Partly allowed

Subash Nayak v. State

Orissa HC14 Sept 2023CRLA/430/2005

Case brief

AI extract

What is this about?

The High Court allowed part of the appeal against conviction for murder. It distinguished a Supreme Court precedent regarding the fitness of the accused and held that the appellant, a young fit man, committed voluntarily causing hurt by striking an elderly deceased, which caused death. The conviction for murder was set aside and replaced with conviction for voluntarily causing hurt.

What did the court decide?

Impugned judgment convicting appellant under s.302 IPC set aside; Conviction substituted with offence under s.323 IPC; Sentence to one year rigorous imprisonment and fine of Rs.1,000.

Subash Nayak Vs State — Murder and Culpable Homicide | Orissa HC (2023)

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Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 03-Oct-2023 10:54:22

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IN THE HIGH COURT OF ORISSA, CUTTACK

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CRLA No.430 of 2005

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An appeal under section 374 Cr.P.C. from the judgment and order dated 27.09.2005 passed by the Additional Sessions Judge, Khurda in S.T. Case No.26/229 of 2002.

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-------------------------

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Subash Nayak ....... Appellant
-Versus-
State of Odisha ....... Respondent
For Appellant: - Mr. Diptiranjan Mohapatra
Advocate
For Respondent: - Mr. Priyabrata Tripathy
Addl. Standing Counsel
-------------------------
P R E S E N T:
THE HONOURABLE MR. JUSTICE SANGAM KUMAR SAHOO
AND
THE HONOURABLE MR. JUSTICE SIBO SANKAR MISHRA

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----------------------------------------------------------------------------------------------------------------------Date of Hearing and Judgment: 14.09.2023 -----------------------------------------------------------------------------------------------------------------------

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By the Bench: The appellant Subash Nayak faced trial in the Court

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of learned Additional Sessions Judge, Khurda in S.T. Case No.26/229 of 2002 for commission of offence punishable under

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section 302 of the Indian Penal Code (hereinafter ‘I.P.C.’) on the

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 03-Oct-2023 10:54:22

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accusation that 04.04.2002 at about 9.30 p.m. at Chhanagiri under Jankia police station, he committed murder of Ainthu Naik (hereinafter, ‘the deceased’), the grandfather of the informant Babuli Naik (P.W.3).

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The learned trial Court vide impugned judgment and order dated 27.09.2005 has been pleased to hold the appellant guilty for the offence punishable under section 302 of the I.P.C. and sentenced him to undergo imprisonment for life.

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Prosecution Case :

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The prosecution case, as per the first information report (hereinafter ‘F.I.R.’) presented by Babuli Naik (P.W.3) before the Officer in-charge of Jankia police station on 05.04.2002, is that on 04.04.2002 at about 9.30 p.m., the appellant was quarrelling with one Kalu Mohanty (P.W.12) and at that time P.W.3 was proceeding towards Mangala Thakurani temple and he prohibited the appellant not to quarrel and dragged him towards his house. However, when the appellant again proceeded towards the spot to create disturbance with P.W.12, P.W.3 along with others tried to restrain the appellant but the appellant abused them in filthy language and complained before them that they were not taking him to attend the marriage feast in the village and saying so, the appellant dealt a

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 03-Oct-2023 10:54:22

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fist blow to P.W.3. The persons present there tried to separate the appellant from P.W.3 whereafter P.W.3 proceeded to call Grama Rakhi and came back to the spot with Grama Rakhi. At that point of time, the deceased, who was the grandfather of P.W.3, on receipt of the message that disturbance was going on, came to the spot and confronted the appellant as to why he was quarrelling with P.W.3. It is further stated in the F.I.R. that all of a sudden, the appellant dealt fist blows on the chest and root of the ear of the deceased, as a result of which he fell down on the

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ground. The wife and other family members of the deceased brought him to the house and at that point of time, the deceased was telling that the appellant dealt fist blows on his chest and root of the ear for which he suffered head reeling and lost his vision. Thus, he told his family members to shift him to the hospital. As there was no auto rickshaw available in the village, P.W.3 and others brought an auto rickshaw from Jankia Bazar, but by that time, the deceased had already expired. Thereafter, P.W.3 came to the police station and lodged the F.I.R. On the basis of such F.I.R, Jankia P.S. Case No.43 dated 05.04.2002 was registered under sections 341/294/323/302 of the I.P.C. against the appellant.

