Hari Naik and Others vs State of Orissa

I.M. Quddusi, J.—This Criminal Appeal has been filed against the judgment and order dated 1st June 1988 passed by the Second Additional Sessions Judge, Ganjam-Berhampur, in S.T. No. 25/86 (160/86 G.D.C.) convicting appellant No. 2 u/s 304, Part-II of IPC and sentencing him to undergo four years'' R.I. and convicting rest of the appellants viz., Hari Naik-appellant No. 1, Manu Naik-appellant No. 3 and Nava Naik-appellant No. 4, u/s 323 and sentencing them to undergo R.I. for six months each subject to set off in the matter of sentence.

The prosecution case, in brief, is that on 7.6.86 at about 7 to 8 P.M., accused persons armed with bamboo lathies were standing near a tube well which is situated between Pana and Hadi Sahi. The accused persons belonged to Hadi caste and the injured belongs to Pana caste. At about 7 to 8 p.m., Kora Naik (P.W. 1) was returning from Bada Danda Sahi. Near the tube well, on seeing him accused Hari Naik scolded him and assaulted him by means of a bamboo stick on his forehead, as a result of which Kora Naik raised a hualla and on hearing the same Arakhit Naik, Bala Naik, Sulia Naik and Ors. came to the scene of occurrence. Arakhit an old man went forward to bring a pacification between Kora Naik and Hari Naik. At that time accused Bala Naik gave a blow on the head of Arakhit with the Bamboo, as a result of which he fell unconscious and subsequently died in the hospital. In the same night, Kora Naik, who was initially assaulted by Hari Naik, lodged FIR at the Pattapur Police Station whereafter police started investigation, held inquest over the deadbody of Arakhit Naik and forwarded it for post-mortem examination, seized the cloths of the deceased, prepared the spot map, seized the bamboo lathis from the house of the accused persons and sent the injured Kora Naik, Bala Naik, Sulia Naik for medical examination, arrested the accused and after completion of the investigation, submitted the charge sheet. For the self-same alleged occurrence, one Bala Naik had lodged an FIR at the Pattapur Police Station which was registered as P.S. Case No. 47/86 and the accused were sent to Pattapur hospital for treatment of injuries on their persons.

The prosecution has examined as many as nine witnesses, out of which P.Ws. 1, 3 and 4 are the injured. P.W. 5 and 8 are independent witnesses. P.W. 2 is the medical officer who had conducted post mortem examination. P.W. 7 is the doctor who examined the injured, P.W. 6 is the constable who accompanied the dead body and P.W. 9 is the Investigating Officer.

On 8.6.86, P.W. 7, the doctor examined and treated the deceased Arakhit Naik and found the following injuries on his person before his death.

"i. One lacerated wound obliquely situated over the right parietal region starting from the midline of size of 2" x 1/4" x bone deep.

ii. Abrasion over the right occipital, region 1" away from the midline at the parietal occipital junction of size 3/4" x 1/2".

iii. Abrasion over the right occipital region 1" away from the injury No. 2 of size 1" x 1/2".

The doctor P.W. 7 examined Kora Naik (P.W. 1), Sulia Naik (P.W. 3) and found that they had sustained lacerated injury and abrasion on their persons as per Exts. 5, 6 and 7 respectively. The injury reports have been proved by the doctor in respect of Arakhit Naik under Ext. 4. In Ext. 8 the doctor has opined that the injuries No. 2 and 3 sustained by Arakhit Naik can be possible due to fall on a rough surface. As deposed to by P.W. 7 with reference to Ext. 10 on 8.6.1986 at 8.30 A.M. said Arakhit Naik died in the hospital in course of treatment due to cardiac respiratory failure. As revealed from the evidence of P.W. 10 and P.W. 7, the patient was admitted in semi-conscious state at 2.30 A.M. and at 5 A.M. the deceased Arakhit was treated with unconscious state. P.W. 7 has specifically opined that injury No. 1 on the head of the deceased Arakhit Naik was grievous in nature and was possible by hard and blunt weapon. The doctor opined that all lacerated injuries including that of the deceased Arakhit can be possible by lathi. Further, the doctor P.W. 7 examined Maga Naik, Lingaraj Naik, Juria Naik, Bala naik, Manu Naik, Hari Naik, Nava Naik and found that the injuries sustained by them are simple lacerated injuries.

While coming to the injury on Arakhit Naik (deceased), P.W. 7 has stated that the injury on the head was situated obliquely over the right parietal region starting from the midline. As Arakhit died in course of treatment, P.W. 2 conducted the post mortem on the body of deceased Arakhit and found the same head injuries i.e., the injury Nos. 1, 2 and 3. As deposed to by P.W. 7 the said injuries correspond to the post mortem finding of P.W. 2. But P.W. 2 has further found three abrasions more, one on the lateral side of right knee, and another abrasion on the left knee joint and a further abrasion on the left ear in the left side of the face. On dissection, he found the following three internal injuries :

"i. Haematoma underneath the external wound No. 1 over an area of 8" x 4" more on left side i.e., whole of left parieto temporal and left front and left occipital region. The left temporal muscle contused underneath the wound the suture line separated the saggital suture and the coronal suture on left side.

ii. An extra dural organized haematoma over the whole of the left hemisphere.

iii. Brain tissue pale."

The doctor P.W. 7 has opined that the death was due to shock and haemorrhage as a result of the injury on the head, which was fatal in ordinary course of nature, caused due to heavy stroke with blunt force impact which is consistent with homicidal death and the injuries were ante-mortem in nature. He has also proved the post mortem report Ext. 2.

There is no material to discredit, the statements of the eye-witnesses i.e., two independent witnesses, and the other injured persons. Therefore, their testimony cannot be disbelieved.

Learned Counsel for the appellants did not show any material by which an inference can be drawn that prosecution fails to prove its case beyond all reasonable doubt. The Learned Second Additional Sessions Judge found the appellants guilty and there is no good reason to interfere with the findings given by Learned Additional Sessions Judge. However, considering the facts and circumstances of the case, this Court is of the opinion that while maintaining the conviction of the appellants, their sentences should be reduced and altered.

In view of the facts and circumstances mentioned above, the conviction of the appellants by the Learned Additional Sessions Judge is upheld. However, their sentences are reduced and altered as under.

The appellant Nos. 1, 3 and 4, namely, Hari Naik, Muna Naik and Nava Naik respectively are sentenced to undergo two months'' R.I. and to pay a fine of Rs. 250/- each in respect of their conviction u/s 323, IPC. However, the period already spent by them in the jail during investigation, inquiry or trial before the date of conviction is set off against the term of imprisonment by providing benefit u/s 428, Cr.P.C. It is provided that in case of non-payment of fine they have to undergo S.I. for a period of one month more each. Appellant No. 2-Bala Naik is sentenced for the offence punishable u/s 304, Part-II, IPC to the period already undergone which is about 2 years and 22 days as he was arrested on 8.6.96 and released on bail by order of this Court on 1.7.98.

Accordingly the appeal is allowed in part.