Criminal Appeal No. 107 of 1991 · The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No. 119 of 1991 (In the matter of an application under Section 374(2) of the Criminal Procedure Code, 1973) Mani Naik ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Mr. Bijaya Kumar Ragada, Amicus Curiae For the Respondent: Ms. Suvalaxmi Devi, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 25.11.2025 :: Date of Judgment: 09.12.2025 S.S. Mishra, J. The present Criminal Appeal is preferred by the convict Mani Naik, challenging the judgment of conviction and order of sentence dated 20.04.1991 passed by the learned District & Sessions Judge, Dhenkanal in Sessions Trial No.74 D of 1989 convicting the appellant for the offence punishable under Section 304/34 of the IPC and sentencing him to undergo R.I. for five years. 2. Initially, three accused persons stood charged on the alleged commission of offences punishable under Sections 302/324/323/34 of the IPC. By the common impugned judgment, although three accused persons have been convicted for the offence as mentioned above, the other two convicts filed separate appeal, being Criminal Appeal No.107 of 1991. Both the appellants in Criminal Appeal No.107 of 1991 have died. Therefore, the said appeal stood abated qua the other deceased two convicts. 3. The case pertains to an F.I.R. in connection with Dhenkanal Sadar P.S. Case No.127/1988 registered by P.W.1 Akhaya Naik. After the investigation, the charge sheet was filed against all the accused persons for the alleged commission of the offences punishable under Sections 302/324/323/34 of the IPC. 4. The prosecution case in nutshell is that on 22.10.1988, in the evening, one Laxmi Naik, wife of Narayan Naik, was attacked by a spirit called ‘Baseli’ and she was taken to the Durga Temple by her mother-in-law, Bari Dei and aunt Atula Dei for performing puja to the Deity in order to drive away the spirit. Dhira Naik (P.W.8) performed puja of the deity and others including P.W.1 Akhaya Naik, his brother Ajaya Naik were playing drums, Balasen and Bhikari played with other instruments. P.W.11 Debaraj Jena recited Mangalastuti. Many persons were present to witness the said puja. After one hour of puja, Page 2 of 17 the Deity did not appear on the body of the Pujari (P.W.8). In the meantime, all the three accused persons came there and they abused P.W.1- Akhaya Naik, the deceased and others, alleging that they had taken the beaf and liquor for which the deity did not appear in the body of the priest. There were some altercations between them and accused Mani Naik came with a Valla to assault the deceased Ajaya Naik, but the other persons intervened. The accused persons returned to their houses. Thereafter, at about 9 p.m., the informant Akhaya Naik, deceased Ajaya Naik, P.W.6 Galu Naik, P.W.7 Bijaya Naik, P.W.8 Dhira Naik, P.W.9 Amulya Naik and P.W.10 Nalu Naik were returning to their respective houses. When they reached in front of the house of Galu Naik, these accused persons suddenly appeared. Accused Mani Naik was holding a Valla, accused Benudhara Naik was holding a Farsa and accused Kambu was holding an iron pipe and immediately accused Benudhara and Kambu caught hold of Ajaya Naik and threw him to the ground and pounced on him. Accused Mani Naik pierced Valla into his abdomen and removed the Valla and in the process the intestine came out. When Galu Naik intervened to save Ajaya Naik, accused Benudhara Naik assaulted him with a Farsa near his left eye. Accused Kambu Naik attempted to give the blow Page 3 of 17 with an iron pipe on Galu Naik, but the blow accidentally fell on the hand of accused Benudhara Naik. When they raised hulla, the accused persons left the place with the weapons. Immediately, P.W.1 and others took the injured Ajaya Naik and Galu Naik to the Headquarters hospital, Dhenkanal, for treatment and later on, they shifted them to the S.C.B. Medical College & Hospital, Cuttack, where ultimately injured Ajaya Naik died on 16.11.88. P.W.1 lodged the F.I.R. at the Town Police Station, Dhenkanal. 5. Consistently, none appeared for the appellant despite repeated
Legal Reasoning