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P.W.15, Umesh Chandra Garanaik, the Officer in-

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charge of Jankia police station after registration of the case, took

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 03-Oct-2023 10:54:22

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up the investigation and during the course of investigation, he examined P.W.3, visited the spot and prepared the spot map (Ext.4), examined other witnesses, held inquest over the dead body of the deceased and prepared the inquest report (Ext.1) and sent the dead body of the deceased for post mortem examination, which was escorted by the constables and the relatives of the deceased. The wearing apparels of the deceased were seized as per seizure list Ext.6. The I.O. received the post mortem examination report (Ext.3) and the doctor Kailash

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Chandra Pradhan (P.W.13) attached to District Headquarters Hospital, Khurda, who conducted the post mortem examination over the dead body, opined that the two injures noticed on the person of the deceased are ante mortem in nature and cause of death may be due to assault on the left ear causing stimulation of the vagus nerve, which ultimately resulted in heart attack. The appellant was arrested on 05.04.2002 and forwarded to the Court. The I.O. sent the exhibits for chemical examination and on 29.07.2002, he submitted the charge sheet against the appellant under section 302 of the I.P.C.

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Framing of Charges :

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After submission of charge sheet, the case was committed to the Court of Session after complying due

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 03-Oct-2023 10:54:22

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formalities. The learned trial Court framed charges against the appellant as aforesaid and since the appellant refuted the charges, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt.

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Prosecution Witnesses & Exhibits :

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During the course of trial, in order to prove its case,

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the prosecution has examined as many as fifteen witnesses.

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informant who is a witness to the inquest over the dead body of

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the deceased and he proved the inquest report marked as Ext.1.

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witnesses to the occurrence who supported the prosecution case and stated about the specific overt act committed by the appellant in assaulting the deceased.

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case for which they have been declared hostile by the prosecution.

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P.W.6 Laxman Sahoo is a hearsay witness and stated

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that the appellant assaulted the deceased for which he succumbed to the injuries.

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 03-Oct-2023 10:54:22

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P.W.7 and P.W.11 are the witnesses to the inquest

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over the dead body of the deceased and stated to have seen the bleeding injures on the root of the ear and back of the deceased.

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P.W.8, P.W.9 and P.W.10 are the independent

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witnesses and stated that the appellant gave fist blows on the left ear and chest of the deceased as a result of which the deceased died. They further stated that they shifted the deceased to his house and searched for an auto rickshaw to take

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him to hospital but the deceased died before he could be taken

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to the hospital.

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P.W.13 Dr. Kailash Chandra Pradhan was the Asst.

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Surgeon attached to District Headquarters Hospital, Khurda who conducted the post mortem examination over the dead body of the deceased and he proved his medical report vide Ext.2.

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Officer of the case.

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The prosecution exhibited seven documents. Ext.1 is

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the inquest report, Ext.2 is the F.I.R., Ext.3 is the post mortem report, Ext.4 is the spot map, Ext.5 is the dead body challan, Ext.6 is the seizure list and Ext.7 is the zimanama.

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 03-Oct-2023 10:54:22

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Defence Plea :

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The defence plea of the appellant is one of denial and

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it was pleaded that a false case has been foisted upon him. Defence has neither examined any witness nor exhibited any document.

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Findings of the Trial Court:

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The learned trial Court after assessing the oral as well as documentary evidence on record came to hold that on account of blow on the left ear, the vagus nerve of the deceased got stimulated which caused heart attack and ultimately resulted in the death of the deceased and therefore, it is a case of homicidal death. It has been further held that the evidence of the witnesses i.e. P.Ws.2, 3, 4, 5 and P.W.15 indicate that the death of the deceased was due to the act of the appellant and it was also held that in all probabilities, the appellant must be having the knowledge that such blow on the vital part like the root of left ear would cause the death of the deceased in ordinary course of nature as he was an elderly person. Despite having that knowledge, the appellant assaulted without any provocation and the deceased, who was then aged about 65 years, died a few minutes later. Accordingly, the trial Court found the appellant guilty under section 302 of the I.P.C.

