Rushi Naik@ Nayak vs State Of Orissa

S.S. Mishra, J.

The petitioner, has filed the present Criminal Revision under Sections 401 & 397 of Cr.P.C. against the judgment and order dated 25.03.2011 passed by the learned Sessions Judge, Ganjam- Gajapati, Berhampur in Criminal Appeal No.97 of 2009 whereby the order of conviction and sentence passed by the learned J.M.F.C., Digapahandi, Ganjam in G.R. Case No.132 of 1997/T.R. No.15 of 2006 was confirmed.

The petitioner was subjected to prosecution in Pattapur P.S Case No.105 of 1997 registered under Sections 341/294/324/506 of IPC.

The prosecution case in brief is that on 08.06.1997 at about 12 P.M while the informant Arakhita Naik’s son Indra Naik had been to village Patiguda, the accused Rushi Naik out of previous enmity, hurled filthy language and demanded to know why he had been to his village. The accused criminally intimidated the son of the informant with threat to kill and also assaulted on his head by means of an iron pipe blow causing bleeding injury.

On the basis of such informant, Pattapur P.S case registered. After completion of allegation  made  by  the No.  105  of  1997  was the Investigation, police submitted charge sheet on 05.08.1997 against the petitioner under Sections 341/294/323/506 of IPC. The accused persons were put to trial.

In order to substantiate the allegation, prosecution has examined ten witnesses. The plea of defence is that of completely denial. In proof of his plea, defence examined himself as D.W. 1 in support his case U/s 315 Cr.P.C.

Learned J.M.F.C, Digapahandi (Ganjam) analyzed the evidence in detail and recorded the conviction against the petitioner under Section 323 of IPC and acquitted him from the charges under Sections 341/294/506 of IPC vide judgment dated 23.07.2009 in G.R Case No.132 of 1997 corresponding to T.R No.15 of 2006 and sentenced the petitioner to undergo simple imprisonment for six months.

The judgment of conviction and sentence dated 23.07.2009 passed by the learned J.M.F.C., Digapahanadi, Ganjam in G.R. Case No.132 of 1997 corresponding to T.R. No.15 of 2006 for the aforementioned offences was called in question by filing Criminal Appeal No.97 of 2009 before the Court of learned Sessions Judge, Ganjam - Gajapati, Berhampur by the petitioner.

The learned appellate Court vide its judgment and order dated 25.03.2011 has rejected the appeal inter alia stating as under under:

“10. A perusal of the evidence on record would show that injuries found by the Medical Officer sustained in the course of occurrence could not have been a false allegation. The only point for consideration, therefore, is whether the injuries were caused by the accused or some one else. If some one else has caused the injuries to PW 1, it is highly unusual that he will not drop out the real culprit and depose against the accused, who has nothing to do with the occurrence. The natural human conduct in such a case is that the informant had not left out the real culprit and has implicated the accused only who had committed the crime. The Medical Officer PW.6 has deposed and his report as contained in Ext.2 reveals that lndra Naik, has sustained injuries.

Much has been sought to be made of the previous enmity between the parties. But enmity is a double edged weapon which as frequently constitutes the accused’s motive for the crime as often it constitutes the informant's motive for false implication. In such a case the settled position of law is not to reject the evidence of the eye witnesses outright but to scrutinize their evidence carefully. Once it is established by careful scrutiny that the evidence is acceptable, and reliable. Previous enmity between the parties should be treated as an additional assurance that the accused being actuated by previous enmity has assaulted the injured. I have already carefully scrutinized and accepted the evidence of the injured and eye witnesses as trustworthy. More significantly, it is nobody's case nor the defence contention that some other person assaulted the injured PW 1. I am. therefore, driven to hold that the inimical relationship between the parties far from being a discredited factor is a further corroboration to the allegation that the injured was assaulted by the accused. Therefore, the contentions advanced by the learned counsel for the appellant are not acceptable. In the perspective, the impugned judgment suffers from no illegality or infirmity. I am therefore, entirely in agreement with it.”

The petitioner has challenged the aforementioned judgment/order of conviction and sentence in the present Revision Petition.

The prosecution examined ten witnesses to bring home charges for the offences under Sections 341/294/324/506 of the IPC against the petitioner. P.W.3 was the informant in the present case, where as P.W.1 was the injured. P.W.2 was the mother of the injured. The prosecution claimed that P.Ws.4,5,7,8,9 & 10 were the independent witnesses where as P.W.6, the Doctor, who had examined P.W.1, the injured.

