Orissa High Court
Pramod Kumar Khadamsingh And Ors. vs State Of Orissa on 5 February, 2002
Author: P.K. Patra
Bench: P.K. Patra
JUDGMENT P.K. Patra, J.
1. This is an appeal against the judgment dated 15.12.90 passed by Shri B. K. Patnaik, Second Additional Sessions Judge, Puri in Sessions Trial No. 41/267 of 1989 convicting the thirteen appellants (hereinafter referred to as 'the accused persons') under Sections 302/149/148/326 of the Indian Penal Code (hereinafter referred to as 'IPC') and under Section 9-B of the Indian Explosive Act and sentencing accused persons Nos. 1 and 2 to undergo imprisonment for life under Section 302 IPC and the other eleven accused persons to undergo imprisonment for life for the offence under Section 302/149 IPC. All the aforesaid thirteen accused persons have also been sentenced to undergo rigorous imprisonment for two years for the offence under Section 148 IPC; accused persons Nos. 4, 7, 9, 11 and 12 have further been convicted under Section 326 IPC and sentenced to undergo rigorous imprisonment for three years; and accused persons Nos. 1, 2 and 11 have also been convicted under Section 9-B of the Indian Explosive Act and sentenced to undergo rigorous imprisonment for six months. The substantive sentences of imprisonment have been directed to run concurrently.
Other ten accused persons in the trial have been acquitted of the charge.
2. The facts leading to this appeal are as follows :
On 27.2.1989 at about 10 a.m. when the informant (P.W. 1), his father (deceased) and other members of their party were going to catch fish in a rivulet known as 'Baruna Jora', the accused persons and others belonging to their group went there armed with bombs, lathis and 'Farsas' and surrounded and attacked them. It is alleged that accused No. 1 exploded two bombs which struck the deceased, as a result of which he fell down. Accused Tofan Sahu dealt a Farsa blow on the right thigh of the deceased and accused Purushottam Chhotray exploded another bomb which struck the right thigh and scrotum of the deceased, resulting in severe burn injuries. Accused Gurubari Jena and accused Sanatan Jena assaulted the deceased by means of lathis who became unconscious. Thereafter the accused persons assaulted PWs, 6, 7, 8, 9, 10, 11 and 12. Accused Bijan Sahu alias Bijan Kumar Sahu assaulted P.W. 8 as a result of which his right little finger was severed. After the assault, the assailants fled away from the spot believing that the deceased had succumbed to the injuries. After departure of the assailants, the deceased was carried to Kanas Primary Health Centre and all the injured persons also went to the said P.H.C. where they were treated by the medical officer (P.W. 13), who also recorded the dying declaration of the deceased before referring him to the District Headquarters Hospital, Puri for better treatment where he succumbed to the injuries. The informant (P.W. 1) reported the occurrence at the Kanas Police Station and the O.I.C. of that P.S. (P.W. 20) registered the case and took up investigation. During the investigation P.W, 20 visited the spot, examined witnesses, sent requisition for medical examination of the injured persons, conducted inquest over the deadbody of the deceased and sent the deadbody for post-mortem examination. He seized the blood-stained earth and other materials from the spot and weapons of offence from the accused persons. After completion of the formalities of investigation, P.W. 20 submitted chargesheet against twenty three accused persons who stood their trial. Out of them, the present thirteen accused persons were convicted as stated earlier and the other ten accused persons were acquitted.
3. All the accused persons pleaded not guilty to the charge and their plea is one of denial and false implication.
4. In support of its case, prosecution has examined twenty-two witnesses and the defence has examined none.
5. Learned Addl. Sessions Judge placing reliance on the dying declaration of the deceased (Ext. 4) and the statements of the eyewitnesses to the occurrence convicted the aforesaid thirteen accused persons; whereas the other ten accused persons were acquitted for want of sufficient evidence against them.
6. Mr. Jagannath Patnaik, Senior Advocate appearing for the accused persons, strenuously urged for setting aside the impugned judgment contending that the learned Addl. Sessions Judge has erred in placing reliance on the dying declaration of the deceased and the statements of the so-called eye-witnesses who were not consistent with each other and whose statements were tainted with ' interestedness. Mr. B. K. Das, learned Addl. Govt. Advocate appearing for the respondent State, refuted the contention of Mr. Patnaik and supported the impugned judgment contending that the same is legally sustainable and the findings of the Addl. Sessions Judge are not erroneous. The rival contentions require careful consideration.
