Orissa High Court
[email protected] Naik vs State Of Odisha on 12 May, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRA No. 235 of 1995
From judgment dated 29.07.1995 passed in S.T. Case No.184 of
1993 of learned District & Sessions Judge, Dhenkanal-Angul.
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[email protected] Naik ...... Appellant
-Versus-
State of Odisha ....... Respondent
Advocate(s) appeared in this case :-
_______________________________________________________
For Appellant : Ms. A. Dei,
Amicus Curie
Advocate
For Respondent : Mr. S.K. Mishra,
[Addl. Standing Counsel]
_______________________________________________________
CORAM:
MR. JUSTICE SASHIKANTA MISHRA
JUDGMENT
12.05.2023
SASHIKANTA MISHRA, J.
The appellant, in the present appeal questions the
correctness of the judgment of conviction and sentence
passed by learned Sessions Judge, Angul-Dhenkanal on
29.07.1995 in convicting him under Section 304 Part-II of
IPC and sentencing him to undergo rigorous
imprisonment for six years.
2. The prosecution case, briefly stated is that on
22.05.1993, the local police came to the village of the
informant-Nishakar Naik and asked him whether the
accused persons including the present appellant were
preparing country liquor. The informant having answered
in the affirmative, the accused persons bore grudge
against him. After departure of the police from the village,
they came to the house the informant being armed with
weapons like axe, Farsa, lathi etc. and assaulted Bhaskar
Naik (Since deceased), the brother of the informant. They
also assaulted the informant and his other family
members causing grievous bodily injuries. The said
Bhaskar Naik succumbed to his injury while being treated
as Dhenkanal Hospital. Nishakar Naik therefore, lodged
FIR before Sadar P.S. Dhenkanal leading to registration of
P.S. Case No.110/21 of 1993 under Sections
452/324/326/335/394/34 IPC followed by investigation.
Upon completion of investigation charge sheet was
submitted, adding the offence under Section 302 of IPC.
3. The defence plea, apart from denial was of false
implication owing to previous dispute between them.
Further plea of the defence was that the informant and his
family members were aggressors in the quarrel that had
taken place between them on the date of occurrence.
4. To prove its case, prosecution examined twelve
witnesses of whom P.W.1 is the autopsy surgery, P.W.2 is
the informant, P.W.3 is the wife of the deceased, P.W.4 is
a co-villager, P.W.5 is a seizure witness, P.W.6 is a witness
to the seizure of the weapon of offence recovered at the
instance of the accused, P.W.7 is another seizure witness,
P.W.8 is a co-villager, P.W.9 is an eyewitness and co-
villager, P.W.10 is the IO, P.W. 11 is the Doctor who
examined the injured person at the first instance and P.W.
12 is the scribe of the FIR. That apart, the prosecution
proved fourteen documents and four material objects.
On the other hand, the defence examined two
witnesses who are co-villagers.
5. After appreciating the evidence on record, the trial
court found that prosecution not successful in bringing
home the charges against the other accused persons and
therefore acquitted them. However, the trial court found
the prosecution to have proved its case against the
present appellant and therefore convicted him for the
offence under Section 304 Part-II and sentenced him as
aforesaid.
6. Heard Ms. Anima Dei, Amicus Curiae and Mr. S.N.
Das learned Additional Counsel for the State.
7. Ms. Dei assails the impugned judgment by raising
the following grounds:-
(i) There is unexplained delay in examination of the
witnesses by the IO after the occurrence and the
informant was not examined at all.
(ii) The trial court has brushed aside the glaring
discrepancies in the evidence of the prosecution
witnesses.
(iii) The trial court failed to appreciate that most of
the witnesses being related to the informant and the
deceased, were interested witnesses.
8. Mr. S.N. Das, on the other hand, has supported the
order of conviction by contending that the trial court has
meticulously scanned the evidence on record and given
the benefit of doubt wherever necessary to the accused
persons. As regards the grounds raised by the Amicus
Curiae, Mr. Das submits that these are not so material as
to alter the finding of the trial court.
9. On an independent appreciation of the evidence on
record, this Court finds that the informant P.W.2 fully
corroborated the FIR story in material particulars. So only
because he was not examined by the I.O., for reasons best
known to the latter cannot wash away his entire evidence
which comes out as truthful and credible. Moreover,
nothing was elicited from him in cross-examination to
doubt his veracity. The same is the evidence of P.W.3, wife
of the deceased and also P.W.4. All three of them have
withstood the rigoros of cross examination without in the
least stating anything that would pursued the Court to
view their sworn testimony with suspension.
The medical evidence of the autopsy Surgeon P.W.1
and P.W.11, otherwise prove the injuries sustained by the
deceased and the injured person.
The defence plea that injuries were self inflicted is
hard to believe being without any supporting evidence.
10. Thus, on the cumulative reading of the version of
PWs.2, 3 and 4 as supported by P.W.9, it can be clearly
discerned that on the date of occurrence, the accused
persons including the present appellant entered into the
house of the deceased and assaulted him by means of axe.
P.W.2 clearly deposed to have seen accused Bhalu
(appellant) giving blow with a tangia (axe) to the leg of the
deceased. He also stated about pelting of stone on the
forehead of P.W.3. P.W. 3 has fully corroborated the
version of P.W.2. It is evident that the accused persons
assaulted the deceased by inflicting blows with axe on his
leg, which obviously is not a vital part of the body.
Therefore, it cannot be said that they were actuated with
the intention of causing his death.
11. Reading of the impugned judgment reveals that the
trial court has carefully gone through the evidence of the
witnesses and discarded the minor contradictions therein
to arrive at the conclusion that the case is one under
Section 304 Part-II and not 302 IPC. In view of the
foregoing discussion, this Court is persuaded to concur
with such finding and order of conviction.
12. At this stage, Ms. Dei would submit that the offence
took place thirty years back at the time when the accused
was aged about 35 years. Presently, he is aged about
seventy years. He has spent some time in custody during
trial and therefore has understood the rigors of law. It
would therefore be too harsh to send him to prison at this
stage.
Mr. S.N. Das however, opposes such submission on
the ground that the offence committed is heinous in
nature and therefore, the sentence does not warrant any
interference.
13. Considering the submissions as above and on noting
the fact that the incident took place thirty years back and
the appellant being of advanced age at present, it would
indeed be harsh to send him to prison to serve the
remaining part of the sentence at this distance of time.
Moreover, no criminal activity has been reported against
him, post the occurrence. This Court is therefore, of the
view that ends of justice would be best served by confining
the sentence to the period of imprisonment already
undergone by the appellant during trial.
14. In the result, the appeal is allowed in part. The
impugned order of conviction is confirmed but the
sentence is modified to the period of imprisonment already
undergone by the appellant. Before parting with the case,
this Court would like to place on record its appreciation
for the Amicus Curie Ms. Anima Dei for ably assisting the
Court. Her professional fee is fixed at Rupees Ten
thousand.
(Sashikanta Mishra)
Judge
Digitally signed by BHIGAL
BHIGAL CHANDRA TUDU
CHANDRA TUDU Date: 2023.05.15 13:40:55
+05'30'
Orissa High Court, Cuttack,
Dated 12th May 2023, B.C. Tudu, Sr. Steno
