SUDHAKAR NAIK Vs. STATE

JUDGEMENT

(1.) THE appellant, a Lancenaik in the First Battalion of the Orissa Military Police, Charbatia, has preferred this appeal against his conviction under Sections 302 of the Penal Code and under Section 25 (a) of the Arms Act and the sentence of life imprisonment imposed under the former and sentence of rigorous imprisonment for one year imposed under the latter; the sentences directed to run concurrently.

(2.) THE prosecution case is that appellant Sudhakar was serving as a Lance -naik in the First Battalion of the Orissa Military Police Station at Charbatia and Maguni, the deceased, was working as a Havildar. The appellant was occupying the first floor of a block of quarters and the deceased was occupying the ground floor with his wife (p. w. 3), mother and a baby. Three other Sepoys were also occupying quarters on the ground floor. Some months prior to the date of occurrence, some cakes had been brought by the father -in -law of the appellant and were distributed amongst the occupants of the block. At that time, it was commented that the accused was a Harijan. The deceased is said to have observed that the accused was a 'Pan' by caste. Exception had been taken by the accused to such comments and there was an altercation on account of this a month before the occurrence. About one and a half months before the occurrence, the deceased had purchased a chicken from a man and had paid Rs. 7.00 towards the price, the balance of Rs. 0.75 was to be paid by him. He had asked the vendor to collect the same from him at the canteen where he was on duty. The vendor, however, instead of asking for the balance price from the deceased, approached the wife of Maguni (P. W. 3) on various occasions. When P. W. 3 complained to the deceased, he is said to have observed why the vendor, a Pan by caste, was approaching her instead of him. The accused who was near about is said to have taken exception to this comment and had given threats. The prosecution has further alleged that some time before the occurrence, the female inmates of the block were stitching cloth mattresses and the mattresses were spread on the common passage. At that time, the accused came with a cycle and wanted to pass through the Common passage. There the wife of Maguni is said to have told that the accused could pass with his cycle over the mattresses as those would be washed in any case. The accused is alleged to have observed that as he was a Pan by caste he should not touch the mattresses. Then some discussions had ensued.

