Purandar Naik and Another vs State of Orissa

A.S. Naidu, J.—The judgment and order of conviction dated 20th April, 1996 passed by learned Sessions Judge, Mayurbhanj, Baripada convicting the Appellants under Sections 302, IPC and sentencing them to undergo rigorous imprisonment for life in S. T. Case No. 121 of 1994 is assailed in this Criminal Appeal filed u/s 374(2) of the Code of Criminal Procedure.

The two Appellants along with nine others faced trial for commission of offence under Sections 148, 302 read with Section 149 of the Indian Penal Code (in short, ''IPC''). Accused-Appellant No. 1 Purandar Naik alias Purandra Nayak and accused-Appellant No. 2 Santosh Nayak were charged only u/s 302, IPC for committing murder of Bibhisan Nayak and Biranchi Nayak respectively.

Bereft of unnecessary details, the short facts, as it appears from the prosecution case, is that inter se disputes existed between Rajani Nayak (P.W. 1) and her nephews in respect of certain lands located at ''Kantasimila'', Rajani had filed a civil suit at Karanjia. The said suit was decreed and on the strength of the said decree, she cultivated the disputed lands. It appears that both the Appellants had forcibly ploughed the disputed land and sown paddy earlier to the date of occurrence. On the date of occurrence, i.e. on 28th May, 1993, it is alleged, Rajani (P.W. 1) with her husband Budhia Nayak (P.W. 2), her son Bibhisan Nayak (deceased) and Bishnu Naik, Biranchi Naik (deceased), Biranchi''s wife and 10 labourers went to ''Kantasimila'' for ploughing the disputed land, which is locally known as ''Muchurisal''. While they were ploughing the said land, it is alleged, accused Mahendra, Santhosh, Laxmikanta, Ashok, Manoj, Mandadari, Lomeswari, Purandra, Sailesh, Subodh, Gomati. Kumudini and Sova came there and asked them not to carry on the cultivation operation thereon and also shouted at them. At the intervention of Sarpanch Mohan Nayak, Ward Member Narendra Nath Nayak and Markanda Nayak, the matter was pacified and it was decided that the accused persons shall cultivate 12 kadis of Muchurisal land on the year of occurrence in lieu of receipt of their residue paddy. The accused persons thereafter went back to their house. After some time at about noon Bibhisan Nayak and Biranchi Nayak along with the informant and others again went to plough another land locally known as ''Kaladiha'' located nearby the house of the accused persons. The said land, it is said, belong to the informant. While they were doing so, the lady accused persons came in a group and accused Tumeswari assaulted Sakuntala. When Biranchi went to her rescue, accused Lomeswari, Kumudini, Mandadari and Gomati caught hold of him. They assaulted Bibhisan and snatched away their bows and arrows. Thereafter, the male persons caught hold of both Bibhisan Nayak and Biranchi Nayak. It is alleged that accused Laxmikanta, Ashok, Manoj, Gomati and Mandadari caught hold of Bibhisan. While the matter stood thus, accused Mahendra and Sailesh caught hold of Biranchi and accused Santosh dealt an axe blow to him. Accused Purandar alias Purandra also assaulted the informant by means of a stick. After inflicting the injuries, the accused persons left the spot. This incident, it is alleged, was seen by the Ward Member Narendra Nath Nayak and the Sarpanch, Mohan Naik as well as others. The informant immediately went to Jashipur Police Station and reported the matter by filing an FIR (Ext. 11). After receiving information, the O.I.C., Jashipur Police Station proceeded to the spot, found both Bibhisan Nayak and Biranchi Naik lying dead, made inquest over the dead bodies and sent the same for post-mortem examination. The other injured persons from the side of the informant, namely, Rajani Nayak (P.W. 1), Bishnu Naik as well as injured accused Purandar Naik alias Purandra Nayak with Sova Nayak were also sent for medical examination. The I.O. seized the bows and arrows from the place of occurrence, recorded the statement of the witnesses u/s 161, Code of Criminal Procedure and finally submitted charge-sheet against 13 accused persons. Learned S.D.J.M., Karanjia took cognizance of the offence against all the accused persons, but then while framing charges, as no materials were available, accused Sova Nayak alias Rajani Nayak and Subodh Nayak were discharged. The plea of all the accused persons except accused Lomeswari Nayak were that of denial, Lomeswari Nayak took the plea of alibi, Purandar Naik alias Purandra Nayak took the stand that Bibhisan Nayak and Biranchi Nayak (both the deceased) with other members of the prosecution party abused the accused persons while they were carrying on cultivation operation at Kaladiha lands and Biranchi assaulted his mother Sova. Consequently, he got enraged and snatched away the lathies from them and drove them out. According to him, the deceased persons also assaulted him and caused several grievous injuries. He pleaded his ignorance as to who assaulted Bibhisan Nayak and Biranchi Nayak.