calls. Therefore, this Court requested Mr. Bijaya Kumar Ragada, learned counsel, who was present in the Court, to assist the Court in the capacity of Amicus Curiae and he obtained the paper book and assisted the Court effectively. 6. Heard Mr. Bijaya Kumar Ragada, learned Amicus Curiae appearing for the appellant and Ms. Suvalaxmi Devi, learned Additional Standing Counsel appearing for the Respondent-State. 7. The accused portrayed the defence, inter alia, taking a stance that after the hot argument happened in the temple, they went away to their respective houses. Then at about 9 p.m., the deceased Ajaya Naik, being armed with a pointed edge iron rod and P.W.6 Galu Naik Page 4 of 17 with iron pipe came to their courtyard and abused them. When Ajaya Naik tried to assault the accused Mani Naik (the appellant), there was a tussle of pulling the iron rod between them and during the tussle, the deceased sustained injuries. It is also stated that P.W.6 assaulted Benudhar Naik (the co-accused) with iron pipe, causing fracture injury on his right hand. When he was aiming to give another blow at his hand, Benudhar tried to snatch away the iron pipe from the hands of P.W.6 and there was tussle. In the said tussle, P.W.6 also sustained injury. 8. In order to bring home the charge, the prosecution examined 13 witnesses. P.W.1, P.W.6, P.W.7, P.W.8, P.W.9 and P.W.10 were the eyewitnesses to the occurrence. Another eye-witness P.W.11 was declared hostile by the prosecution. P.W.2, Dr. D. Panda, who examined the injured. P.W.3, Dr. N. Samanta, who conducted operation on the deceased. P.W.4, Dr. K. Biswal, who conducted the post-mortem examination of the deceased and P.W.14, Dr. S. Satpathy, who first treated the deceased at the S.C.B. Medical College & Hospital, Cuttack. P.W.5 was the Police Constable who carried the dead body of the deceased. P.W.12 and P.W.13 were the Investigating Officers. Page 5 of 17 9. The learned trial Court, by analyzing the evidence of the eye witnesses and the doctor, has recorded as under: “7. Now it is to be seen that how far the prosecution has proved the case against the accused persons for causing the death of the deceased and for causing injuries to P.W.6. As already stated above from the evidence of P.W.1 and P.W.6 to P.W.10 and P.W.11, one woman Laxmi Dei was attacked by a Spirit called ‘Baseli’ and was taken to Durga Temple in their Sahi in Jubuli Town and P.Ws.1 and 6 along with deceased Ajaya Naik were playing drums and the Puja was performed according to their belief. After Debaraj (P.W.8) performed puja, the spirit enters into his body and the spirit is driven out from the person who was attacked with it. It is alleged that while Puja was going on, these accused persons came and abused the P.Ws. and deceased because they took liquor and beaf, so the spirit was not appearing and there was some altercation between them near the temple and after the matter was subsided the accused persons left the place and while P.Ws. and the deceased were going towards their homes these accused persons suddenly appeared on the way and attacked them causing injury on Ajaya Naik and Galu Naik. In this connection the learned Advocate for the accused persons argued that in the F.I.R. lodged by P.W.1 stated that the entire occurrence took place near Durga Temple, but at the time of the trial they gave a different story and changed the place of occurrence. He further contended that if the place of occurrence was in front of the house of P.W.6 Galu Naik, there must have some blood stains on the ground and the I.O. immediately visited the spot on the same night and he could not find any blood stains. This shows that the occurrence did not take place, as stated by the P.W.1 at the time of trial in front of the house of Galu Naik but it took place near Durga temple. The I.O. in his cross-examination stated that the occurrence took place at a distance of 100 yards from Durga temple and he prepared the spot map. It is true that in the F.I.R. it was not specifically stated as to where the occurrence took place. But he described how the accused persons chased them and assaulted Ajaya Naik by piercing the Valla into his abdomen, as a result the intestine came out. Admittedly, P.Ws. and the accused persons belong to Danda Sahi of Jubuli Town, Dhenkanal Town and the houses are very close to this temple. The consistent case of the P.Ws.1, 6, 7, 8, 9 and 10 is that while they were going to their house from the temple these Page 6 of 17 accused persons appeared and accused Benu and Kambhu caught hold of the deceased Ajaya Naik and threw him on the ground and while they were holding him accused Mani Naik pierced the Valla into his abdomen and removed the Valla as a result the intestine came out and that when P.W.6 Galu Naik tried to intervene he was assaulted by Benudhara Naik with Farsa which hit him over the left eye. These P.Ws. were all along present. It is true that some of these P.Ws. are near relations of the deceased. It is true that there are some discrepancies in the evidence but the fact remains that Mani Naik pierced the