Kamlesh Naik @ Kamlesh Nayak vs The State Of Jharkhand

C.A.V. on 30.06.2026 Pronounced on 11.08.2026

Heard learned counsel for the parties.

The present appeal is directed against the judgment of conviction and order of sentence dated 27.06.2009 passed by learned Sessions Judge, Gumla in Sessions Trial No. 308 of 2007, whereby and whereunder the appellant has been held guilty for the offence under Section 304 (II) of the I.P.C. and sentenced to undergo R.I. of seven years.

The factual matrix giving rise to this appeal is that one Sukhmain Devi (P.W.-5) lodged a written report stating inter alia that on 14.09.2007, she went to her Mousa’s house at Village Totambi, P.S. – Ghaghra, District - Gumla. Her husband came to bring back her on the next day of Karma Puja on Monday at about 5:00 P.M. and reached her Mousa’s house at that time she was at the house of Bide Naik, when she returned back to the house of her Mousa Shobha Naik, then her husband scolding her and rebuking as to why she has gone to the house of Bide Naik. Upon this informant’s Mousera brother namely, Kamlesh Naik and Gulwa Naik @ Bharat Naik got insighted and started assaulting her husband with lathi. Anyhow she remain stayed to her Mousi’s home along with her husband and managed money for treatment of her husband and brought him to Lohardaga Hospital, where Doctor advised her to go higher center for better treatment. In the way to Ranchi, her husband died. She brought the dead body of her husband to police station and F.I.R. was lodged for the offence under Sections 304/34 of I.P.C.

After completion of investigation, charge sheet was submitted for the aforesaid offence against the appellant Kamlesh Naik and Gulwa Naik @ Bharat Naik.

It is pertinent to mention here that Gulwa Naik @ Bharat Naik has been declared juvenile and only Kamlesh Naik has faced the trial.

After taking cognizance, the case was committed to the court of Sessions, where Sessions Trial No. 308/2007 was registered. The accused denied the charges leveled against him and claimed to be tried.

In course of trial, altogether 08 witnesses were examined by the prosecution. Apart from oral testimony of witnesses, following documentary evidences has been adduced:-

On the other hand, the case of defence is denial from occurrence and of false implication. No oral or documentary evidence has been adduced by the defence.

The learned trial court, after scrutinizing the evidence available on record, recorded findings about guilt of the appellant for the offence under Section 304(II) of I.P.C. and sentenced him to undergo R.I. of 07 years, which has been assailed in this appeal.

Learned counsel for the appellant has submitted that although F.I.R. was lodged against the appellant on the basis of written report of informant-cum-wife of the deceased, but she has been turned hostile and not supported the prosecution story. No other witnesses of fact have corroborated the prosecution story. The I.O. of the case has not been examined. It is further submitted that the injuries caused to the deceased was alleged assault by lathi, but the cut injury was found on the dead body of the deceased, therefore, the manner of assault and weapon used is also not proved.

In alternative, it is submitted that there was no intention or even knowledge of the appellant that the injury caused to the deceased was likely to cause his death. The appellant has remained in custody during trial and post-conviction about 03 months, out of R.I. of 07 years imprisonment awarded to him by the trial court. The appellant has no criminal antecedent and it was first offence, which was happened in a sudden manner without any pre-mediation or even knowledge to likely to cause death of the deceased, who was related to them as brother-in-law. Therefore, the appellant may be extended the benefit of Section 4 of Probation of Offenders Act instead of undergoing substantive sentence of imprisonment awarded by learned trial court.

On the other hand, learned Spl.P.P. appearing for the State has opposed the aforesaid contentions raised on behalf of the appellant and submitted that the appellant has given brutal assault to the deceased as is apparent from the post-mortem report of the deceased that vital part of the body has been selected for giving assault. The spleen of the deceased was raptured, 8^th, 9^th & 10^th ribs also fractured, abdomen cavity was filled with blood and intestinal content, small intestine rupture on two spots. These injuries were responsible for death of the deceased and opined to be ante-mortem in nature, caused by hard blunt substance. The witnesses of facts P.W.-3 Ishwar Naik and P.W.-4 Kalinder Naik visited the deceased in injured condition and asked about injuries sustained by him, the deceased disclosed about the occurrence and assault given by the present appellant to him. Thereafter, deceased died. Therefore, the statement made to other witnesses also comes under the dying declaration of the deceased, which has been rightly relied upon by the learned trial court. The informant was declared hostile because the accused persons are none else, but her mousera brothers. The manner of assault to the deceased also finds corroboration from his post-mortem report. Therefore, there is no illegality or infirmity in the impugned judgment, calling for any interference, which is devoid of merits and is fit to be dismissed.

I have gone through the record the case along with impugned judgment in the light of contentions raised on behalf of both side.

The only point for consideration of this appeal is, as to whether the impugned judgment and order of conviction and sentence suffers from any serious error or law calling for any interference in this appeal or not?

Before imparting my verdict on the above point, it is pertinent to apprise with the testimony of the witnesses examined during trial.

It appears that altogether 08 witnesses have been examined in this case.

P.W.-1 Manmait Devi. She is a hearsay witness and cousin sister of the deceased. She has deposed that offence was committed at Village – Totambi in the month of Bhado after the incident when deceased came to Village Chamru, he told her that Kamlesh and Guluwa assaulted him in village Totambi.

