IMPORTANT POINT
Hurt – Benefit of probation can be granted where injury was minor, death was unrelated to injury, and act was a product of momentary anger during a domestic quarrel.

JUDGMENT

Sibo Sankar Mishra, J.—The present Criminal Appeal is directed against the judgment and order dated 30th November, 1998 passed by the learned Additional Sessions Judge, Bhadrak in S.T. No. 32/151 of 1996, arising out of G.R. Case No.1042 of 1994 (Tihidi P.S. Case No.78 of 1994), whereby the appellant has been convicted under Section 323 read with Section 149 of the Indian Penal Code, 1860, and sentenced to undergo rigorous imprisonment for six months. The remaining co-accused persons were acquitted of all the charges.

2. Heard Mr. D.P. Dhal, learned Senior Advocate, for the appellant and Mr. Raj Bhusan Dash, learned Additional Standing Counsel for the State.

3. The prosecution case, in brief, is that on 28.08.1994 at about 7 a.m., while the informant (P.W.1) Bichitrananda Nayak and his family members were present in their house, the accused persons, being six in number, allegedly formed an unlawful assembly and assaulted the informant and his brother (P.W.2) Rama Chandra Nayak due to a previous land dispute between the parties. During the occurrence, the deceased Maina Nayak, the mother of the informant, came to their rescue, when the present appellant, Muktikanta Nayak, is said to have dealt a lathi blow on her left forehead above the eye-brow, causing a lacerated bleeding injury. She succumbed two days later. However, upon medical examination, the cause of death was found to be due to severe anaemia and heart failure, and not due to the injury sustained. Despite the said fact evolved on record, the police filed the charge sheet for alleged commission of offence under Sections 147/322/506/302/149 of IPC. Accordingly, the accused person was charged.

4. The plea of the accused persons is of complete denial and according to them due to land dispute with the complainant and his brother, this case has been falsely foisted against them.

5. In order to bring home the charges against the accused, prosecution has examined nine witnesses, out of whom P.W.1 is the complainant, P.W.2 is his brother, P.W.3 is the wife of the complainant, P.W.4 was a Gramarakhi and a seizure witness, P.W.5 and 6 were witnesses to the occurrence. P.W.7, the Doctor, who conducted postmortem examination over the dead body of Maina Nayak, P.Ws 8 and 9 were two Investigating Officers of this case.

6. From the side of the defence, no witnesses were examined, but defence exhibited certified copy of the F.I.R. and charge in G.R. Case No. 1422/94 vide Tihidi P.S. Case No.117/94 on the FIR of one Bhagaban Nayak vide Exts. A.B and C to prove that there is a counter case to this case.

7. The learned trial Court, upon a careful appraisal of the oral and documentary evidence adduced by the prosecution and the defence, came to the conclusion that the prosecution had succeeded in proving the charge against the accused beyond reasonable doubt. The Court noted that the testimonies of the prosecution witnesses were consistent and corroborated by the medical and documentary evidence on record. The defence plea was found to be improbable and unsupported by any cogent material. Accordingly, the learned trial Court held that the offence under Section 302 IPC was not established and convicted the appellant only under Section 323 IPC for voluntarily causing hurt. The relevant portion of the aforesaid judgment is extracted herein below for ready reference:—

“10. From Exts. A,B and C it reveals that there is another case between the parties as G.R. 1422/94 in which charge sheet has been submitted against p.w.2 and others u/s 341/323/294/364/34 I.P.C. The argument advanced by the learned counsel for the defence that due to litigation this case has been falsely foisted against them is not sustainable since the previous enmity is a double edged weapon and afther party may utilise the enmity against the other in establishing their case. As I find from the evidence of witnesses regarding the assault on Bichitrananda Nayak p.w.1 by accused Ratikanta, Ajay and Bijay has not been