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 03-Oct-2023 10:54:22

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Contentions of the Parties:

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Mr. Diptiranjan Mohapatra, learned counsel

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appearing for the appellant contended that though the evidence of the eye witnesses are consistent that the appellant gave two fist blows to the deceased, one on the chest and the other on the root of the ear, for which the deceased fell down on the ground

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but there is absence of any material to show that there was any premeditation on the part of the appellant to commit such crime and it appears that coming to know about the disturbance, when

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the deceased came to the spot and tried to intervene and inquired as to why the appellant was abusing in obscene language, on being provoked, the appellant gave two fist blows to the deceased and therefore, under no stretch of imagination,

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it can be said that the act of the appellant would come within the purview of ‘murder’ and it can at best be a case of under section 323 of the I.P.C., as the doctor (P.W.13), who conducted the post mortem examination has noticed one abrasion on the chest,

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one bruise on the left cheek below the ear and he specifically stated that he did not find any internal injury except one small haematoma in the left cheek. Though the doctor stated that injuries were ante mortem in nature and the cause of death might be due to injury on the left ear causing stimulation of

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 03-Oct-2023 10:54:22

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vagus nerve which ultimately led to heart attack but in the crossexamination, he has stated that trauma also includes emotional shock, which can be caused due to irritation, excitement and frightening and stimulation of vagus nerve could not be identified during internal examination and he guessed that there was stimulation of vagus nerve. Learned counsel further submitted that since the nature of injuries caused to the deceased would not come within the definition of ‘grievous hurt’ as has been defined under section 320 of the I.P.C., it can at best be a case

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under section 323 of the I.P.C.

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Mr. Priyabrata Tripathy, learned Additional Standing Counsel appearing for the State of Odisha, on the other hand, supported the impugned judgment and contended that a number of witnesses have stated as to how the occurrence took place and about the specific over act committed by the appellant in assaulting the deceased. He further submitted that the Court cannot lost sight of the fact that the deceased was an old man

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aged about sixty five years and the part of the body on which the blow was given cannot be said to be a non-vital. Further, he submitted that the appellant, being a young and healthy man, fist blows given by him on the vital part of the body of the deceased resulted in causing haematoma and stimulation of

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 03-Oct-2023 10:54:22

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vagus nerve and ultimately resulted in the heart attack, as opined by the doctor (P.W.13). Learned counsel emphasized that the immediate death of the deceased after the occurrence goes a long way to show the seriousness and gravity of the blow given by the appellant. Learned counsel further submitted that the learned trial Court was justified in convicting the appellant under section 302 of the I.P.C. and therefore, the appeal should be dismissed.

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Post-mortem finding :

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The doctor (P.W.13) who conducted the post mortem examination noticed the following injuries:

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External injuries. “i) Abrasion of size 3” x 2” over the middle of the chest, ii) Bruise of size 3” x 2” on the left cheek below the ear.”

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On dissection, P.W.13 found small tear on the external ear. He further opined that the injuries were ante mortem in nature and

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cause of death may be due to stimulation of the vagus nerve due to assault on the left ear, which ultimately caused heart attack. A blow on the left ear can cause such death since vagus nerve connects the heart as well as the ear. He further stated that he did not find any internal injury except one small haematoma in

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 03-Oct-2023 10:54:22

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the left cheek and further stated that trauma includes emotional shock, which can be caused due to irritation, excitement and frightening. Stimulation of vagus nerve could not be identified during internal examination. He further submitted that he guessed there was stimulation of vagus nerve.

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Analysis of the evidence of the eye-witnesses :

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There is no dispute that P.Ws.2 and 3 deposed as eye-witnesses to the occurrence. P.W.5 also stated about a part

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of the occurrence.

