✦ High Court of India

MR. JUSTICE D. DASH MR. JUSTICE v. NARASINGH DATE OF HEARING

Case Details

IN THE HIGH COURT OF ORISSA AT CUTTACK GA No.40 of 2001 From the order dated the 27.02.1997, passed by learned Sessions Judge, Kalahandi-Nuapada at Bhawanipatna, Dharmagarh Circuit, in S.C No.53 of 1996. ------------------ State of Orissa …. Appellant 1. Pabitra Naik 2. Sarat Naik -versus- …. Respondents For Appellant For Respondents : : Mr. G.N. Rout, ASC Mr. P.K. Behera, Advocate CORAM: MR. JUSTICE D. DASH MR. JUSTICE V. NARASINGH DATE OF HEARING : 02.07.2024 DATE OF JUDGMENT: 20.08.2024 V. Narasingh, J. 1. Heard Mr. G.N. Rout, learned ASC for the Appellant

Legal Reasoning

IPC is ex facie perverse calling for interference of this Court in exercise of its appellate jurisdiction. 19. Learned counsel for the Respondents Sri P.K. Behera submits that since the finding of the learned trial Court based on cogent analysis of evidence on record, there being no infirmity, the appeal is liable to be dismissed. 20. The learned trial Court has analyzed the evidence of P.Ws 1,4,5 and 6 and more particularly the evidence of P.W.6. While analyzing the evidence on record relating to the complicity of Sarat Naik( Respondent No.2), held that Sarat Naik holding the deceased to facilitate the co-accused Pabitra Naik, is not corroborated from the evidence of P.Ws 1 and 4 and referring to the deposition of P.W.5, the learned Trial Court has come to finding that the same statement also does not throw any light regarding the complicity of Sarat Naik. G.A. No.40 of 2001 Page 7 of 10 P.W.4 in his cross examination has stated that he has seen the occurrence and has not seen the accused Pabitra Naik stabbing the deceased but he believes the said Pabitra Naik must have stabbed the deceased since he was brandishing the knife in the air. Since the witness is not an eye witness, his evidence does not lend any credence to the case of the prosecution. P.W.5 has deposed that he cannot say as to who has stabbed the deceased since he was not present at the time of incident. Relating to the complicity of Sarat Naik( Respondent No.2), the witness stated that he cannot say if anybody has caught hold of the deceased at the time of stabbing. P.W. 6 though in his examination in chief supported the prosecution case, but in his cross examination stated that he has only heard the altercation of words and nothing else and he cannot say who assaulted whom by means of what. The witness further specifically stated that he has not seen the Respondent no.2-Sarat Naik holding the deceased. Nothing material has been elicited from the aforesaid witnesses relating to the role ascribed to both the accused-Respondent No.2.Thus the learned Trial Court has rightly held that implication of the accused Sarat in the crime alleged appears to be doubtful. 21. On a close scrutiny of the evidence of P.Ws 1 and 4, this Court is not persuaded to take a view that there is any evidence on record which unerringly point to the involvement of Respondent No.2 ( Sarat Naik) in the alleged Act of holding the deceased, for the co-accused (Pabitra Naik) to stab him. 22. So far as the accusation relating to Respondent No.1 (Pabitra Naik) is concerned, this Court finds that there is G.A. No.40 of 2001 Page 8 of 10 evidence on record, which is clearly borne out from the deposition of P.Ws 1,4 & 6 that the overact in stabbing the deceased is solely attributable to Respondent No.1 (Pabitra Naik). 23. There is ample evidence on record that the occurrence took place after a quarrel and on the spur of the moment due to sudden and grave provocation because of the utterances of deceased, who was the son of the priest. 24. The prosecution has not been able to establish that there is any premeditation in the act committed by the Respondent No.1 (Pabitra Naik). And as rightly noted by the learned Trial Court at the time of the institution of the case in the year 1996, the accused was a young man of 19 years without any criminal antecedent. 25. As such on analysis of evidence on record the background in which the offence was committed, this Court does not find any infirmity in the judgment of the learned Trial Court in convicting the accused (Pabitra Naik) of the offence under Section 304 part-II IPC and sentencing him undergo R.I. for 5 years which, in the considered view of this Court, meets the ends of justice and does not merit interference. 26. In view of the analysis in the preceding paragraphs, this Court does not find any infirmity in the judgment of the learned Trial Court acquitting Respondent No.2 (Sarat Naik) of the charges under Section 302/341/34 of IPC. 27. In the result the appeal being devoid of merit is dismissed. The bail bond of Respondent No.1 (Pabitra Naik) stands cancelled and sureties are discharged. G.A. No.40 of 2001 Page 9 of 10 28.

