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2019 DIGILAW 479 (ORI)

Siraji Naik @ Dhudi v. State Of Odisha

2019-07-24

A.K.MISHRA, S.K.MISHRA

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JUDGMENT : S.K. MISHRA, J. In this appeal the convict Siraji Naik @ Dhudi assails his conviction U/s.302 of the Indian Penal Code, 1860 (herein after referred as “I.P.C.” for brevity) and order of sentence of imprisonment for life in S.T. Case No.213/10 of 1996-99 of the Court of learned Addl. Sessions Judge, Jharsuguda on 24th July, 1999. 2. Shorn of all unnecessary details, the case of the prosecution is that on 29.11.1995 at about 9 A.M. the informant Sarat Kumar Naik (P.W.1) and his father, deceased Narottam Naik, after reaping paddy, were collecting paddy sheaves from their paddy field at Bhedakhandimundatala. At that time Jibardhan Majhi, accused, since acquitted, came over the ridge of the land of Narottam Naik, the deceased. The deceased asked the said Jibardhan as to why he came through his ridge. At this Jibardhan started abusing the deceased and called for his master, convict Siraji Naik. On hearing the call of Jibardhan, it is alleged that convict Siraji Naik, Dasarath Naik, Ashok Naik and Anand Naik rushed to the spot for assaulting the deceased. It is further alleged that the convict Siraji snatched away the axe from the hand of Jibardhan Majhi and dealt axe blow from the front side to the neck of the deceased Narottam Naik for which the deceased fell down and after that the convict Siraji dealt a blow with a sickle for which a portion of the sickle got broken and stuck to the left arm pit of the deceased. Thereafter Dasarath Naik, Ashok Naik, Anand Naik and Jibardhan Majhi assaulted the deceased. Seeing this P.W.-1, the informant proceeded to rescue his father. At that time Dasarath Naik and Anand Naik caught hold of him. Seeing Narottam Naik dead, all the accused persons left the spot. It is further alleged that Dasarath Naik and convict Siraji Naik ran away with the axe and the broken portion of the sickle. It is also the case of the prosecution that prior to the occurrence, the father of the informant had a case with convict Siraji Naik U/s.145 of the Code of Criminal Procedure (for brevity ‘the Code’) for lands and because of that convict Siraji Naik was bearing a grudge on the deceased. Information was lodged regarding the occurrence before the police officer attached to Baghdihi out post by P.W.1 on the date of occurrence, i.e. on 29.11.1995. Information was lodged regarding the occurrence before the police officer attached to Baghdihi out post by P.W.1 on the date of occurrence, i.e. on 29.11.1995. Police, on the receipt of said informant, registered the case and took up investigation. On completion of investigation the investigating officer submitted charge-sheet against four accused persons U/s.302/34 I.P.C. 3. The plea of the accused persons in this case is that of complete denial of the occurrence as alleged by the prosecution. It is their further case that they have been falsely implicated in this case. Further it is also decipherable from the examination of Jibardhan Majhi recorded U/s. 313 of the Code that while he was going to cut paddy from the land of convict Siraji Naik, on seeing him deceased Narottam Naik abused him and chased to assault him with an axe which he snatched away and thereafter the deceased Narottam Naik rushed at him with a sickle and to save him when he brandished the axe, it hit the body of deceased Narottam Naik. The further plea of Jibardhan Majhi is that the sickle fell from the hand of deceased Narottam Naik and Narottam Naik when fell down on the sickle, the sickle pierced to his body. 4. The prosecution, in order to bring home its case, examined four witnesses in all and amongst them P.W.1 is the solitary eye-witnesses who happens to be the informant of the case. P.W.2 is the post occurrence witness. P.W.3 is the doctor who conducted post mortem over the dead body of the deceased Narottam Naik on 30.11.1995. P.W.4 is the investigating officer who has conducted investigation of the case and the counter case and has submitted charge-sheet against the accused persons. 