In order to substantiate their case, the prosecution got examined nine witnesses out of whom P.W. 1 is the informant, P. Ws. 2, 3 and 6 are eye-witnesses, P. Ws. 4, 5 and 8 are the doctors, who examined both the P. Ws. as well as the accused persons and conducted post-mortem, P.W. 7 is the seizure witness and P.W. 9 is the I.O.

The defence in order to substantiate their case got examined three witnesses to establish the plea of alibi. According to the defence, accused Lumeswari was a teacher at Tangurusahi U. P. School situated at a distance of 20 Kms. away from the place of occurrence and the school was functioning at 12 noon when the alleged occurrence took place. She is a permanent resident of Jhadboda and she was staying in a rented house. Out of enmity she has been falsely implicated.

After scrutinizing the evidence in extenso, and analyzing the statements of the eye-witnesses, P. Ws. 1, 2 3 and 6 and the evidence of P.W. 4, the doctor who conducted post-mortem, learned Court below held that the injuries on Bibhisan and Biranchi were inflicted by the two Appellants. While accepting the fact that the prosecution party had gone to the spot prepared with bows and arrows, learned Sessions Judge declined to accept the plea of right of private defence advanced by the accused persons for the reason that the accused persons had snatched away all the weapons and thereafter inflicted the injuries by means of an axe. On the basis of such discussion, learned Sessions Judge held that the accused Purandar Naik and Santosh Nayak were guilty of committing murder of Bibhisan and Biranchi and convicted them u/s 302, IPC. Learned Sessions Judge, however, held that the prosecution could not substantiate their case against other accused persons and acquitted them from the charges.

Mr. Panda, learned Counsel appearing for the Appellants urged that the trial Court after disbelieving the evidence of the witnesses with regard to nine out of eleven accused persons mainly on the ground that the evidence was shaky, acted illegally and with material irregularity in relying upon the same set of evidence for convicting the Appellants. It is further submitted that the evidence of the prosecution witnesses suffers from material contradictions, inherent improbabilities and infirmities and is not trustworthy and the learned Sessions Judge without properly analyzing the evidence, basing upon surmises and conjectures, has accepted the same. It is further stated that all the eye-witnesses are relatives and are highly interested witnesses and as such, their statements should not have been accepted by learned Sessions Judge as the sole basis for conviction. The further submission of Mr. Panda is that the prosecution had totally failed to explain the injuries sustained by the accused-Appellants. Thus, it is apparent that it has not come to the Court with clean hands and tried to suppress vital facts from the Court, thus no order of conviction should have been passed on the basis of such unreliable evidence. Mr. Panda further brought to the notice of this Court that though the occurrence admittedly took place at 12 noon, the FIR was lodged between 5.15 p.m. to 5.45 p.m. Therefore, the delay in lodging the FIR itself reveals that the prosecution tried its best to develop the case and implicate the persons who were innocent. On the basis of such submissions, Mr. Panda prayed to set aside the order of conviction and sentence.

Learned Addl. Government Advocate, on the other hand, took pains to place the evidence of the eye-witnesses in extenso and submitted that it is clear from their evidence that the accused persons had formed an unholy combination with sole intention to assault the prosecution party and had come prepared with deadly weapons. Relying upon the eye-witnesses vis-a-vis the post-mortem report and the doctor''s evidence, learned Addl. Government Advocate submitted that there is enough material to reveal that both the Appellants have committed the murder and as such, learned Sessions Judge has rightly convicted and sentenced them, and the judgment does not suffer from any infirmity and it is a fit case where the criminal appeal may be dismissed in limine.

To appreciate the submissions made, this Court meticulously once again went through the evidence and other materials. The scenario of facts reveals that the informant''s family and the accused family are closely related to each other and both the accused persons are nephews of the informant (P.W. 1). It is also apparent that civil litigations were pending between the parties for quite sometime and a decree was passed in favour of the informant. On the basis of such decree, P.W. 1 tried to carry on agricultural operation on the disputed land though prior to the said date the accused persons had cultivated the lands and reaped paddy. Consequently, a tussle arose and on being intervened by the Sarpanch, Ward Member and others, both the parties left the place. There-after, it appears, the informant party consisting of 10 outsiders (labourers) went and carried on cultivation in another land, which is near to the house of the accused persons. The evidence further makes it clear that they were carrying bows, arrows and other weapons. Generally farmers going to cultivate the lands do not carry such deadly weapons. The fact that the prosecution party was armed with bows and arrows reveals that they were apprehending danger and they were prepared for the same. According to the prosecution case, when the informant and others were cultivating their lands, some of the ladies belonging to the accused party rushed into the field and assaulted the informant and others. It is further alleged that they caught hold of Bibhisan Nayak and Biranchi Nayak. Subsequently, the two Appellants, it is alleged, came and dealt one blow each with axe on Bibhisan and Biranchi respectively, as a result of which they fell down on the ground. If the picture presented in Court can be accepted, then it is not known as to how the accused persons sustained so many injuries. The fact that both the Appellants and other members of the accused party have received injuries, is evident from the evidence of the doctor, who examined them on police requisition. The said fact gives an impression that the informant party had assaulted the accused persons. Surprisingly the inquest report which was prepared soon after the incident does not reveal that any of these accused persons were instrumental in causing the death of Bibhisan Nayak and Biranchi Nayak. The omission of the names of the Appellants at the very first stage also throws a cloud of suspicion. The accused persons, however, do not dispute the incident.