Arguments

and Mr. P.K. Behera, learned counsel for the Respondents. 2. This Appeal at the instance of the State is filed under Section 378(1) and (3) of the Cr.P.C. assailing the judgment dated 27.02.1997 passed by the learned Sessions Judge, G.A. No.40 of 2001 Page 1 of 10 Kalahandi-Nuapada at Bhawanipatna, Dharmagarh Circuit in S.C. No.53 of 1996 acquitting the Respondent No.2 (Sarat Naik) of the charges under Section 302/341/34 of IPC and finding Respondent No.1 (Pabitra Naik) guilty under Section 304 Part-II of IPC and directing him to undergo R.I. for five years. It is stated at the Bar that the said Respondent has served the sentence so imposed. 3. The case of the prosecution was that the village Sargipara is the hamlet of village Bandhakana, where six families of Banka caste reside and during Chaitra festival on 02.04.1996 a goat, fowl and other puja materials was purchased from contribution from all and for the ritual of sacrificing the goat. 4. The case of the prosecution is that during the dressing of the goat for sacrificing, there was an altercation between Rabi Patra (since deceased) and Sarat Naik (Respondent No.2). Later, on being annoyed by the behavior of the deceased (Rabi Patra) accused Pabitra Naik (Respondent No.1) also joined issue. In the commotion that followed, it is alleged that Pabitra Naik (Respondent No.1) gave a stab blow on the left chest of the deceased (Rabi Patra) while Sarat Naik caught hold of him. 5. It is the further case of the prosecution that after inflicting such blow the accused persons- Respondents 1 and 2 ran away. P.W.4 (Dhangada Majhi) and one Kesaba Patra brought the injured (Rabi Patra) to the open Court yard of P.W.1 (Damodar Naik) and covered his injury by a towel. They took the injured to the local doctor of “Churagaon” for treatment and on examination he advised them to shift the G.A. No.40 of 2001 Page 2 of 10 injured to Jaipatna Hospital. Thereafter, the injured Rabi Patra was shifted to DHH, Bhawanipatna and admitted as an indoor patient. During treatment at the said District Headquarters Hospital, Bhawanipatna on 05.04.1996 at 5.15 A.M., unfortunately the injured Rabi Patra succumbed to the injuries. 6. In the meantime law was set into motion on 03.04.1996 by institution of Jaipatna P.S. Case No.25 of 1996 by Damodar Naik (P.W.1) citing the Respondents as the named accused persons, alleged to have committed the offence under Sections 341/326/34 of IPC. As said Rabi Patra died during the course of treatment in the Headquarters Hospital, Bhawanipatna on 05.04.1996 at 5.15 A.M, the case turned to one under Section 302/34 of IPC. 7. It is on record that I.O (P.W.8), who conducted the investigation before the case turned to one under Section 302 IPC arrested the accused persons on 04.04.1996 at about 10 A.M. from the house of Jagabandhu Patra. 8. It is stated that on the basis of statement recorded under Section 27 of the Evidence Act, the weapon of offence-the knife (M.O.-I) was brought out from under a box inside the house of Jagabandhu Patra and the same was seized. 9. P.W.9, took over the investigation from P.W.8, once the case turned to one under Section 302/34 of IPC and after investigation submitted charge sheet under the said sections against the Respondents. 10. During the course of trial to drive home the charge the prosecution examined 9 (Nine) witnesses and the star witnesses of the prosecution are P.W.1,4,5 and 6. The F.I.R.(Exhibit-1), G.A. No.40 of 2001 Page 3 of 10 the Post Mortem report (Exhibit-3), the bed head ticket (Exhibit-4) are of significance. The weapon of offence-knife (M.O.-I), lungi and Gamucha of the deceased (M.O. II and III) were also admitted into evidence at the behest of the prosecution. 11. The plea of the accused persons was one of the complete denial and false implication. 12. P.W.1, the informant, in his examination in chief while stating about the quarrel which ensued on account of the sacrificing the goat, stated that accused Sarat Naik caught hold of Rabi Patra(deceased) and accused Pabitra Naik gave a knife blow to the chest of the Rabi Patra with its sharp side. In his cross-examination, he has stated that he does not know what happened near the house of the accused Pabitra, who was standing in front of his house and the deceased (Rabi Patra) went to the house of Pabitra Naik (Respondent No.1) and he feigns ignorance regarding the occurrence near the house of the accused Pabitra but states that after some time the deceased (Rabi Patra) came to him by holding his chest