5. Learned Addl. Sessions Judge, relying upon the version of P.W.1, taking corroboration from the evidence of P.W.3 and other circumstances, came to the conclusion that the prosecution has proved its case beyond all reasonable doubt and thereafter proceeded to convict Siraji Naik @ Dhudi for the offence U/s.302 of I.P.C.. However, learned Addl. Sessions Judge came to the conclusion that prosecution has failed to prove the case against Ananda Naik, Ashok Naik, Dasarath Naik and Jibardhan Majhi and therefore acquitted them from the charge U/s.302/34 I.P.C. The conviction of appellant Siraji Naik is challenged in this case. 6. However, learned Addl. Sessions Judge came to the conclusion that prosecution has failed to prove the case against Ananda Naik, Ashok Naik, Dasarath Naik and Jibardhan Majhi and therefore acquitted them from the charge U/s.302/34 I.P.C. The conviction of appellant Siraji Naik is challenged in this case. 6. It is apparent from the record, especially from paragraph 22 of the cross-examination of P.W.4 that his investigation reveals that Satrughana Majhi, Kirtani Naik, Lokeswar Naik and Jogeswar Majhi are the eye witnesses of the occurrence in addition to P.W.1 but for the reasons best known to the prosecution, these witnesses have not been examined by it and they have been with-hold from the witness box leaving the case hanging on the evidence of P.W.1 only. Section 134 of the Indian Evidence Act provides that no particular number of witnesses shall in any case be required for the proof of any fact, which means that a solitary witness, if his evidence is acceptable, can also form the basis of conviction but in our opinion a criminal court, before placing reliance upon a solitary witness to record conviction for a criminal offence must test his evidence in the anvils of the objective circumstances of the case. It is also well settled that witnesses are generally categorized in three types, i.e. wholly reliable, wholly unreliable, neither wholly reliable nor wholly unreliable. When the case comes under first two categories, the court has no problem in appreciating the evidence. If the witness is held to be wholly reliable then the court will simply accept his evidence and proceed to record its findings. Similarly if it is held that a witness is wholly unreliable then also the court has no problem in coming to its conclusion which would be just and proper. But difficulty arises where the witness is neither wholly reliable nor wholly unreliable. In that case the court has to shift his evidence, find nuggets of truth or falsehood from his evidence and take a decision whether to record a conviction on his evidence of any criminal offence or not. In our considered opinion, P.W.1 is a witness who comes under 3rd category. He is neither wholly reliable nor wholly unreliable. So in this case his evidence is to be carefully examined. First it is to be seen that he is the informant of this case. In our considered opinion, P.W.1 is a witness who comes under 3rd category. He is neither wholly reliable nor wholly unreliable. So in this case his evidence is to be carefully examined. First it is to be seen that he is the informant of this case. In the FIR he has mentioned that Siraji Naik snatched away the axe from the hands of Jibardan Majhi and cut the neck of his father (MO BAPARA BEKARA SAMNAPATE HANIDELA), then his father fell down and he again assaulted by means of a sickle which broke and piece of the said sickle stuck to the left side arm pit of his father. From a close reading of these sentence keeping in view the other materials available in the F.I.R. itself, we are of the opinion that the informant has mentioned in the F.I.R. that the appellant gave one cut blow on the front side neck of the deceased. However, while was examined as a witness, in paragraph 2 of his examination-in-chief he has stated that Siraji snatched away the ‘Budia’ (small axe) from the hands of Jibardhan and gave blows by that axe on the neck of his father. Receiving the blows when his father fell down, accused Siraji assaulted by sickle near the arm pit of his father. A portion of the sickle pierced the body of his father. 7. The only objective circumstance appearing in this case against the appellant is the evidence of P.W.3, the doctor, namely Dr. Kishore Chandra Das who had conducted autopsy on the dead body of the deceased. He has stated on oath that at about 2 P.M. on 30.11.1995, he conducted autopsy over the dead body of the deceased and found the following injuries :- (i) Incised injury on the upper part of the neck just above the thyroid cartilage and below the mandible, extending from 1” below the right mastoid process to left mastoid process. Its length was 8” and breadth was 4” at the centre, gradually lessening to the periphery, up to 3”. The injury was extending up to the vertebral column cutting completely the larynx, esophagus muscle, arteries, veins, nerves and ligaments of the neck. (ii) Incised injury 3” x 1/4” x 1/6” situated ½” above the lower border of right side of mandible. The injury was extending up to the vertebral column cutting completely the larynx, esophagus muscle, arteries, veins, nerves and ligaments of the neck. (ii) Incised injury 3” x 1/4” x 1/6” situated ½” above the lower border of right side of mandible. (iii) Incised injury 3½” x 1½” x 3” just over the injury no.ii and below the right ear exposing the