HATA NAIK AND ANR. Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS Criminal Appeal is directed against the judgment dated 17.03.1997, passed by the Additional Sessions Judge, Khurda, in S.T. Case No. 63/170 of 1995, holding the accused -appellant No. 2 (Chema Naik) guilty of offence under Section 302 Indian Penal Code and accused -appellant No. 1 (Hata Naik) guilty of offence under Section 323 Indian Penal Code and convicting them thereunder.

(2.) THE prosecution case, if brief, is that one Jambeswar Naik, Tareswar Naik and Sadhu Naik of village Rasol possessed a Bagayat in their village, which is closed to the house of accused Hata Naik. They had planted mango, cashew nut and other sapplings in the said Bagayat. On Raja Sankranti day, in the year 1992, Raja Naik (P.W.7) found the live stock of accused Hata Naik to have strayed into the Bagayat and damaged small plants, for which he cautioned accused Hata Naik, who retaliated by abusing him in filthy language. Thereafter, P.W.7 left the place and went to the pond to take his bath. While returning, he found accused Hata Naik still abusing him. He proceeded to his house and changed to dry clothes and thereafter came out of his house to enquire why Hata Naik was still abusing him in obscene language. When P.W.7 reached in front of the house of accused Hata Naik and wanted to know as to why he was unnecessarily being abused, accused Hata Naik raised his voice further. In the meanwhile, deceased Madhu Naik tame to the spot hearing the altercation between P.W.7 and accused Hata Naik. During the altercation, accused Hata Naik went into his house and brought out a bamboo lathi (M.O.III) and dealt a blow to the head of deceased Madhu Naik causing bleeding injury on his head. As a result of that blow, deceased Madhu Naik fell down on the ground, whereupon accused Chema Naik (who is the son of accused Hata Naik), who had come to the spot armed with a Gainti (M.O.I), dealt a blow to the head of the deceased Madhu Naik on its blunt side, who was already lying on the ground due to the lathi blow of accused Hata Naik. As a result of such assault, Madhu Naik died at the spot.

(3.) ON the aforesaid allegation, Govind Naik (P.W.2), who is the son of deceased Madhu Naik, lodged an oral report before the O.I.C., Begunia Police Station, which was reduced into writing and registered as an FIR (Ext. 1/2). On the basis of such report, the O.I.C., Begunia P.S. (P.W.9) took up investigation and on completion of the same, filed charge sheet against the accused persons for committing the murder of Madhu Naik.