Nitia@Nityananda Naik And Another vs State Of Odisha

Sashikanta Mishra, J

The appellants in the present appeal seek to challenge the judgment dated 08.10.2001 passed by the learned Sessions Judge, Keonjhar in S.T.Case No.58 of 1998, whereby they were convicted for the offence under Sections 302/201 of IPC and sentenced to undergo rigorous imprisonment for life.

Prosecution case, briefly stated, is as follows:-

On 14.11.1997 on the Rahas purnima day, the informant Mohan Kumar Mohanta, his younger brother Subash Mohanta accompanied by their parents were proceeding to village Saleikena to witness ‘pala’ at about 10. P.M. While going through the agricultural fields, they met both the accused persons and their father Sukadev Naik, who asked for their identities. The informant’s father identified himself and his family members and on their query, informed that they were going to witness pala in their village and proceeded on his way. The accused persons along with their father followed them. Suddenly, accused Nityananda accosted the group from the front while accused Hari was at the rear. Suka was also behind Hari. Nityananda held a ‘Bahungi’ while Hari held a bow and arrow and an axe. Nityananda assaulted the father of the informant with the Bahungi and then both brothers together assaulted the informant’s parents by Bahungi and axe causing them to fall on the ground. Suka Naik was also present there. Seeing the assault, the informant and his younger brother ran away out of fear and went towards their village Dimiria. While Subash proceeded to Saleikena, the informant went home and informed his elder sister, then he informed Bipin Master of his village and searched for other villagers but all of them had gone to witness the Pala. The informant then went to the house of Purna Sahu and informed him about the occurrence. Thereafter, both went to the house of the Chowkidar, Pravakar Patra and narrated the incident. The Chowkidar advised them to report the matter at the police station and thereafter both came to the police station and submitted the report. It was a full moon night and the informant could clearly identify the accused persons and Suka. While he was reporting the matter at the police station, his younger brother Subash came and informed that their mother was lying dead at the spot. There was a land dispute between the accused persons and the father of the informant for five to six years prior to the incident and a case was pending in the Court. Bearing grudge, the accused persons had killed his parents.

The report of the informant was reduced to writing leading to registration of Telkoi P.S. Case No. 72 of 1997 under Sections 302/34 of IPC followed by investigation. Upon completion of investigation, charge sheet was submitted against the accused persons under Sections 302/201/34 of IPC.

The accused persons took the plea of denial.

To prove its case, prosecution examined fifteen witnesses and proved thirty three documents besides three material objects.

Defence did not adduced any evidence, either oral or documentary.

After analyzing the evidence on record, learned Sessions Judge found that prosecution had established its case entirely against accused–Nityananda and accused-Hari but he did not find any incriminating evidence against accused-Suka. As such, Suka was acquitted but the other accused persons (present appellants) were held guilty of the offences under Sections 302/201 of IPC and were convicted for the same and sentenced as already stated hereinbefore.

Being aggrieved, the accused persons have preferred the present appeal.

Heard Mr. C.R. Sahoo, learned counsel for the accused-appellants and Mr. Partha Sarathi Nayak, learned Additional Government Advocate for the State.

Before proceeding to consider the grounds of challenge to the impugned judgment, we deem it proper to scan the evidence on record vis-à-vis the findings arrived at by the learned Sessions Judge reflected in the impugned judgment. It is borne out from the record that the informant’s parents, namely, Ranjit Mohanta and his wife, Adri had lost their lives in the alleged occurrence. Defence does not dispute the nature of their death being homicidal. Learned Sessions judge has also held so basing on the postmortem reports and the version of the concerned doctors. We therefore, do not wish to re-examine such aspect at this stage.

It is seen that out of the fifteen witnesses examined in the case only two, i.e., the informant (P.W.4) and his younger brother (P.W.5) are the eyewitnesses. We have scanned their depositions carefully. It is seen that both P.Ws.4 and 5 have described the occurrence in vivid detail. Both of them stated that while they were proceeding to Saleikena village to witness Pala along with their parents they were obstructed by the accused persons and accused-Nityananda assaulted their parents with a Bahungi while Hari assaulted with an axe. The injuries described by the witnesses find ample corroboration from the postmortem reports. Both of them were cross-examined extensively, but not a single contradiction could be brought out thereby. The post occurrence witnesses, namely, P.Ws.1, 2, 6, 7 and 8 have also corroborated the version of the eyewitnesses.

Turning to the impugned judgment, we find that the learned Sessions Judge has meticulously analyzed the evidence of all witnesses, including that of the edoctors and found overwhelming proof that the accused persons had committed the alleged crime. Ex facie, we find no reason to differ.