muscle of the right cheek and mandible bone. (iv) Three parallel abrasions, 2” x 1/4” x 1/6” situated on the left side of neck just lateral to the injury no.i. (v) Two horizontal incised injuries 4” x 1” and 3” x 1”, exposing the head of the right humorous bone. (vi) Incised injury 1¼” x 1” x 1/2” on the left side of chest half inch below the midpoint of the clavicle. (vii) One broken sickle was pierced into the left axilla. After the sickle was removed, the size of the sickle was found to be 8½”. Half of it was piercing into the body and 4” of the sickle was visible outside. The muscle in the axilla was torn and the pointed end of the sickle had torn the ligaments of the lower portion of the left shoulder joint. In the cross-examination, he has stated that if two persons struggled with each other to snatch away the axe, injury no.(i), found on the neck of the deceased, can be caused. He has further stated that barring injury no.(i), other injuries are not fatal. Thus, it appears that there are inherent contradictions between the statement of the informant which he has made in the F.I.R. and his statement made in the court. The contents of the F.I.R. are contradicted by the evidence of P.W.3 as P.W.3 has found as many as 5 injuries on the body of the deceased. It is worthwhile to mention here that the injury nos.(ii) and (iii) are incised injuries found on the right cheek and mandible of the deceased. The injury no.(iv) are three parallel abrasions on the left side neck of the deceased just nearer to the injury no.(i). There are also two horizontal incised injuries exposing the head of the right humorous bone. It is nobody’s case that the appellant dealt blows on the mandible or face of the deceased or on the humorous bone i.e. the right hand of the deceased. There are also two horizontal incised injuries exposing the head of the right humorous bone. It is nobody’s case that the appellant dealt blows on the mandible or face of the deceased or on the humorous bone i.e. the right hand of the deceased. The only blow that P.W.1 says is the blow given on his neck which is evident from the F.I.R. Moreover, in the examination-in-chief, he has also not stated as to the exact seat of the injuries caused by the blows given by the appellant. So in this view of the matter, the objective circumstances available in the case do not fully support the case of the prosecution as presented through P.W.1. 8. Moreover, there is material on record that there was a counter case between the same parties in which the accused persons who are witnesses and Jibardhan Majhi was the injured. The Investigating Officer at para-17 of his cross-examination denies the fact that Jibardhan was admitted to District Headquarters Hospital, Jharsuguda on 29.11.1995. However, in the later paragraph, i.e. at paragraph 20, he has admitted that the accused Jibardhan Majhi was treated at District Headquarters Hospital, Jharsuguda from 29.11.1995 to 22.12.1995. This aspect shows that P.W.4 was not independent while investigating into the case and was a partisan witness. 9. Moreover, there is material on record that there is dispute between the families of the accused and the deceased regarding landed properties and for that a proceeding U/s.145 of the Code was pending between them. So, there is every possibility of false accusation in this case. 10. Keeping in view the aforesaid discussions and conspectus of the materials available on record, we are of the opinion that the prosecution has not brought home its case beyond all reasonable doubt. Rather the evidence of P.W.1 suffers from infirmity that has been mentioned in the body of the judgment which raises a reasonable doubt regarding complicity of the appellant in commission of the crime. In that view of the matter, we are of the considered opinion that the conviction and sentence awarded by learned Addl. Sessions Judge, Jharsuguda cannot be sustained in the eye of law and has to be set aside. In the result, the appeal is allowed. Conviction of appellant Siraji Naik @ Dhudi for the offence U/s.302 of I.P.C. and sentence of imprisonment for life are hereby set aside. Sessions Judge, Jharsuguda cannot be sustained in the eye of law and has to be set aside. In the result, the appeal is allowed. Conviction of appellant Siraji Naik @ Dhudi for the offence U/s.302 of I.P.C. and sentence of imprisonment for life are hereby set aside. He is acquitted of the charges. 11. This Court has ordered release of the appellant on bail upon appeal on dtd.12.11.2001. The trial court shall verify if he has availed the bail granted to him. If he has been released on bail, the bail bonds shall be cancelled. If he is still in custody, he be set at liberty forthwith, if his detention is not required in any other cases. L.C.R. be returned forthwith.