DILLIP NAYAK AND ANR. Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS criminal appeal is directed against the judgment and order of conviction dated 17.9.1997 passed by learned Second Addl. Sessions Judge, Berhampur in S.C. Case No. 7 of 1997 convicting both the Appellants Under Section 302/34 I.P.C. and sentencing them to undergo imprisonment for life along with a fine of Rs. 500/ - each and in default to undergo R.I. for two months and further sentencing them to undergo R.I. for a period of six years for offence Under Sections 307/34 I.P.C. and R.I. for three years Under Section 27 of the Arms Act read with Section 34 of the Indian Penal Code, directing that all the sentences shall run concurrently. The Appellants in this appeal challenge the aforesaid conviction and the sentences passed by the court below.

(2.) THE prosecution case in brief is that on 5.5.1995 at about 8.30 P.M. while the deceased Kamadev Nayak and his son Tukuna @ Sukadev Nayak were sitting on the front verandah of their house and the informant Saraswati Nayak (P.W.3) was cutting fish for the purpose of cooking, one Bibhuti Naik of their street came and shouted that Appellant Dillip Naik had come to their street and he is standing near doctor Majhi's clinic. On hearing hullah, deceased Kamadev Naik and his son Sukadev Naik called the sahi people to catch hold the accused Dillip Naik. As no body turned out, Kamadev Naik and his son Sukadev Naik proceeded towards Patasalia Sahi and the wife of the deceased also followed them. When the informant reached at Patasalia Sahi chak, she found Appellants Dillip Naik and Kalu Nayak were coming from Patasali Street Park towards them. On seeing Sukadev, both the Appellants ran towards him and while Sukadev was in front of the house of Lingaraj Patro Appellant Kalu Naik fired towards Sukadev twice from his pistol and Sukadev having sustained bleeding injuries oh his person and fell down there. Thereafter, both the Appellants namely Kalu Naik, Dillip Naik and the absconder accused Hari Das came near the place where Sukadev was lying and gave him kicks and abused him saying "Mor Sala". After some time Sukadev got up and wanted to run away from the place of occurrence, accused Dillip Naik threw a bomb at him. As a result of which he fell down in front of the house of one Nageswara Achari. Then both the Appellants i.e. Dillip Naik and Kalu Nayak fired at the deceased Kamadev from their pistols as a result of which deceased Kamadev fell down infront of the house of Nageswar Achari. Absconder accused Hari Das also threw a bomb at him. Out of fear the informant raised a cry and called the sahi people. When the sahi people came both the Appellants and absconder accused Hari Das ran away towards Patasalia Sahi. Thereafter, Jagannath Naik and Drusta Naik of their street brought one tempo and removed them to the hospital. After some time Police arrived at the spot and the informant lodged oral information about the incident which was reduced into writing by the O.I.C. Kabi Surjya Nagar P.S. On the basis of the said report, Police registered a case Under Sections 307/34 I.P.C. and Under Sections. 25(a)/27 Arms Act/9(b) of the Indian Explosive Act and Section 3(i)(x) of S.C. and S.T. (P.A) Act. The said report was registered as Kabi Surjya Nagar P.S. Case No. 38/1995 under the aforementioned sections. Firstly deceased Kamadev and injured Sukadev were taken to Kabi Surja Nagar P.H.C. Since the condition of Kamadev Naik was very serious, on the requisition of I.O., the doctor P.W.1 recorded the statement of deceased Kamadev Naik. As the conditions of both the injured persons were serious, the doctor referred them to M.K.C.G. Medical College & Hospital, Berhampur for treatment. While both the injured persons were being sent by Jeep to M.K.C.G. Medical College & Hospital, Berhampur, on the way deceased Kamadev Naik succumbed to the injuries and Sukadev Naik was admitted in M.K.C.G. Medical College & Hospital. After the death of injured Kamadev, case turned to Under Section 302 I.P.C. On the next day morning the police came and made inquest over the dead body and sent it for post mortem examination.

(3.) IN order to bring home the charge, prosecution mainly relies upon the dying declaration of the deceased Kamadev Naik recorded by P.W.1 and the evidence of P. Ws. 3, 4, and 5 and the post mortem report. P.W. 6 is the doctor, who gave treatment and P.W. 12 is the doctor who had conducted the post mortem examination over the dead body of the deceased on 6.5.1995 and has found five tattooing injuries on the right side chest, right thigh and right forearm on left axial and on left forearm and one contusion on left elbow joint, two punctured wounds on the right side abdomen at the root of the pennies and one lacerated wound on the abdomen of the deceased. The opinion of the doctor is that all the injuries found on the dead body were ante mortem in nature and the tattooing injuries were caused by blasting effects and the punctured and penetrating wounds were caused by firearm and the cause of death was due to shock and haemorrhage caused by bullet injuries and the time since death was within 18 to 20 hours. The post mortem report marked as Ext. 12. Injured Sukadev Naik was medically examined by P.W.6. On his examination he found two abrasions on his right supra clavicular fossa and on right lumber region and one lacerated injury on the left side neck on the lateral side and one penetrating chest injury on the right side of the chest and a fracture on the right clavicle caused by hard and blunt object and the fractured injuries were grievous in nature and the said report is marked as Ext.5. The opinion of P.W.6 is that penetrating injury is possible by gun shot and on cross examination he opined that the penetrating injury may also be possible by a sharp pointed weapon and according to him, the lacerated injury and the fractured injury found on the person of Sukadev Naik can not be possible by gun shot or by blasting of bomb. P.W.7 is the Professor and H.O.D. of Cardiothoracic Surgery who was the treating physician of injured Sukadev Naik. On perusal of injury report Ext.6, the opinion of the doctors P. Ws.6 and 7 are that the injured Sukadev Naik had sustained injuries on his person and one of such injuries was possible by gun shot.