KRUSHNA NAIK Vs. STATE OF ORISSA

JUDGEMENT

(1.) The above noted DSREF (Death Sentence Reference) has been made under Section 366, Cr. P. C. by learned Addl. Sessions Judge, Bhanjanagar on convicting accused Krushna Naik for the offence punishable under Section 302, I. P. C. as per the judgment delivered on 6-12-2003 in Sessions Case No. 30 of 2001 arising out ol 'Soroda P. S. Case No. 78 of 2000, and sentencing him to death. The said accused has challenged that order of conviction and sentence in JCRLA No. 130 of 2003. On consent of the parties, both the matters were heard analogously and disposed of by this common judgment, which will abide the result of both the cases.

(2.) The factual position reflected in the F. I. R. and as presented by the prosecution, sans unnecessary details, runs as follows : On 22-10-2000 at about 11 A. M. the Informant Radhakanta Behera (P. W. 1) had been to the house of Chakradhar Malik (deceased) and there, during conversation, it was revealed by the deceased that Jhlli, the wife of Banarao Malik had been raped by three persons of village Kesaripatna when she had been to take bath in river Bantuli on the previous day. Jhili, who was present in the house of Chakradhar Malik, also confirmed the allegation of sexual assault on her by three persons and insisted a quick decision in the matter. There it was resolved that they would proceed to Kesaripatna with Jhili for Identification of the offenders and would ask them as to why they sexually violated Jhili. As per the decision, deceased Chakradhar Malik, informant Radhakanta Behera, Prasanna Malik, Jhili and her husband Banaro Malik proceeded towards Kesaripatna. On the way Banaro Malik stayed back to attend call of nature and others including Jhili reaching the village found the three culprits at the village crossing (Chhak) and were Identified by Jhili. When the Informant confronted then with the allegation of rape on Jhili at river Bantuli and that the matter be reported to the police, the accused persons challenged the informant's authority to confront the matter when the victim was silent on that score. At this juncture, suddenly accused Krushna Naik dealt a fist blow to the left cheek of the Informant and asked others to bring a 'Kati to kill him. He picked up a 'Nimmo Medha' (a kind of wooden stick) and dealt a blow to the Informant, which the informant warded off by gliding back and raising his arm, and as a result the blow fell on his right hand. Chakradhar Malik (the deceased) intervened and came over there to rescue the informant Radhakanta Behera and accused Krushna Naik dealt a blow by the 'Medha' to the head of the deceased and the deceased fell down there on the road sustaining injury. In the meantime Arjuna Gouda arrived with a 'Kati' and out of fear the Informant and others rushed back to their village and informant came to the spot with the wife of the deceased and found the deceased lying dead and police had already arrived there. Oral information was lodged at the spot by the informant, which the police recorded (Ext.9) and a case was registered and after investigation charge-sheet was submitted. All the three accused persons faced the trial pleading not guilty and the accused-appellant was found guilty under Section 302, I. P. C. and was sentenced to death by the trial Court, but the two others were acquitted. Throughout the trial accused persons adopted the exonerative plea of complete denial and alleged their false implication in the case. To substantiate the charge, prosecution examined as many as 13 witnesses and exhibited 12 numbers of documents and five numbers of incriminating materials as M. Os. I to V. They also examined two witnesses in their defence and that includes accused Arjuna Gouda (since acquitted).

(3.) Relying on the ratio in the case of State of Tamil Nadu v. Rajendran, AIR 1999 SC 3535 : (1999 Cri LJ 4552), it is stated at the Bar that on consideration of a death reference made under Section 366, Cr. P. C. the High Court, in exercise of the jurisdiction as provided in Section 368 read with Section 386, Cr. P. C., should evaluate the evidence on record afresh to find sustainability of the impugned judgment of conviction. That being the settled principle of law, we adopted the same. P. Ws. 1 to 5 are the eyewitnesses to the occurrence and all of them have stated in definite and clear terms abouf the blow dealt by accused Krushna on the head of deceased chakradhar by means of 'Nimmo Medha' and Chakradhar fell down and died at the spot. P. Ws. 6 and 7 are witnesses to the seizure of the 'Medha' (M. O. I) and seizure of blood-stained earth and sample earth by the Investigating Officer. P.W. 9 is the doctor who conducted postmortem examination on the dead body of the deceased and proved that report (Ext. 4), P. W. 10 is the other Doctor who examined the injured informant, P. W. 11 is a Police Constable who accompanied the dead body sent for post-mortem examination, P. W. 12 is the Investigating Officer and P. W. 13 is the S. D. P. O., Bhanjanagar, who submitted the charge-sheet.