P.W.-2 Bide Naik is the relative of the informant. He has been declared hostile by the prosecution.

P.W.-3 Ishwar Naik has also deposed that the occurrence took place about 11 months ago at the time of Karma Puja. Mahesh Naik was being assaulted at Village – Totambi and on the next date of occurrence, Mahesh Naik came to his village, knowing the occurrence, he went to saw the injured Mahesh Naik and Mahesh Naik told that Kamlesh and Gulua assaulted him. He saw injury on the head of Mahesh Naik. Mahesh Naik was brought to Lohardaga for his treatment, but he died.

P.W.-4 Kalinder Naik. He has also deposed that the occurrence is in the next day of Karma Puja. The deceased went to Totambi Village. He went to bring back her wife where informant’s Mousa and Mousi were residing and on the 3^rd day of Karma Puja, Mahesh Naik returned back in injured condition to Village Chamru. He went to see him, saw injury on his head. Blood was oozing out from his mouth and nostril and also saw the mark of injury on the body of Mahesh Naik. On being asked, he replied that his Mousera Sala namely, Gulwa and Kamlesh assaulted him. On the next day of reaching to Village – Chamru, he was taken to Lohardaga Hospital and in the hospital the doctor found him dead.

P.W.-5 is informant-cum-wife of the deceased. She is sole eye-witness of the offence and declared hostile by the prosecution. She has deposed that occurrence was happened at the time of last Karma Puja. About 08 days before the occurrence, she went to Village – Totambi and on Saturday, on the Karma Puja, her husband came. Due to her residing for several days at Totambi, her husband scolded her and there was some scuffle. She further deposed that she heard that her husband has been assaulted by Kamlesh Naik and Gulua Naik @ Bharat Naik. Her husband received injury on her head and body. On the next day, she came from Totambi to her village – Chamaru. From where, she took her husband to Lohardaga Hospital for treatment, where she died. In her cross-examination, she deposed that her husband was not senseless at Village – Chamaru.

P.W.-6 Janak Naik has not supported the prosecution case.

P.W.-7 Dinesh Naik is a formal witness, who has proved the signature on the inquest report marked as Exhibit-2.

P.W.-8 Dr. R.N. Yadav has conducted autopsy of the dead body of the deceased and proved the post-mortem report as Exhibit-3. He has found following external ante mortem injuries on the person of the deceased:-

The cause of death was due to shock and haemorrhage.

It is well settled that if the informant is hostile, the whole prosecution does not fail, other witnesses and other evidence should be taken note of. In this case, P.W.-3 and P.W.4, who happens to be the local villagers of the deceased and the deceased prior to his death, in injured condition, has told them that Gulwa Naik and Kamlesh Naik have assaulted him. These witnesses have seen the injury on the head of the deceased, which was on vital part of the body. Thus, narrating the incident to P.W.-3 and P.W.-4 by the deceased in inured condition regarding his injury amounts to dying declaration which also got strengthen from other corroborative evidence available on record, therefore, simply because the informant has been turned hostile is not sufficient to over throw the entire prosecution case giving premium of acquittal to the appellant / accused person.

Although the informant became hostile, but in her deposition during trial she has admitted and proved that (i) deceased had scolded her, (ii) later on she heard that Kamlesh Naik and Gulua assaulted her husband, (iii) her husband sustained injury on head and body, (iv) her husband was not unconscious when they reached village Chamaru.

Be that as it may, the position of law is well settled that the deposition of hostile witness cannot be said to be in discard of the testimony of the eye witness, as has been held by Hon’ble Apex Court in the judgment rendered in the case of Govindaraju v. State, (2012) 4 SCC 722, wherein it has been held as under:

In Bhagwan Singh v. State of Haryana [(1976)1 SCC 389: 1976 SCC (Cri)7], it has been laid down that even if a witness is characterized as a hostile witness, his evidence is not completely affaced. The said evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony, if corroborated by other reliable evidence. In Khujji v. State of M.P. [(1991) 3 SCC 627 : 1991 SCC (Cri) 916], he Court after referring to the authorities in Bhagwan Singh [(1976)1 SCC 389: 1976 SCC (Cri)7], Rabindra Kumar Dey v. State of Orissa [(1976) 4 SCC 233 : 1976 SCC (Cri) 566] and Syad Akbar v. State of Karnataka [(1980) 1 SCC 30 : 1980 SCC (Cri) 59] opined that the evidence of such a witness cannot be affaced or washed off the record altogether, but the same can be accepted to the extent it is found to be dependable on a careful scrutiny thereof.

In view of the above discussion and reasons, I find that the impugned judgment of conviction and sentence of the appellant does not suffer from any error of law calling for any interference in this appeal. I do not find any merit in this appeal, which is hereby dismissed.

The appellant is on bail. His bail bond is hereby cancelled.

The appellant is directed to surrender before the concerned Trial Court within two months from the date of this judgment and receive the remaining period of sentence awarded by the learned Trial Court and undergo the remaining period of imprisonment, failing which, the learned Trial Court shall take all coercive steps in securing the attendance of the appellant and sending him under proper conviction warrant to jail custody for undergoing the remaining period of sentence awarded to him.

Pending I.A., if any, stand disposed of.

Let a copy of this judgment along with trial court record be sent back to the court concerned for information and needful.