigation, charge sheet was submitted against all the six accused persons under Sections 302/307 read with Section 34 of the Indian Penal Code. 4. The accused persons faced the trial with a plea of complete denial advancing a further plea through defence evidence that the accused persons as well as the informant group were drunk at the time of feast and there was some disturbance due to influence of liquor and the victim sustained injury by falling down on the ground. 5. Seven witnesses were examined on behalf of the prosecution in support of its case as against one in defence on behalf of the accused persons. 6. The P.W. 1 was the informant-son of the deceased, P.Ws. 2 and 3 were two occurrence witnesses, P.W. 4 was a seizure witness. P.W. 5 was the doctor who conducted the post-mortem examination as well as examined the injured-informant, P.W. 6 was a police constable assisting in investigation and P.W. 7 was the Investigating Officer. The D.W. 1 was a co-villager. 7. The learned trial Court on analyzing the material evidence placed before it, found and held all the accused persons guilty of the offences punishable under Sections 302/323/34 of the I.P.C and convicted them thereunder. The offence under Section 307/34 of the I.P.C. was found not have been made out against the accused persons. 8. It was submitted by learned counsel for the appellants that the learned trial Court seriously erred in law in reaching the conclusion of guilt against the accused appellants ignoring major contradictions in the statements of the witnesses as well as their interestedness for the prosecution case for being relations of the informant and the victim. 8. It was submitted by learned counsel for the appellants that the learned trial Court seriously erred in law in reaching the conclusion of guilt against the accused appellants ignoring major contradictions in the statements of the witnesses as well as their interestedness for the prosecution case for being relations of the informant and the victim. It was also submitted that as per the defence case, there was a disturbance between the groups under the influence of liquor and hence, the accused-appellants could not have any motive to commit the murder of the victim so as to be liable under Section 302 of the I.P.C. Learned Counsel for the appellants placed the depositions of the witnesses and pointed out the contradictions in their statements which were confronted to the Investigating Officer. It was also submitted on behalf of the appellants that there was some earlier dispute between the parties and hence, the appellants have been falsely implicated in the case. 9. Per contra, it was submitted by the learned counsel appearing for the State that the contradictions as submitted were minor in nature without affecting the veracity of the prosecution witnesses all of whom have given consistent statements about the alleged occurrence and the acts of the appellants in assaulting the victim as well as his informant son. It was also submitted on behalf of the State that the victim was a witness for the P.W.4 a case against the accused-appellants for which the accused- appellants bore grudge against the victim which establish their motive in assaulting and committing murder of the victim. 10. We have carefully gone through the detailed evidence led on behalf of the prosecution before the learned trial Court. The P.W.1, the informant as well as P.Ws.2 and 3, two other witnesses to the occurrence have categorically stated that all the accused persons came there and challenged the victim about the damage of crops by his buffaloes to which the victim replied that he would look into that after the feast was over. At this, the accused Humar (appellant no.3) dealt a lathi blow on the head of the victim from his backside as a result of which, he fell down on the ground. They also stated that thereafter the other accused persons assaulted the victim by means of fist blows and kicks. At this, the accused Humar (appellant no.3) dealt a lathi blow on the head of the victim from his backside as a result of which, he fell down on the ground. They also stated that thereafter the other accused persons assaulted the victim by means of fist blows and kicks. In respective cross-examination at length of the three witnesses, nothing could be brought out on behalf of the defence so as to discredit their veracity about the alleged occurrence. All of them have categorically stated that the accused-appellant, Humar Naik dealt a lathi blow on the backside of the victim as a result of which, he fell down sustaining bleeding injury. They have denied the suggestion that due to long standing dispute, there was a disturbance between the persons under the influence of liquor and both the parties assaulted each other. The contradictions were tried to be pointed out in the evidence of said three witnesses vis-à-vis their statements given before the Police in course of investigation were relating to the occurrence as to who instigated the accused persons and who had given a lathi to another co-accused at the time of occurrence. We are in agreement with the learned counsel for the State that the discrepancies as pointed out were minor in nature and no way affected the truthfulness of the prosecution case and its witnesses. 11. It was strenuously submitted on behalf of the appellants that only one lathi blow was dealt on the head of the victim by the appellant no. 3 and other accused-appellants are alleged to have dealt fist blows and kicks. In this respect it was further submitted that as per the evidence of the doctor who conducted post-mortem examination, all the injuries were found on the temporal region of the victim and there was no corresponding injuries to substantiate the allegations that the other co-accused persons dealt fist blows and kicks to the victim sharing an intention for committing murder of the victim. As per the opinion of the doctor, the injuries as found on the temporal region of the victim were ante-mortem and homicidal in nature. The cause of death was due to haemorrhage and shocks. The alleged weapon of offence, lathi, was also recovered on production by the appellant no.3 from inside his house. As per the opinion of the doctor, the injuries as found on the temporal region of the victim were ante-mortem and homicidal in nature. The cause of death was due to haemorrhage and shocks. The alleged weapon of offence, lathi, was also recovered on production by the appellant no.3 from inside his house. The learned trial Court disbelieving the evidence of the prosecution so far as the alleged offence under Section 307 of the I.P.C. is concerned has convicted the accused persons under Sections 323/34 of the I.P.C., of course, so far as the injured-informant was concerned. The only witness examined as D.W.1, stated that there was a disturbance between the members who attended the feast, due to influence of liquor the deceased fell down on the ground. But, peculiarly in his cross-examination, he admitted that the deceased had sustained injuries being assaulted. This evidence of D.W.1 cannot be said to have washed away the evidence of P.Ws. 1, 2 and 3 who have consistently and categorically stated about the alleged incident and assault. 12. Taking the entire evidence of prosecution into consideration as stated above, we are of the considered view that all the appellants excepting the appellants No.3, cannot be said to have shared the intention of committing the murder of the victim. But, the evidence is consistent so far as the appellant no. 3 is concerned, that he dealt the fatal blow on the head of the victim which resulted in his death. The injures as found out on the temporal region of the victim, were serious in nature and it cannot be said that the appellant no. 3 Humar Naik did not have any intention of committing murder of the victim. So far as other appellants are concerned, they had assaulted the victims as well as his informant son causing some injuries and have been convicted under Sections 323/34 of the I.P.C. 13. Accordingly, we hold the accused-appellant no.3 Humar Niak guilty under Sections 302/323/34 of the I.P.C. and confirm his conviction and sentences as have been awarded by the learned trial Court. So far as the appellant Nos. 1,2,5 and 6 are concerned, their conviction under Section 302/34 of the I.P.C. is set-aside and their conviction and sentence under Section 323/34 of the I.P.C. is confirmed. 14. Since it was submitted that the appellant nos. So far as the appellant Nos. 1,2,5 and 6 are concerned, their conviction under Section 302/34 of the I.P.C. is set-aside and their conviction and sentence under Section 323/34 of the I.P.C. is confirmed. 14. Since it was submitted that the appellant nos. 1,2,4,5 and 6 had remained in custody for more than a year, they are set at liberty since the sentence awarded by the learned trial Court against them was only for six months. So far as the accused-appellant No. 3 Humar Naik is concerned, he is directed to surrender within a fortnight hence before the learned trial Court to undergo the remaining period of sentences and on his failure to surrender, learned trial Court shall proceed according to law to take him to judicial custody. Ordered accordingly.