(3.) TWENTY witnesses were examined by the prosecution. P. W. 1 is the Assistant commandant who arrived at the spot immediately after the occurrence. From his evidence it is gathered that a great coat and the rifle bearing No. 399 were lying on the ground close to the body of the deceased. He has said that guns were issued to different Sepoys of the Battalion and the details were mentioned in the Register maintained for the purpose. When a great coat used to be issued to a Sepoy or Havildar, his number is used to be noted on it. The spot was at a distance of 200 yards from his office and by the time he reached the place, many people had gathered. P. W. 2 is the Officer -in -charge of Choudwar Police Station who received the report sent by P. W. 1 and drew up the First Information Report. He did not participate in the investigation, P. W. 20, the Circle Inspector having taken up investigation of the case. P. W. 3, Sabitri, is the wife of Maguni. She has spoken about the ill -feelings between the accused and the members of the family of Maguni. She has further stated that towards evening she found the accused proceeding towards his quarters holding a gun inside his coat. A portion of the gun was visible. P. W. 4 is the doctor who conducted the post -mortem examination. According to him, Maguni died of the gun -shot. P. W. 5 was the Havildar of First Battalion of the Orissa Military Police in charge of Hanger No. 2 at the relevant time. Under him, there were one Lance -naik and three Sepoys. The accused was the Lance -naik and out of the three Sepoys, Banambar and Laxman have been examined as P. Ws. 8 and 9 respectively. He has substantially corroborated the prosecution case. He has stated that he specifically asked the accused not to proceed to the Kote to return the rifle as it was already 6 p.m. and the Kote would be closed. He was absent from the Hanger for a short while and when he returned around 7 p.m., he found the accused absent and rifle No. 399 was missing. He was informed by the Sepoys present there that the accused had left with the rifle. He has deposed that since by 9 p. m. the accused did not return to the Hanger, he got worried. At that time, the Commandant arrived at the place and enquired about the accused. Thereafter, the bedding of the accused in the Guard -room was searched and 18 rounds of bullets were recovered. A sepoy was used to be given 20 rounds of bullets which were kept in a pouch. He has further stated that each bullet bore a number and the year of manufacture. While issuing bullets, their numbers and the year of manufacture and the person to whom those are issued are noted in the Register. P. W. 6 is a constable, who identified the dead body of Maguni to the doctor, P. W. 4. P. W. 7 identified a cycle lying in front of a hotel near Gandhi Chowk about 1 -1/2 miles away from the quarters of the Sepoys. He is also a witness to the seizure of the cycle by the police under seizure list Ext. 3. P. Ws. 8 and 9, the Sepoys, were on duty at the Hanger along with the accused and they have substantially supported the prosecution case. P. W. 10 is a Jamadar who was on duty at the Hanger at the relevant time. He is a witness to the seizure of the pouch which contained the 18 rounds of bullets and the bayonet. P. W. 11 is the quartermaster Havildar who assisted the Kote Muharrir. He has deposed that rifle with a specified number is assigned to each member of the company. Rifle No. 404 had been issued to the accused and rifle No. 399 to Maguni. Three to four months before the occurrence, the deceased had been assigned work in the Canteen. So, rifle No. 399 issued to him was in the Kote. He has said that as per the rules, Kote Muharrir used to hand over rifle assigned to a particular Sepoy and make entry in the issue register. P. W. 12 is a Sepoy who worked as the Kote Muharrir. He speaks about the practice and procedure followed while issuing arms and ammunitions to the members of the force. P. W. 13 is a Sepoy who had seen the deceased in the evening of the date of occurrence. P. W. 14 is the Subedar, viz., the Company Commander. He has deposed that he was in overall charge of arms and ammunitions. The Kote ordinarily remained open from 6 a. m. to 6 p. m. In case of an emergency, the Kote could be opened after 6 p. m.; but only in his presence or in the presence of the Assistant Commandant or Commandant. When the rifle used in the commission of the offence was detected to be Rifle No. 399, the Commandant, the Kote Muharrir and he went to the Kote room for verification and they found that rifle No. 399 was missing from the Kote and rifle No. 404 was in its place. They further found that rifle No. 399 had not been issued to the deceased as he had been assigned civil work in the Canteen four months before the occurrence. Thereafter he accompanied by the Commandant and the Sepoys proceeded to the Guard -room. The bedding of the accused was searched and 18 rounds of bullets kept inside a pouch were recovered. He has further deposed that the bullet fired from the gun after passing through the body of the deceased had struck the door leaf of the room occupied by Purusottam Naik, P. W. 17. In his presence, three live bullets and one empty shell were seized from rifle No. 399. The great coat which was lying near the dead body was also seized. A bayonet with scabbard of rifle No. 399 was found lying by the side of the bath -room of Sepoy Purusottam Naik (P. W. 17), a little away from the place of occurrence. The scabbard has been marked as M. O. V. The empty shell bore the manufacturing year 1966. Out of the three live bullets, the year of manufacture of one was 1966 and the other two, 1973. The 18 bullets seized from inside the pouch bore the year of manufacture 1973. He has further deposed that a register was maintained showing issue of bullets, year of manufacture and the person to whom issued. P. W. 15 is the Assistant Commandant. P. W. 16 is a police officer who forwarded the material objects to the Chemical Examiner. P. W. 17 is Purusottam Naik, a co -occupant of the block occupied by the accused and the deceased. He speaks about the recovery of the broken lead from the door leaf of his quarters and the bayonet with the scabbard. P. W. 18 is the Scientific Officer, Forensic Science Laboratory, Rasulgarb. He is of the opinion that the cartridge of 1966, the empty shell whereof was seized from the rifle, was fired from rifle No. 399. P. W. 19 is another Scientific Officer of the Forensic Science Laboratory. P. W. 20 is the Circle Inspector who conducted the investigation. He has said that he seized a greatcoat M. O. XII and the live cartridge of the year of manufacture 1970 and the live cartridges of the year of manufacture 1973 etc.