ARJUN NAIK Vs. STATE OF ORISSA

JUDGEMENT

(1.) This appeal assails the order of conviction and sentence passed by the learned Sessions Judge, Dhenkanal in Sessions Trial No. 103 of 1992 under S. 302, IPC whereby and whereunder the appellant was convicted and sentenced to undergo R.I. for life. In brevity the prosecution case is as follows : On the date of occurrence, i.e. on 26-4-1992 there was an altercation between the deceased Tirtha Naik and accused-appellant Arjun Naik over an issue of a marriage feast. After some time Tirtha Naik went to take bath in the village tank locally known as 'Nandanali Tank'. On the way he met the appellant who was engaged in talking with one Suresh Chandra Samal. There was exchange of hot words between the appellant and the deceased. Thereafter the deceased proceeded to take bath in the tank and the appellant followed him. While the deceased was taking bath, the appellant surged forward and inflicted 2/3 blows with an axe on the neck and face of the deceased as a result of which the deceased died instantaneously with bleeding injuries. Achyuta Naik, the son of the deceased Tirtha received information about the incident, came to the spot and found his father lying dead near the tank. Immediately thereafter he went to Balimi police station and lodged the FIR. The OIC of Balimi police station registered a case under S. 302, IPC against the appellant and swung into action immediately. During investigation he examined all the witnesses, seized the wearing apparels of the appellant so also the deceased, seized the weapon of offence (M.O.I.) on being produced by the appellant while in custody which had been concealed in a nearby bush. He also collected nail clippings of the accused and sent the deadbody for post-mortem examination and after completion of investigation placed the charge-sheet against the appellant before learned S.D.J.M., who committed the case to the Court of Session. 3. The plea of defence was one of denial of the prosecution case. 4. In order to sustain the conviction against the appellant prosecution had examined 8 witnesses. No witness has been examined on behalf of the appellant in support of his defence. Learned Sessions Judge on an elaborate re'sume' of the evidence was inclined to record an order of conviction against the appellant and sentenced him to undergo R.I. for life. That is how the appellant being aggrieved with and affected by the order of conviction and sentence has preferred this appeal. 5. Learned counsel for the appellant has raised the following points for consideration in support of his case. (i) Since the trial Court has disbelieved the evidence of P.W. 3, it should not have recorded an order of conviction basing only on the testimony of the other eye-witness, i.e. P.W. 6, particularly, when there is material discrepancy between the medical evidence adduced by P.W. 2 and that of P.W. 6. (ii) The prosecution witnesses did not prove the prosecution story in the manner it took place, therefore, the order of conviction on that ground alone should be set aside. (iii) There is no evidence as to where the incident has actually taken place. P.W. 6 in his evidence has stated that the incident had taken place inside the tank, but the other eye-witness P.W. 3 has not been able to narrate the actual location of the place of incident. 6. While examining the contentions raised by the learned counsel appearing for the appellant, we have minutely examined the testimony of P.W. 6. P.W. 6 in his evidence has deposed that the appellant gave blows with a Tangia (axe) on the deceased Tirtha Naik while he was taking bath. Tirtha fell down in the water and the accused gave 3/4 blows on the neck and legs. P.W. 6 thereafter ran towards the village and reported this to other villagers. In cross-examination nothing has been elucidated from the mouth of P.W. 6. Thereafter, the testimony of P.W. 6 was not shaken by the defence nor any attempt has been made to shatter the credibility of this witness. The stand taken by the appellant is that in case the eye-witness (P.W. 6) is believed, then the evidence of P.W. 2, who examined the deadbody and stated that he did not notice any injury on the legs of the deceased, has to be taken into consideration. The characteristics of the injuries stated to have been inflicted by the appellant on the legs of the deceased and also position of those injuries have not been mentioned by the eye-witnesses. However, when after the first blow the deceased fell down inside the water, it could not have hit such blows on the legs.Even where there is discrepancy between the ocular evidence and the medical evidence, the ocular evidence shall prevail over the medical evidence, because the medical evidence is only an opinion as regards the nature of death of the deceased. From the evidence of P.W. 2 we found that the deceased sustained the following injuries : "1. Cut injury ante-mortem by nature over left side of neck obliquely placed, lower end being near the starno clavicular joint, left side and upper end extended up to mid-line of neck. Size 15 cm. 5 cm x 5 cm. Left sub-clavicle artary and external jugular vein are cut below the injury.

(2.) Left clavicle was cut near the sterno clavicular joint antemortem by nature.

(3.) Upper portion of sternum is also cut.