Sahadeb Naik & Others vs State Of Orissa
2021 Latest Caselaw 13046 Ori

         THE HIGH COURT OF ORISSA AT CUTTACK

                            CRA No.63 of 2000

  (Arising out of the judgment dated 18th February, 2000 passed by the learned
 Additional Sessions Judge, Nayagarh in S.T. Case No.37/76/429 of 1997/1993 &
            S.T. Case No.38/44/475 of 1997/1994, u/S.302/34, I.P.C.)


  Sahadeb Naik & Others                       ......                  Appellants

                                   -versus-
  State of Orissa                             ......                Respondent



  Appearing in the case :-
            For the Appellants : Mr. H.K. Mund, Advocate
            For the Respondent : Mrs. Saswata Patnaik, A.G.A.

           CORAM:
           THE CHIEF JUSTICE
           JUSTICE A. K. MOHAPATRA

                          JUDGMENT

th 24 December, 2021

Dr. S.Muralidhar, CJ.

1. This appeal is directed against the judgment and order of conviction dated 18th February, 2000 passed by the learned Additional Sessions Judge, Nayagarh in S.T. Case No.37/76/429 of 1997/1993 & S.T. Case No.38/44/475 of 1997/1994.

2. There are four Appellants in the present case. They have been held guilty of the offence punishable under Sections 458/302/34 IPC and have been sentenced to undergo imprisonment for life.

3. The case of the prosecution is that, in the night of 6th October, 1988 the present Appellants along with co-accused Dusasan Naik entered into the house of the deceased Jayakrushna Naik, who was sleeping in the verandah of the house. The accused Dusasan fired a gun shot at the deceased which struck on the backside of his head. The accused persons fled away immediately after the occurrence. The deceased sustained profuse bleeding injury and lost his senses. He was first taken to the Khandapara Hospital and then Nayagarh Hospital. But as his condition became critical, he was then referred to the S.C.B. Medical College & Hospital, Cuttack, where he ultimately succumbed to the injury on 10th October, 1988.

4. The case was one of the direct evidence. The prosecution relied on the testimony of the widow of the deceased PW 1 and the elder brother of the deceased - P.W.3 (informant of the case).

5. The defence plea was one of complete denial of the charge.

6. This Court has heard the submissions of Mr. H.K. Mund, learned counsel for the Appellants and Ms. Saswata Pattnaik, learned Additional Government Advocate for the State.

7. One of the submissions of Mr. Mund, learned counsel for the Appellant is that it was a dark night and there was no light in the house. He submits that the evidence of PW 1 about the accused focusing the torchlight on the deceased and through that light she being able to identify the accused persons, was totally

unbelievable. His point was that since the accused persons were behind the light, she could not have seen them clearly. Further he submits that the said two witnesses were supposed to have informed the Grama Rakhi (PW 4) about the incident soon after it took place. However, neither of them named any of the accused at that stage. Mr. Mund accordingly submits that neither of the witnesses was sure of the identity of the culprits and naming them later was an afterthought.

8. This Court has carefully perused the evidence of PWs.1 and 3. No doubt they are related witnesses and could also be termed as 'interested witnesses.' This only means that the Court has to be cautious in appreciating their evidence and seek independent corroboration through other reliable evidence.

9. On the issue of appreciation of evidence of interested witnesses, in Dalip Singh v. State of Punjab AIR 1953 SC 364 it was held as follows:

"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person.

It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth."

10. In Piara Singh v. State of Punjab AIR 1977 SC 2274 the Supreme Court held:

"It is well settled that the evidence of interested or inimical witnesses is to be scrutinised with care but cannot be rejected merely on the ground of being partisan evidence. If on a perusal of the evidence the Court is satisfied that the evidence is creditworthy there is no bar in the Court relying on the said evidence."

11. In Hari Obula Reddy v. The State of Andhra Pradesh (1981) 3 SCC 675 the Supreme Court observed:

"... it is well settled that interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence.

All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon."

12. Again, in Ramashish Rai v. Jagdish Singh (2005) 10 SCC 498, it was held:

"The requirement of law is that the testimony of inimical witnesses has to be considered with caution. If otherwise the witnesses are true and reliable their testimony cannot be thrown out on the threshold by branding them as inimical witnesses. By now, it is well-settled principle of law that enmity is a double- edged sword. It can be a ground for false implication. It also can be a ground for assault. Therefore, a duty is cast upon the court to

examine the testimony of inimical witnesses with due caution and diligence."

Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon."

13. Keeping in view the above legal position in mind, the Court proceeds to examine the evidence of PW 1. She states in her examination-in-chief as under:

"I know the accused persons who are in the dock and also the absentee accused Abhimanyu Nayak. The occurrence took place about eight years back, in the night. By then it was dead of night. My husband Jayakrishna Nayak was sleeping on the verandah of our house in front of the room where I had slept. At the relevant time, I was quite alive and giving milk to my son. At this time, I heard some sound of arrival of some persons in our courtyard. I saw these four accused persons along with accused Abhimanyu got down in our courtyard by scaling over the boundary wall. My husband had slept at a distance of 3 to 4 cubits from me.