Valla into abdomen of the deceased Ajaya Naik. It is true that the defence obtained from the mouth of P.W.2 Dr. D. Panda that the injury on Ajaya Naik is possible with sharp end of an iron rod if two persons struggle for the same and it comes in contact with the person. But none of the P.Ws. supported the defence version of a tussle for the iron rod or Muna except P.W.11. This P.W.11 Debaraj Jena was declared hostile by the prosecution. In his chief examination he has stated that while he was returning to his house and was standing in front of the house of the accused Mani Naik along with others he heard a noise from the side of the house of Mani Naik and he saw Ajaya Naik and Mani Naik were holding one iron crowbar and were snatching with each other and while one Prahhallad Jena tried to snatch away the crowbar so the Sabala was pierced into the belly of Ajaya Naik and he fell down. He was declared hostile and was confronted with his statement made before the I.O. One fact is clear from his statement that the occurrence did not take place near the deity and it took place near the house of Mani Naik and there is evidence that the house of Mani Naik is separated by a lane from the house of P.Ws. In view of overwhelming evidence of P.Ws. 6, 7, 8, 9 and 10 I find that it was the accused Mani Naik who pierced the Valla into the abdomen of Ajaya Naik while the other two accused persons were holding him. The defence plea as putforth by them is far from satisfactory and cannot be accepted so far as the injury on Ajaya Naik are concerned.” 10. Aggrieved by the aforementioned findings of the learned trial Court, which led to the conviction of the appellant, he has filed the present Criminal Appeal to question the same. Page 7 of 17 11. Mr. Ragada, learned Amicus Curiae, has taken me to the evidence of all the witnesses and meticulously pointed out the contradictions in the testimony of all the witnesses. 12. However, I am not impressed by the contradictions pointed out by Mr. Ragada, learned Amicus Curiae, because the contradictions are minor in nature. The evidence of the witnesses needs to be read in its entirety instead of disbelieving the same on the basis of the contradictions, which are minor, natural and obvious due to the lapse of time between the incident and recording of the evidence. 13. Mr. Ragada, learned Amicus Curiae, further pointed out that the incident had happened on 22.10.1988. The deceased, Ajaya Naik, allegedly sustained injury at the hands of the present appellant. The injured remained in the hospital for more than 22 days. Eventually, he allegedly succumbed to the injury on 16.11.1988. However, surprisingly, the Investigating Agency have not recorded the statement of the deceased. Rather, a concocted story was built up so as to implicate the present appellant. The deceased and P.W.6 were the aggressors. They came armed with iron rod and iron pipe to attack the appellant and the other co-accused persons. On their provocation, the quarrel broke out and the tussle took place. In the said tussle, the Page 8 of 17 deceased sustained the injury. Therefore, it would be a case of right to private defence. This aspect of the matter has not been appreciated by the learned trial Court. 14. Per contra, Ms. Suvalaxmi Devi, learned Additional Standing Counsel appearing for the State, submitted that in the present case, all the eye witnesses count is consistent in so far as the incident is concerned and the specific overt act is attributed to the present appellant to the extent that he had pierced the ‘Valla’ into the abdomen of the deceased. That part of the evidence stood corroborated with the evidence of the doctors, who had examined the deceased Ajaya Naik in the hospital, namely P.Ws.3 & 4. The evidences again stood corroborated with the evidence of P.W.4, who conducted the post-mortem examination on the body of the deceased. Therefore, on behalf of the prosecution, this is an open and shut case. Hence, the interference by this Court in the appeal is not called for because the learned trial Court has rightly appreciated the evidence and, by a reasoned judgment, convicted the appellant. 