After hearing learned Counsel for the parties and after going through the materials, this Courts feels that the crucial question which needs to be determined is as to whether right of private defence is available to the accused Appellants. The trial Court after analyzing the evidence had come to the conclusion that even accepting that the deceased party was armed with bows and arrows, the right of private defence is not available to the accused persons for the reason that they had snatched away all the weapons. It is further observed that it was never the case of the accused persons that the informant or Bibhisan Nayak and Biranchi Nayak ever tried to shoot the accused persons with bows and arrows. To arrive at such a conclusion, the trial Court relied upon the evidence of P.W. 2. Perusal of the evidence of P.W. 2, however, reveals that he had not disagreed about the existence of injuries on the accused Purandar and Sova inflicted during the course of occurrence. In para 11 of his evidence, he has stated as follows:

About 7 to 8 persons of village Kantasimila were there near the place of assault. All of us were armed with bows and arrows, Bala, Budia and lathis while going to Muchurisala and Kaladiha. We were 17 to 18 in number.

A question being put by the Court, he answered:

The accused person did not snatch away our weapons but they assaulted us with their own weapons.

In paragraph 13 he has admitted that Purandar, Appellant No. 1 and Sova, one of the accused persons sustained injuries due to their assault when they tried to defend themselves. Paragraph 15 of the evidence of P.W. 2 makes an interesting reading. The said para reads as follows:

Police has written the FIR. A boy of Kantasimila namely Laxmidhar Naik had gone to call the police.

The said Laxmidhar Naik has been examined as P.W. 6. In his deposition he has stated that one Narendra of his village had gone to call the police and he was present at the spot when the police arrived. The said Narendra has not been examined.

After going through the entire evidence, this Court finds that though the informant party had gone to the field being armed with bows and arrows and other deadly weapons and they were more, i.e. about 17 to 19 in number. Thus, there was no occasion for the accused persons to rush into their lands. There is also enough evidence to reveal that the accused persons were assaulted by the informant party. But the evidence of the eyewitnesses reveal that both the Appellants have dealt blows on the head of Biranchi and Bhimseni by axe, which became fatal. There is no evidence to show that the two Appellants apprehended danger to their life or property. Thus, they cannot take the plea of right of private defence.

On a close analysis of the entire evidence and after hearing the learned Counsel for the parties diligently, this Court finds that the learned Sessions Judge has not committed any error apparent on the face of the record in arriving at a conclusion that the death of the two persons was homicidal in nature and that the two Appellants had inflicted the injuries on Bibhisan Nayak and Biranchi Nayak, which caused their death. In spite of the fact that inter se quarrel existed between the parties, the informant party went fully prepared carrying deadly weapons and cultivated the lands lying in close proximity of the resident of accused persons, thereby instigating them by show of force. Even according to the prosecution, the women folk consisting of more than thirteen rushed into the field where the informant''s party was cultivating, thereby a free tight ensued and in the said fight some of the accused persons have also sustained injuries. It further appears that in course of the fight, the Appellants gave one blow each on the head of Bibhisan and Biranchi which became fatal. The said fact clearly reveals that they had no intention to kill Bibhisan and Biranchi inasmuch as they had only inflicted one blow that too in course of free fight. The Appellants are not hardened criminals. Civil litigations are pending between the two families for quite some time. Learned Sessions Judge after a vivid analysis of the materials has found that the prosecution has totally failed to make out a case under Sections 148, 149 and 302, IPC against nine of the accused persons. The said order of acquittal having not been assailed has become final.

Considering all these facts and circumstances, this Court feels that ends of justice and equity will be better served if the order of conviction passed against the Appellants who had inflicted the injuries without any premeditation and on a spur of the moment in course of a free fight u/s 302, IPC is set aside and instead they are convicted u/s 304, Part II, IPC and we direct accordingly.

The incident, as it appears, took place way back in the year 1993. Seventeen years have passed in the meanwhile and the Appellants have remained in custody for all these years. We, therefore, reduce the sentence, to the rigorous imprisonment already undergone by the Appellants. Further, we direct that they shall pay a fine of Rs. 10,000/- (ten thousand) each, in default to undergo rigorous imprisonment for a period of six months. Out of the fine amount, a sum of Rs. 10,000/-(ten thousand) each shall be paid to the family members of each of the deceased.

With the aforesaid modification of sentence, Criminal Appeal is disposed of.

S.C. PARIJA, J.-

I agree.

Order accordingly.