2. The accused persons threw torchlight focus on my husband and then immediately fired gut shot to him. I raised hullah and on hearing this, my Dedhasura Baikuntha came out from his room. He threw torchlight focus to the accused persons and through that I could identify the accused persons. I saw accused Dhusa was holding a gun, accused Abhimanyu was holding a lathi, accused Mahendra was holding a Bhusa, accused Judhistira was holding a torch and accused Sahadev was holding a Farsa. Accused Dhusa fired gut shot aiming to my husband and on seeing this, I raised alarm by saying that Dhusa fired gut shot to my husband. On hearing my

shout, my Dedhasura Baikuntha came out from his room.

3. The gun shot struck on the backside head of my husband. The other accused persons had not done anything to my husband. But they fled away on seeing the condition of my husband. Immediately we brought my husband to Khandapara hospital, from there to Nayagarh hospital and from there to Cuttack hospital where he died."

14. The above evidence is clear and cogent and consistent to the medical evidence which completely corroborates her description of how the gun shot passed through the rear side of the head of the deceased.

15. This witness was subject to searching cross-examination. In para-5 of the evidence, she stated as under:

"All these 3 bed rooms are having R.C.C. Roof. There is a staircase to the roof. It adjoins to the bed room of my Diara. By sitting in my bed room I could see the accused persons on the courtyard. I could see them through the torch light focus threw by them on my husband. The accused persons stood at a distance of 5 to 6 cubits from my husband. The torchlight focus also fell in my room. That was a dark night."

16. Thereafter, there were only negative suggestions given to her. Nothing in the cross-examination managed to cast even a shadow of doubt on her credibility. Even as regards the torchlight being the source of light for her to identify the assailants, she stated as under:

"Soon after the torch light focus fell on my husband, the gun shot was done. The length of that gun would

be about three cubits. There was a profuse bleeding and pilling of flesh from the head of my husband at the spot soon after the gun shot. The pilling of flesh was stained at the pillar of my house. I immediately went to my husband, embraced him and thereby my wearing Sari was stained with blood and the police also seized that Sari from me. On the next day morning we took my husband to Khandapara hospital. I myself, my Dedhasura and two other persons of my village accompanied my husband to Khandapara hospital. From Khandapara hospital, we took my husband to Khandapara P.S."

17. The fact that the deceased and the accused were known to each other, makes the evidence of PWs 1 and 3 as regards their correctly identifying the assailants, credible and reliable. Further, as suggested by the Appellants themselves in the memorandum of appeal, there was previous enmity between the two families. This is despite the legal position being explicit that in the case of direct evidence, the failure to establish motive would not affect the case of the prosecution.

18. The next witness is PW 3, who is the elder brother of the deceased and the informant in this case. He fully corroborates the evidence of PW 1 in material particulars. The actual motive for the crime has been brought out in his deposition as under:

"There was a murder case relating to the murder of Basant Naik of our Sahi by the accused persons and they were facing trial in that case bearing G.R. No.34/88 of Khandapara. In that case the deceased Jaya, myself were the witnesses and deposed in this case. So, the accused persons threatened us to kill and they materialized the same in that night."

19. This witness too was subjected to thorough cross-examination on behalf of the defence. Yet, he was clear and consistent as can be seen from the following deposition:

"I have seen their coming in my inner courtyard by scaling over western side wall. I saw them jumping one after another by producing 'DUM DAM' sound. But I did not raise alarm. I saw accused Judhistir threw a torch light focus and accused Dhusasan fired a gut shot. The courtyard was filled up with the smoke. In my F.I.R. I have stated that the accused persons entered inside our inner courtyard by opening the door of our backyard in the night at 12 P.M. The statement made in the F.I.R. is not correct. After 7.10.88 I met the police on 12.10.88 after returning from Cuttack. The police took my statement on 14.10.88. The wife of Sanatan was present in the house. She was Janaki.

8. I have not stated in my F.I.R. Ext.1/1 that the accused persons entered inside my inner courtyard by scaling over the western side wall and accused Judhistir threw torchlight focus on Jaya Naik. There was no light except the focus of my torchlight and as well as the torch light focus of Judhistir. The police saw my torchlight and returned back the same to me. The inner courtyard of my house is made of earth. There was foot prints on the inner courtyard. The police have raised those foot prints. There were 16 family members of our Sahi. Nobody came to our house although raised hullah in that night."

20. Consequently, the cross-examination of PW 3 only strengthened his version and lent credibility to his evidence.

21. For all the aforementioned reasons, the Court finds no reason to interfere with the impugned judgment of the trial court.

22. The appeal is accordingly dismissed. The bail bonds furnished by the Appellants are hereby cancelled. The Appellants are directed to surrender immediately before the trial court in order to serve out the remainder of their sentence. If the Appellants do not surrender within two weeks from today, the IIC of the concerned P.S. will take necessary immediate steps to apprehend and produce them before the trial court.

(Dr. S. Muralidhar) Chief Justice

(A. K. Mohapatra) Judge

S.K. Parida