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P.W.2 Prabhakar Nayak has stated that the appellant

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was quarrelling with Kalu Mohanty (P.W.12) and at that point of time, P.W.3 was passing by that road and he took the appellant to his house by dragging him along with Ashok Nayak (P.W.5) and Ramesh Nayak (P.W.4) and left him at his house but the appellant again returned to the spot. Coming to know about the quarrel, the deceased came to the spot and enquired from the appellant near Trinath Temple as to why he was abusing in obscene words. At this, the appellant violently dealt fist blows on the chest and root of the ear of the deceased, due to which the deceased fell down. Hearing hullah, the family members of the deceased and others arrived at the spot and lifted the deceased inside his house where he told them that due to assault by the

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 03-Oct-2023 10:54:22

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appellant, he was unable to see anything and suffering from head reeling and the deceased further told them to take him to the hospital. P.W.2 further stated that no auto rickshaw was available in the nearby locality for which they went to Jankia to bring an auto rickshaw to shift the deceased to the hospital. However, by the time they arranged an auto rickshaw and reached their village, they found the deceased dead. After carefully gone through the cross-examination of P.W.2, we find that the evidence has not been shaken and no material has been

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brought out on record to disbelieve the evidence of P.W.2.

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P.W.3 Babuli Nayak, the informant has not only

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stated about the fist blows given by the appellant to him but also stated about the dying declaration made by the deceased that

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due to assault of the appellant on his chest, head and root of the ear, his head was reeling and he was unable to see due to loss of vision. In the cross-examination, he stated that the appellant was complaining as to why they were not inviting him to the

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community feast and the band party. Though the appellant was taken to his house but he did not stay inside the house and came

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out and started quarrelling with them again, for which P.W.3 went to inform the Grama Rakhi about the incident. Nothing

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 03-Oct-2023 10:54:22

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further has been elicited in the cross-examination to disbelieve the evidence of P.W.3.

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P.W.5 Ashok Nayak has stated that there was a hot exchange of words between the appellant and P.W.3 and he along with other persons took the appellant to his house and left him there and they went to see yatra. When they returned, they found the deceased in a serious condition and thus, his evidence is silent as to how the assault took place on the deceased.

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Thus on analysis of the aforesaid evidence of the witnesses, it appears that P.W.2 and P.W.3 are material witnesses and circumstances under which the appellant assaulted the deceased has been stated by P.W.2 and dying declaration part has been stated by both the above witnesses.

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Against such backdrop, it appears that there was no previous enmity between the appellant and the deceased. There was no premeditation, the occurrence occurred all of a sudden when the deceased came to the spot and intervened and questioned the appellant as to why he was abusing in obscene language. It further appears that no weapon was used for assaulting the deceased and only fist blows were given on the chest and root of the ear of the deceased.

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 03-Oct-2023 10:54:22

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In the case of Jaswinder Singh (dead) through

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Legal Representative -Vrs.- Navjot Singh Sidhu and others

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reported in (2022) 7 Supreme Court Cases 628 , the informant Jaswinder Singh and one Avtar Singh (P.W.3 and P.W.4 therein respectively) were travelling with the deceased in a Maruti car driven by the deceased. A dispute arose on the right of way between the accused and the deceased whereupon the accused-respondent no.1 Navjot Singh Sidhu came out of the vehicle, pulled out the deceased from his vehicle and inflicted fist

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blows. Though the informant made endeavour to intervene but

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the second accused (respondent no.2) got down from the vehicle and gave fist blows to the informant. The car keys of the deceased’s car were removed by the accused and they fled from the scene of occurrence. P.W.3 and P.W.4 took the deceased in a rickshaw to the hospital where the doctors declared the deceased to be dead. The post mortem examination report indicated two external injuries, one on the temporal region and another on the

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left knee of the deceased, and both were abrasions. The doctor opined that the second injury could have resulted due to the fall and, thus, it is most unlikely that a person would simultaneously aim at the head and also the knees of the victim while giving fist blows. The cause of death was opined due to cardiac failure and on the opening of the skull, subdural haemorrhage was present

