SANKAR NAIK Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order dated 14. 12. 1992 passed by the 1st Addl. Sessions judge, Berhampur in Sessions Case No. 40/ 90 (161/91 GDC) wherein while acquitting the accused appellant and the co-accused of the offence under Section 302/34 Indian penal Code he found the accused-appellant guilty of the offence under Section 323 of indian Penal Code and convicted and sentenced him thereunder to undergo R. I. for six months with direction that the period of detention as U. T. P. shall be set off.

(2.) IT is an admitted fact that deceased benu Naik, was the son-in-law and accused-appellant and the juvenile delinquent lochan are the sons of accused Balaram naik (since acquitted ). The case of the prosecution in nub is that on 1. 6. 1991 at about 8 a. m. when deceased Benu Naik asked for repayment of the money to accused Balaram which he had owed to him, the latter told him to come to his house and accordingly as he went there accused Sankar Naik and lochan refused to make payment on the pretext that they had no money. At this the deceased got annoyed and abused them. Being flared up, accused-appellant Sankar naik and the juvenile delinquent Lochan naik holding lathi and axe respectively emerged out of their house and accused appellant Sankar inflicted a lathi blow near the eye-brow and Lochan an axe blow on the right hand of Benu Naik causing profuse bleeding. During that time accused balaram was standing nearby being armed with a lathi. Seeing the incident PW1, the informant rushed to the spot, and he along with PW2, carried Benu Naik to his house and since there was profuse bleeding from the hand of the injured and it did not stop, they immediately took him to Tarasingi hospital, but on the way he succumbed to the injuries at about 10 a. m. PW1 orally reported the incident before the O. I. C. of tarasingi police station, who reduced the same into writing. As the allegation contained in the F. I. R. revealed a cognizable case under Section 302/34 Indian Penal code the O. I. C. registered it thereunder and took up investigation. In course of investigation, he visited the spot, examined the witnesses, sent the dead body of Benu Naik to morgue for autopsy, arrested the accused persons, forwarded them to Court, and after completion of investigation finding a prima facie case, submitted charge-sheet under Section 302/34 Indian Penal Code against them, under which they faced trial.

(3.) THE plea of the accused persons was complete denial. Accused Balaram further took the plea that Dwari Naik (PW1) Churia naik, Chandal Naik, Kirtan Naik (PW2) and deceased Benu Naik all being armed with lathi and axe went to his house and assaulted him and in the process the deceased benu Naik sustained injuries, to which he succumbed subsequently on the same day.