15. I have carefully considered the submissions made by the learned counsel for the respective parties and with their help, I have gone through the evidence meticulously. Page 9 of 17 16. In the present case, there are as many as 11 eyewitnesses examined by the prosecution. P.W.1 was the informant and injured witness, whereas P.W.6 was also an injured witness, who had been examined by P.W.2, the doctor. Except P.W.11, all the eyewitnesses have supported the prosecution case. The accused persons tried to put forth the defence version, which found partial support from the evidence of P.W.11. The eye witnesses to the occurrence, i.e., P.Ws.1, 6, 7, 8, 9 and 10 in unison have deposed before the Court that the occurrence in question took place on 22.10.1988 at 9 p.m. that was a Saturday. In the evening of that day, Laxmi Dei, the wife of one Narayan Naik of their street, was attacked by spirit. Therefore, she was taken to the nearby Durga temple for puja. One Dhira Naik was the priest of the said temple, who performed the puja at Durga temple in order to get rid of the spirit. P.W.1 was the brother of the deceased and others played drum and other instruments during the puja. One Debaraj Jena was singing the Mangalastuti during the puja, which went on for 1 to 1-1/2 hours. In spite of the puja, Maa Durga did not appear in the Priest so as to take away the spirit from the said Laxmi Dei. In the meantime, the accused persons came to the temple and started saying that the priest had taken beaf and liquor. Therefore, Page 10 of 17 Maa Durga Thakurani is not appearing. The utterances by the accused persons created disturbance and there was a quarrel. It is stated by the witnesses that when the quarrel broke out, the present appellant came with a Valla to assault Ajaya Naik (the deceased). But due to the intervention of the other people, the situation subsided and all of them were dispersed from that place. Subsequently at about 9 p.m., while P.W.1, the deceased and P.Ws.6, 7 and 8, Debaraj and Dhira Naik were returning to their houses, the accused persons again came to attack them being armed with weapons. The present appellant was armed with Valla, whereas the co-accused Benudhara was armed with Farsa. Kambu Naik was armed with iron pipe. It is stated by the witnesses that the accused Benudhar Naik and Kambu Naik suddenly caught hold of Ajay Naik (the deceased), who fell down on the ground, face upwards, and both of them pressed him. In the meantime, the present appellant pierced the belly of Ajaya Naik with the Valla, while the appellant was forcefully removing and pulling the Valla out, intestine of Ajaya Naik came out. P.W.6 came to rescue Ajaya Naik and he was also beaten up by the co-accused. As a result, he received injury in the left eye. Page 11 of 17 17. The evidence of all the witnesses is in the same line. They suffered vivid cross-examination by the defence, but their version remained untainted and unshaken. The only witness, i.e., P.W.11 has deviated from his earlier statement and contradicted the evidence of six other eyewitnesses. However, P.W.11 deposed that on the date of incident, Laxmi Dei was brought to the Durga Temple by her husband for performing puja so as to drive away the spirit from her. When the puja was going on, the brother of Laxmi Dei, Mani Naik (the appellant), went near Laxmi Dei and tied her saree around her waist so as to ensure that Laxmi Dei was not naked. At that time, Ajaya Naik (the deceased), Akhaya and others were playing with the musical instruments. They objected to the same, stating that when the appellant touched Laxmi Dei, the spirit either left her or was suppressed in her body. The deceased also told that Laxmi Dei became impure once she was touched, so the spirit disappeared. There was a hot argument, as it is alleged that the appellant had taken liquor and touched Laxmi Dei. Because of the said argument, the disturbance was created. People dispersed from that place and after some time, as per P.W.11, he saw that in the house of Mani Naik (the appellant), Ajaya Naik (the deceased) and Mani were holding iron Page 12 of 17 crowbar and were snatching from each other. At that point in time, the Valla pierced into the belly of Ajaya Naik. The said witness was declared hostile. However, reading of the evidence of P.W.11 also finds support the larger part of the version narrated by the other eyewitnesses. 18. P.W.14, the doctor, who treated Ajay Naik (the deceased) intermittently on 29.10.1988 in the S.C.B. Medical College & Hospital, Cuttack, has deposed that the injured suffered by the deceased was the stab injury in the abdomen with peritonitis and fescal fistula. Because the fistula had earlier been operated on at Dhenkanal headquarters hospital, he decided to conduct an operation. Therefore, a procedure was also carried out on 05.11.1988. P.W.3, who was the first doctor who treated Ajaya Naik (the deceased) in the District headquarters Hospital at Dhenkanal, has deposed that he operated and found that there was a through and through rent (incised wound) of half inch size in the middle of jejunum (part of small intestine) and also there was a rent in the mesentery of the same jejunum. The injuries were repaired and the abdomen was closed. Although postoperatively, the patient improved dramatically, the condition became serious after a couple of days. When two bottles of Page 13 of 17 blood transfused, the patient showed sign of deterioration in general health by the end of the week and he did not improve after all known measures taken on him and therefore, the patient was referred to the S.C.B. Medical College, Hospital, Cuttack on 29.10.1988. 