From the reading of the evidence on record, it could be observed that the learned trial Court had indeed relied upon the testimony of P.W.1, according to the learned trial Court his evidence draws corroboration from the evidence of P.W.6, the doctor. P.W.6 in his deposition has stated that the injured had received two injuries. One lacerated injury of 3” in the forehead, second is lacerated injury of 3” over the head and left nose. He opined that both the injuries are simple in nature. In this case, there were no eye witnesses to the occurrence. P.Ws.2,3,4, & 5 were examined by the prosecution, who inter alia stated that they had only shifted P.W.1 to the hospital but none of them stated to have seen the occurrence. They have also stated that P.W.1 was lying on the road of village of the accused person in an injured condition. The accused/petitioner in this case had examined himself as a defence witness under Section 315 of Cr.P.C. He in his statement inter alia stated that P.W.1 along with fifteen other persons came to his village and dragged him to the village and assaulted him. He further deposed that he had sustained injuries on his person and as per the police requisition, he was treated at Pattapur P.H.C. on 09.06.1997. He also proved the signature in the injury requisition made by the police to the Medical Officer, which was marked as Ext. A. He further stated in his deposition that despite his repeated request, the police did not lodge the F.I.R. against P.W.1 and other attackers. Therefore, he deposed that he had to initiate a complaint case, i.e., I.C.C. Case No.11 of 1997 against the informant P.W.1 and others, which was still pending at the time of recording of the evidence. Therefore, according to him, the inured was the aggressor and he attacked the accused person in his village. This story appears to be correct because P.Ws.2,3,4, & 5 have stated that P.W.1 was lying unconscious on the village road of the accused, from where they had taken him to the hospital. Learned trial Court disbelieved the defence evidence on the ground that the I.O. of the case being a public servant had no reason to falsely implicate the accused persons. Therefore much emphasis was supplied to the informant evidence and the defence evidence was disbelieved. Accordingly, the petitioner was convicted under Section 323 of the IPC and sentence to undergo R.I. for a period of six months.

The petitioner challenged the order by filing Criminal Appeal No.97 of 2009.

The learned Sessions Judge, Ganjam at Berhampur vide its judgment dated 25.03.2011 has confirmed the conviction and sentence passed by the learned trial Court. In Paragraph-9 of the judgment, the appellate Court recorded as under;

“9. The evidence of the injured has received ample corroboration from the evidence of the eye witnesses PW 7 Kandha Naik and PW 8 Biswanath Naik. They have consistently alleged in their evidence that on the day of occurrence they saw that the accused assaulted Indra with an iron rod as a result of which he sustained bleeding injury. The accused examining himself as DW 1 has deposed that on the date of occurrence at the relevant time while he was sitting on the verandah of his house the injured PW 1 along with fifteen other persons arrived there, dragged him to the village road and assaulted him as a result of which he sustained injuries on its person. DW 1 has produced and proved the medical certificate in support of his injury and his signature on the injury report has been marked Ext.A. According to DW 1 he has filed a complaint case vide I.C.C. No.11/1997 against the informant, which is till pending in the learned Court below. The learned Court below has disbelieved the evidence of DW 1 in the absence of any corroboration. The learned JMFC has observed: “I found thee is no reason why a Police Officer, who is a public servant, will falsely submit charge sheet against the present accused without any reason.” True it is that defence cross examination has brought out certain contradictions in the evidence of PW 7 and PW 8. Even if the contradictions brought out in the cross examination of PW 7 & 8 are said to be proved those will not materially affect the credibility of the essential aspect of the prosecution case with regard to assault on PW 1. Besides each and every contradiction and inconsistency does not affect the credibility of the eye witnesses. No one can expect a witness to depose long after the occurrence without any inconsistency or contradiction with his earlier statement recorded immediately after the incident. In fact it is only the tutored witnesses, who will be above to give evidence long after the incident without any inconsistency or contradiction.”

I have perused the evidence on record and evaluated the judgments of the Courts below. I find no reason to disbelieve the testimony of the accused adduced under Section 315 of the Cr.P.C. The testimony of the accused in defence had corroborates with the document proved by the petitioner, therefore created a dent in the prosecution version. P.W.1 the injured was admittedly found lying near the house of the accused person. No explanation is coming forth from the prosecution as to in what circumstance and for what reason P.W.1 had gone to the village of the accused. The fact that the accused himself was injured is also apparent from the record as on the requisition of the police, he was treated in the Pattapur P.H.C. The said requisition was also proved on record as Ext.A. The accused/petitioner had also brought on record the fact that the police did not register the F.I.R. lodged by him. Therefore, he had filed I.C.C. Case No.11 of 1997. The appellate Court had not taken into consideration the evidence of defence recorded under Section 315 of Cr.P.C. The appellate Court rather relying upon the testimony of P.W.1 and the Doctors evidence confirmed the conviction and sentence. The evaluation of the entire evidence on record gives an impression that the story put forth by the prosecution is not trustworthy because the evidence of the prosecution witnesses being shaky are not worth reliable. In that view of the matter the prosecution has failed to prove its case beyond all reasonable doubt. I am, therefore, of the considered view that the conviction recorded by the Court below under Section 323 of the IPC and sentence awarded in lieu thereof are liable to be set aside.

Accordingly, the judgment and order dated 25.03.2011 passed by the learned Sessions Judge, Ganjam-Gajapati, Berhampur in Criminal Appeal No.97 of 2009 is set aside. The petitioner is acquitted from all the charges and the bail bonds furnished by the petitioner stand cancelled.

The Criminal Revision petition is allowed.

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