and told “MATE MARI DELANA”. The defence has been able to bring out from the mouth of the said prosecution witnesses that he had got defective eye sight and it was dark. 13. P.W.4, in his examination in chief stated that the accused Sarat Naik caught hold of the deceased Rabi Patra and the accused Pabitra by means of knife stabbed him from back on the left side chest of the deceased. The defence has been able to elicit from the said witness in his cross examination that he G.A. No.40 of 2001 Page 4 of 10 has actually not seen the occurrence but has further stated that the incident took place in the court yard of the accused Pabitra Naik and the deceased raised hullah that “PABITRA HAS STABBED HIM” 14. P.W.5, in his examination in chief stated about the accused Sarat Naik holding the deceased and the other accused Pabitra Naik stabbing him on chest. In his cross-examination he stated thus: “xxx xxx xxx I cannot say as to who stabbed the deceased since I was not present there. I cannot say also if any body caught hold of the deceased the time of stabbing I did not go with the deceased to any place in that night and stayed in the village. After 8 to 10 days I heard that the deceased has expired. xxx xxx xxx” 15. P.W.6, in his deposition states about the altercation between the deceased on one side and the accused persons Sarat Naik and Pabitra Naik. He has stated in his evidence that the deceased (Rabi Patra) ran towards the accused Pabitra Naik and at that time the accused Pabitra Naik was standing in the court yard of his house. He further stated that after few minutes the deceased came away and shouted that “the accused Pabitra Naik stabbed him while accused Sarat Naik was caught him.” He has also stated in his evidence that he found both the accused persons running away and accused Pabitra Naik was holding something in his hand by then. Nothing material has been elicited from his cross- examination regarding his statement relating to the role ascribed to both the accused-Respondents. Though the prosecution drive G.A. No.40 of 2001 Page 5 of 10 to connect the accused Pabitra Naik with the commission of offence on account of discovery of M.O.I which was allegedly brought out from underneath the box from the house of Jagabandhu Patra but since the said statement was not recorded in terms of the 27 of the Evidence Act, cannot be relied upon. 16. Learned counsel for the State Sri Rout submits that the statement of P.W.6 in arriving at the finding relating to the complicity of the respondent Pabitra Naik ought not to have been discarded in respect of the co-accused (Sarat Naik) and it is his further submission on the basis of evidence on record while sentencing the learned Trial Court committed a glaring error in not sentencing both the accused persons for commission of offence under Section 302 of IPC. 17. In this context he draws the attention of this Court to the evidence of P.W.3, who conducted the postmortem and found the following external injuries on the dead body. “xxx xxx xxx Injury No.1. Penetrating injury situated on the left side chest at sixth intercostal space in midclavicular line, size 21/2 cm x 1 cm x 4 cm. That wound was stitched one which I opened. The margin of the injury was clear cut. Injury No.2. There was also another wound which was stitched one situated over abdomen extending from syphisternum to symphysis pupis, that was post G.A. No.40 of 2001 Page 6 of 10 surgical in nature. There was also grove on the right lumber region, that was done for treatment. xxx xxx xxx” 18. Referring to the evidence of the P.W. 3-Doctor that while causing injuries No.1 the internal injuries on the stomach, dyfram, plura and lungs and the chest wall were resulted and such injuries are possible by knife (M.O.I) and the injuries are ante mortem in nature and sufficient in ordinary course of nature to cause death, asserts with vehement that the Judgment acquitting Sarat Naik (Respondent No.2) of the charges under Section 302/341/34 of IPC and finding the other accused Rabi Naik ( Respondent No.1) guilty of under Section 304 part-II of

Decision

Accordingly, the GA stands disposed of. (V. Narasingh), Judge. (D. Dash) Judge. D.Dash, J. I Agree. Orissa High Court, Cuttack, Dated the, 20th August, 2024/Soumya Signature Not Verified Digitally Signed Signed by: SOUMYA RANJAN SAMAL Designation: Jr. Stenographer Reason: Authentication Location: High Court of Orissa Date: 26-Sep-2024 18:30:58 G.A. No.40 of 2001 Page 10 of 10

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