19. P.W.4 was the doctor who conducted the post-mortem examination on the dead body of Ajay Naik (the deceased). He found the following external injuries on the dead body as follows: “(1) One stitched wound of 1-1/2” length seen over the right arm over the elbow joint. (2) An open wound 5” in length in abdomen through which intestinal loops seen. Stich marked also seen in some places. (3) One drained wound in left illiack fossa.” 20. The eye witnesses have also deposed that P.W.6 has received injury in the incident. The said P.W.6 was treated by a doctor, who was examined as P.W.2, who, in his testimony, has deposed that he found three injuries on the person of P.W.6. The injuries are as follows: “(1) One incised wound of ½” length placed on the left moral prominence. (2) Abrasion of 1 inch diameter of irregular margin placed on the anterior part of the left ear. Page 14 of 17 (3) Abrasion of ½” diameter, placed in front of the left ear.” 21. Conjoint reading of the evidence of all six eye witnesses and four doctors leaves no room of any doubt that the incident had taken place on 22.10.1988. A quarrel had ensued between the accused persons and the deceased and the P.Ws. on an argument regarding the impurity in them, which was the reason for the Durga Maa not appearing in the Priest so as to drive away the spirit in Laxmi Dei. During the ensuing argument and scuffle, the present appellant pierced a Valla in the belly of Ajaya Naik (the deceased). Ajaya struggled for his life in the hospital for about 22 days and eventually succumbed to the injuries. 22. The learned trial Court has meticulously dealt with the evidence of all the witnesses and has rightly arrived at the conclusion that the appellant is guilty of the offence punishable under Section 304-B of the IPC. Hence, I am not inclined to interfere with the conviction recorded by the learned trial Court, as such, the same remains affirmed. 23. At this stage, Mr. Ragada, learned Amicus Curiae submitted that the incident relates back to the year 1988. At that point in time, Page 15 of 17 the present appellant was a young man of 23 years. Now, more than three decades have already elapsed in between. The appellant would now be about 63 years old. Much water has flown under the bridge by now. The appellant is already settled in his life with his family. Over the years, he has lived peacefully, well integrated into society, and is presently leading a stable family life. Incarcerating him at this belated stage would have a serious and cascading effect on the entire family. Therefore, he submitted that a lenient view should be taken while considering the sentencing of the appellant. 24. The case relates back to the year 1988. The appellant suffered the trial for three years and thereafter, he filed the present appeal, which has been pending since 1991. About 35 years have elapsed in between. The appellant has been on bail during the pendency of the appeal. 25. Taking into account the entire circumstances of the case, and the gravity of the offence, the age of the appellant, I consider it an appropriate case to modify the sentence. Hence, the sentence is accordingly modified. The appellant is sentenced to undergo R.I. for a Page 16 of 17 period of two years and to pay a fine of Rs.5,000/- (Rupees five thousand), in default of payment of the fine amount, to undergo R.I. for a further period of six months. The period the appellant has already undergone shall be set off from the substantive sentence. 26. Accordingly, the Criminal Appeal is dismissed and the sentence is modified in the manner as indicated above. 27. This Court records appreciation to the meaningful and effective assistance rendered by Mr. Bijaya Kumar Ragada, learned Amicus Curiae. He is entitled to the honourarium of Rs.7,500/- (Rupees seven thousand five hundred) as a token of appreciation. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 9th Day of December, 2025/Subhasis Mohanty Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 11-Dec-2025 15:30:30 Page 17 of 17