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 03-Oct-2023 10:54:22

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over the left parietal region and brain. It was the haemorrhage which caused the death of the deceased and not the cardiac arrest. Here, the Hon’ble Supreme Court was considering the second review petition inasmuch as while deciding the appeal, the earlier Bench found the respondent no.1 Navjot Singh Sidhu guilty under section 323 of the I.P.C. for causing hurt to the deceased Gurnam Singh and fine of Rs.10,000/- (rupees ten thousand) was imposed on him since the incident was thirty years old and there was no previous enmity between the parties

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and no weapon was used. The Hon’ble Supreme Court in the aforesaid judgment of Jaswinder Singh (supra) held that some material aspects, which were required to be taken note of, appear to have been somehow missed out at the stage of sentencing, such as the physical fitness of the respondent no.1 who was an international cricketer with impressible height and well-built body and aware of the force of a blow that even his hand would carry. The blow was not inflicted on a person identically physically placed person, rather on a 65-year old man, more than double his age. The Court held that the respondent no.1 could not say that he did not know the effect of the blow or plead ignorance on this aspect. It is not as if someone has to remind him of the extent of the injury which could be caused by a blow inflicted by him. In the given circumstances, the Court

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 03-Oct-2023 10:54:22

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was of the considered view that tempers may have been lost but then the consequences of the loss of temper must be borne. In fact, the Court had been indulgent to some extent in ultimately holding respondent no.1 guilty of an offence of simple hurt under section 323 of the I.P.C. However, the Court opined that fist blows can also be taken as fatal in certain cases, especially when the assault is caused by extremely physically fit persons like boxer, wrestler or cricketer. Further, when such well-built person assaults an aged person on vital organ like head, it was held that

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no indulgence can be shown at the stage of sentence by only imposing sentence of fine and letting the accused go scot-free without imposition of any sentence of imprisonment and accordingly, the Hon’ble Supreme Court thought it appropriate to impose sentence of rigorous imprisonment for a period of one year in addition to the sentence of fine already imposed.

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Conclusion :

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Considering the factual scenario of this case, we

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have already found that there was no previous enmity between the appellant and the deceased and there was no premeditation to commit the crime. The deceased was not initially present at the spot when the quarrel started but he came subsequently and tried to interfere by asking the deceased why he was abusing in obscene words which in all probability caused provocation in the

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 03-Oct-2023 10:54:22

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mind of the appellant who dealt fist blows on the chest and root of the ear. Having regard for the nature of the injury caused to the deceased and taking into account the fact that no weapon has been used by the appellant for causing such injury, we are of the considered view that the act of the appellant would come within the purview of ‘voluntarily causing hurt’ punishable under section 323 of the I.P.C.

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Accordingly, the impugned judgment and order of conviction of the appellant under section 302 of the I.P.C. is

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hereby set aside, instead he is convicted for the offence

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punishable under section 323 of the I.P.C. and sentenced to rigorous imprisonment for one year and to pay a fine of Rs.1,000/- (rupees one thousand), in default, to undergo simple imprisonment for a further period of one month.

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In the result, the JCRLA is partly allowed.

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It appears from the record that the appellant was initially taken into judicial custody on 05.04.2002 and directed to

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be released on bail as per order dated 28.10.2002. After pronouncement of the judgment, he was taken into custody on 27.09.2005 and subsequently, he was granted bail by this Court vide order dated 12.05.2006 and as such the appellant has already undergone not only the substantive sentence imposed by us today but also the default sentence and therefore, his further

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 03-Oct-2023 10:54:22

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detention in this case is not required. The appellant, who is on bail by virtue of the order of this Court, is discharged from liability of his bail bonds. The personal bonds and the surety bonds hereby stand cancelled.

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The lower Court records with a copy of this judgment be sent down to the learned trial Court forthwith for information.

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..........................
S.K. Sahoo, J.
..........................
S.S. Mishra, J.
Orissa High Court, Cuttack
The 14 th September 2023/Sipun

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Subash Nayak v. State

Case brief

What is this about?

What did the court decide?

Subash Nayak v. State

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

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Case details

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