STATE OF ORISSA versus DIBAKAR NAIK AND ORS.

Citation: [2002] 3 S.C.R. 307 · Decided: 23-04-2002 · Supreme Court of India · Bench: R.P. SETHI · Disposal: Case Partly allowed

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Judgment (excerpt)

r 
STATE OF ORISSA 
A 
v. 
DIBAKAR NAIK AND ORS. 
APRIL 23, 2002 
[R.P. SETHI AND DORAISWAMY RAJU, JJ.] 
B 
t 
Penal Code, 1860--Sections 302, 304, 376 rlw 34 and Sections 323, 
341, 342, 347, 448 and 506-0ffences-A//egation- Trial Court convicted 8 
accused ulss.302 and 376 rlw 34 and for other minor offences-Other accused C 
convicted for minor offences-Acquittal of the 8 accused by High Court-On 
appeal, acquittal of the accused u!ss 302 and 376 rlw s.34 challenged-The 
8 accused specifically mentioned in FIR with allegation of murder and rape--
Overt act attributed only to 4 of them-Held, the 4 accused rightly convicted 
u/s 376 r/w 34-Conviction u/s 302 rlw 34 not justified since the nature of 
injuries indicated that they had not intended to cause her death-Jn view of D 
the manner of committing rape, they are assumed to be having knowledge that 
;._ 
the action was likely to cause her death-Hence convicted u/s 304(/I) rlw 
.,. 
34-0ther accused acquitted for the offences of murder and rape-Conviction 
for minor offences upheld 
Criminal Trial 
Post incident conduct-Evidentiary value-Appreciation of 
Benefit of doubt-Discrepancy in investigation-Jn such event benefit 
not given to the accused 
Constitution of India, 1950-Article 136-Appeal-Finding of fact-
Interference with-Held, generally not permissible-But where such finding 
perverse, based on inadmissible evidence and result of imaginative hypothesis 
and conjectures, interference is permissible. 
E 
F 
Appellant-accused were prosecuted for murder and rape of the decease<I G 
at riverbed and for having assaulted her and PWl on two earlier occasions 
i.e. at bus stand and party office. Prosecution case was that accused who bore 
enemity towards the deceased and her husband (PWl) wanted them to leave 
the village. When the deceased, her husband and infant were fleeing to save 
307 
H 
308 
SUPREME COURT REPORTS 
[2002] 3 S.C.R. 
A their lives, accused gang raped and murdered her. PWl had seen the assault 
on his wife with the help of torch light. He managed to save his and the life of 
the infant. After the incident he had met PWlO and PW13 to whom he had 
narrated the incident. He made repeated efforts to report the incident in the 
night of the incident, but was unsuccessful due to non co-operation of 
investigation officials, and he could manage to lodge FIR one day after the 
B incident. On earlier occasions regarding assault on PWl and modesty of the 
deceased as also commission of theft in their house, FIR was lodged. Accused 
1, 4, 10 and 12 were alleged to be responsible for the incident at the bus stand 
and the office. 
C 
Regarding incident at the river bed, names of Accused 2, 3, 5, 6, 7, 8, 9 
and 11 were specifically mentioned, but no overt acts were attributed to 
Accused 2, 3, 8 and 9. Post Mortem Report showed signs of violent forced 
intercourse. During investigation of the case there was frequent changes of 
the investigating officers. 
D 
Trial Court convicted Accused 2, 3, 5, 6, 7, 8, 9 and 11 for the offences 
punishable u/ss. 376 and 302 r/w Section 34 IPC. Accused 1, 4, 10 and 12 
were convicted for minor offences punishable u/ss 448, 323, 342, 347 and 506. 
The Court found that the investigation was purfunctory. 
On appeal High Court acquitted the accused of the charges u/ss 376 
E and 302 r/w Section 34, holding that evidence of PWl was not reliable as he 
had not disclosed the names of the accused to PWs 10 and 13 whom be had 
met immediately after the incident that since his evidence was contradicted 
by his own testimony as well as by medical evidence; that since the torch which 
he claimed to have carried on the night o( the incident was not seized from 
F 
him; and since PWl was coward he did not come to rescue of his wife. The 
appeal of the accused convicted for minor offences was dismissed upholding 
their conviction. The appeal of the State against acquittal of some of the 
accused with regard to minor offences and offences of murder and rape, was 
also dismissed. Hence the present appeal. Accused 1, 4, 10 and 12 had already 
undergone their sentence. Accused 3 and 6 had died during pendency of the 
G appeal. Hence the appeal abated against them. 
Partly allowing the appeals, the Court 
HELD: 1.1. A:-5, A-6, A-7, A-11 are held guilty for the commission of 
offences punishable under Section 304 (II) read with Section 34 of the Indian 
H Penal Code besides the commission of offence punishable under Section 376 
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STA

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