BANKA NAYAKO Vs. STATE OF ORISSA

JUDGEMENT

(1.) This appeal of Banka Nayako, Radhakrishna Choudhury and Dandapani Choudhury, by special leave, is directed against the appellate judgment of the Orissa High Court dated February 10, 1971, upholding their conviction for an offence under Section 302/34, I. P. C. and sentence of rigorous imprisonment for life.

(2.) It is not in dispute, and is in fact admitted, that there was a long standing dispute between Ramchandra Choudhury (P. W. 1) on the one side, and appellants Radhakrishna Choudhury and Dandapani Choudhury on the other. Appellant Banka Nayako is the servant of Radhakrishna Choudhury. The dispute related to partition of joint family properties, and gave rise to several civil and criminal cases. Saita Naik was the servant of Ramchandra Choudhury (P. W. 1) and was his supporter in the litigation. He had also started some criminal cases against the appellants and was a witness for Ramchandra Choudhury (P. W. 1) in some cases against the accused. He was involved in some cases started by appellant Dandapani Choudhry. A dacoity case started by Ramchandra Choudhury (P. W. 1) was pending against the accused on the date of the incident. It is alleged that Ramchandra Choudhury (P. W. 1) started from his village Punando on March 5, 1969, at about 4 p.m., along with Saita Naik and reached Hinjilikatu at about 6 p.m. He then left for Aska by bus. Saita Naik, Nabadwipa Padhi (P. W.2) and Bishnu Gouda (P. W. 5) left for Punando. While they were passing through the dry bed of Ghodahada river, it is alleged that Saita Naik stayed back to answer the call of nature, while his two companions proceeded towards the northern bank of the river. When they reached the northern bank, it is alleged that Nabadwipa Padhi and Bishnu Gouda found that all the fourteen accused who were challenged in this case were present near a ditch armed with 'Khanatis', lathis and 'Katis'. They began to attack Nabadwipa Padhi (P. W. 2) and Bishnu Gouda (P. W. 5) but they ran away. It is alleged that the accused then attacked Saita Naik. Appellants Dandapani Choudhury and Radhakrishna Choudhury are said to have pierced him with 'Khanatis', and Banka Nayako hit him with a 'kati' on the head. Nabadwipa Padhi (P. W. 2) went to Hinjilikatu and then to Aska, and narrated the incident to Ramchandra Choudhury (P. W. 1). Both of them went to Pattapur Police Station and lodged a report at 2 a.m. It is alleged that, in the meantime, Golla Nahaka (P. W. 10), who was a nephew of Saita Naik, heard about the incident from Bishnu Gouda (P. W. 5) at mauza Puddo, and went to Ghodahada river along with some villagers including Saita Naik's son Musa Nayak (P. W. 3). They found that Saita Naik was lying unconscious in the bed of the river. Musa Nayak is said to have given him some water, and he regained consciousness. It is further alleged that, on inquiry, Saita Naik informed those present that Dandapani Choudhury and Radha Krishna Choudhury had pierced him with 'khanatis' and Banka Nayako had struck him with a 'kati' on his head and that be expressed a desire to be taken to Hinjilikatu where he said he would give further details of the incident. He was accordingly taken there, but he died by the time he reached Hinjilikatu. A report of the incident was lodged by Golla Nahaka (P. W. 10) at Hinjilikatu police station. A post-mortem examination was performed on the body of Saita Naik by Dr. K. K. Misra (P. W. 13). He found several injuries on his body, and his report is on the record as Ex. 5. All the injuries were found to be antemortem and Saita Naik's death was found to be due to the combined effect of synocope and coma. Fourteen accused were challenged and the Sessions Judge of Ganjam-Boudh, Behrampur, convicted them all of the offence of rioting armed with deadly weapons under Section 148 and of murder under Section 302 read with Section 34, I. P. C. He sentenced them to undergo rigorous imprisonment for two years for the offence under Section 148, and to imprisonment for life for the offence under Section 302 read with Section 34, I. P. C. On appeal, the High Court upheld theconviction and sentences of the present appellants, but acquitted the remaining eleven accused.

(3.) The prosecution examined Nabadwipa Padhi (P. W. 2). Bishnu Gouda (P. W. 5), Ganapati Choudhury (P. W. 4) and Khalli Padhi (P. W. 8) as eye-witnesses of the incident. At the trial, Bishnu Gouda (P. W. 5) did not support the case of the prosecution. Of the remaining three witnesses, Nabadwipa Padhi (P. W. 2) has been held by the High Court to be an interested witness, and rightly so, for he has admitted that he looked after the cultivation of Ramchandra Choudhury (P. W. 1) for a period of five years. It will be recalled that Ramchandra Choudhury (P. W. 1) was the person who had employed Saita Naik and was involved in criminal and civil cases against the appellants. Nabadwip Padhi (P. W. 2) has also admitted that appellant Dandapani Choudhury had started two cases against him before the date of occurrence, and that he was a witness for Ramachandra Choudhury (P. W. 1) in four cases against the accused. Moreover Nabadwipa Padhi did not state in his report to the police that the accused were armed with 'khanatis' or 'katis' or that he had seen them surrounding Saita Naik. The High Court has not therefore found it possible to convict the appellants on his testimony.