Coming to the grounds of challenge, Mr. Sahu has raised the following objections:-

i. There is doubt as regards the identity of the assailants because the alleged occurrence is said to have taken place during a foggy night.

ii. Since the deceased were found with incised wounds, the same could not have been caused by means of a Bahungi as alleged by the prosecution.

iii. P.W. 5 admitted in cross-examination that he had not seen who assaulted his mother.

iv. Material witnesses like the sister of the informant, Bipin Master and other villagers before whom the informant claims to have narrated the incident at first have not been examined.

v. The evidence leading to discovery of the weapon used in the offence is doubtful.

Per contra, Mr. P.S. Nayak would argue that this is a case of conviction based on eye-witness accounts. Both the eye-witnesses have testified clearly and cogently about the occurrence and their version is without any contradiction whatsoever. The so-called discrepancies pointed out by the defence are not material. As regards the question of the injuries being caused by the weapons used, Mr. Nayak refers to the version of the Doctor, P.W. 3, who clearly stated that the incised injury found on the head was caused by the axe, while the other injuries found on the body were caused by the Bahungi.

Coming to the first ground that the identity of the accused persons was doubtful because of the foggy night, we find that the defence desires to take mileage from the statement of P.W.11 in cross-examination to the effect that generally by Rahas purnima time fog appears during night and at times it becomes so dense that it is difficult to identify persons from close distance. We are not persuaded to place any reliance on the above statement. Firstly because, P.W.11 was not present during the occurrence and secondly, his statement is general in nature. It cannot mean that on every night during Rahsh purnima fog appears invariably. In contrast, the informant (P.W.4) stated in cross-examination that it was a full moon night and importantly, there was no fog. There is nothing on record to suggest that he was lying.

Therefore, the contention of the defence is untenable.

As regards the second ground, it is urged by Mr. Sahoo that a Bahungi being a bamboo stick used for carrying loads placed on shoulder could not have caused the incised wounds found on both the deceased. It is not disputed that police seized a Bahungi, which was made of bamboo and about 5 feet long. However, we need not detain ourselves on this objection for long because the autopsy surgeon (P.W.3), who had examined the weapons sent to him by the I.O. for his opinion stated as follows in his cross examination:-

“The incised wounds found on both the deceased can be caused by the axe and other injuries of deceased Ranjit Mohanta can be caused by bahungi. The fracture injury of Adri Mohanta can be caused by bahungi”

The above evidence clearly segregates the injuries into those caused by the axe and those caused by Bahungi. It is not the prosecution case that the Bahungi had caused the incised wounds. The argument of Mr. Sahoo is therefore, not acceptable.

Coming to the next ground, it has been urged that since P.W.5 admitted that he had not seen who assaulted his mother, his version should not have been relied upon. We are unable to accept this argument as he has clearly stated to have seen Nityananda assaulting his father causing him to fall down. He also said that he had seen both his parents falling down on the paddy field. He admitted that he had not seen who assaulted her but if his version is read as a whole along with that of P.W.4, it become manifest that accused-Nityananda assaulted his father while accused-Hari assaulted his mother. In fact, both the accused persons assaulted and caused death of both the deceased.

As regards the effect of non-examination of certain post-occurrence witnesses, we are not persuaded to make much out of such omission, for the reason that the eye-witness version through P.Ws.4 and 5 is found by us to be reliable, credible, trustworthy and without any contradictions. It is well settled that when reliable eye- witness accounts is available, no further corroboration is necessary. In fact we find that the above objection being raised during trial, learned Sessions Judge has considered the same and rejected the contention on the same ground as above.

It has been argued that the evidence of recovery of the weapon of offence at the instance of the accused persons is shaky and not credible at all. Be it noted that of the two weapons used the Bahungi was found at the spot while the tangia (axe) was recovered from a field at the instance of accused-Hari. P.W.7 is the witness to such recovery with his statement marked Exhibit-9. The place of seizure was a public place beside the road. We find that learned Sessions Judge has considered this aspect and held that the important point was not accessibility of the place of concealment but whether the same was ordinarily visible to others or not. This according to us, is proper reasoning and we therefore, concur with it.

Thus, it is seen that none of the grounds urged by the appellants are valid enough to persuade us to take a different view from that taken by learned Sessions Judge.

Even on an independent appreciation of the evidence, we are satisfied that the prosecution case against the accused persons is fully made out. We therefore, find no reason to interfere with the impugned judgment.

In the result, the appeal fails and is therefore, dismissed. The appellants being on bail, their bail bonds be cancelled and they be sent to custody forthwith to serve the sentence imposed.