7. The medical officer (P.W. 11) who Conducted autopsy over the deadbody of the deceased has stated that he found the following external and internal injuries on the body of the deceased :
EXTERNAL INJURIES :
(1) One extensive burn injury over the right thigh medially 7" x 4" beginning from below the groti-fold, surrounding tissues charred-stitched and dressed-oblique in nature and femur bone exposed.
(2) A cut injury below the No. (1) injury extending from the No. (1) injury to the knee joint medially obliquely cut with gapping towards below-stitched and dressed.
(3) An abrasion over the back of the right side above the scapula, 3" x 2" - obliquely seen; and (4) An abrasion 1" x 1/2" over the left back below the shoulder joint - obliquely seen.
Smell of charring coming out of No. (1) and No. (2) injuries.
INTERNAL INJURIES :
(1) Muscles of the burnt areas extensively damaged.
(2) Lacerated burn injury over the right side of the scrutum-charred, stitched and dressed. After opening the stitch, charred testicles seen underneath."
According to him, all the injuries were ante-mortem in nature and were sufficient in ordinary course of nature to cause death of a person and the burn injuries on the scrotum and thigh might have been caused by explosion of bomb; external injury Nos. (3) and (4) might have been caused by hard and blunt substance like lathi or by fall; the cut injury on the right thigh below injury No. (1) might have been caused by a sharp cutting weapon like 'Farsa'; and the cause of death was due to extensive blast burn injuries, causing excessive bleeding and shock. He submitted the post-mortem examination report (Ext. 2). Thus as per the medical evidence on record, the death of the deceased was homicidal.
8. The statement of another medical officer (P.W. 13) who was posted at the Kanas P.H.C. is of vital importance in the present case, in as much as he treated all the injured persons including the deceased at the first instance and has issued the injury reports, Exts. 3 and 5 to 11. He also recorded the dying declaration of the deceased as per Ext. 4 on the requisition of the I.O. as per Ext. 12. P.W. 12 has stated that he examined deceased Prahallad Routray and found the following injuries :
(1) An abrasion on the back right side above the scapula-dimension 3" x 2" - obliquely seen - caused by hard and rough weapon - simple in nature;
(2) An abrasion 1" x 1/4" above the said injury No. (1) on the shoulder joint - caused by sharp and rough weapon -simple;
(3) Dislocation of the right 4th finger (ring finger on first metacarpus phalangeal joint - caused by hard dragging force - grievous in nature;
(4) Multiple burn injury with loss of muscles - skin of the area affecting the blood vessels with serious bleeding -dimension 4" x 7 1/2" x 3" - Extended internally to the lower abdomen giving a way to internal viscera to come out through the opening - Muscles were black coloured -smell of gun powder coming with fragments of stones seen on the injury - grievous in nature - caused by blast explosive;
(5) Multiple injury in pizary pattern extending all over the scrotum leaving testicles as.a naked one and bleeding profusely - surgical closer was done - grievous in nature -caused by blast explosive.
(6) Incised wound on the right shoulder blade 2" x 2" x 1" bleeding profusely - caused by sharp cutting weapon -simple."
Ext. 3 is the injury report submitted by him. He has stated to have recorded the dying declaration of the deceased (Ext. 4) which was read over and explained to him and he put his LTI on the same.
He medically examined Daitari Routray (P.W. 6) and found one incised wound on the vertex of the head of 1" x 2" x 1/2" bleeding profusely, caused by sharp cutting weapon, simple in nature. Ext. 5 is the injury certificate.
He medically examined Bhaskar Harichandan (P.W. 7) and found one abrasion on the left laternal border of the wrist caused by rough and hard weapon, simple in nature; one incised wound on the anterior aspect of the shoulder joint of 2" x 1" x 1/4" size caused by sharp cutting weapon which was simple in nature; and one incised wound on the tip of the shoulder joint measuring 1 1/2 x 1/2" x 1/2" caused by sharp cutting weapon, simple in nature and Ext. 6 is the injury certificate.
He examined Kumar Mangaraj (P.W. 12) and found one incised wound on his forehead measuring 1" x 1/2" x 1" caused by sharp butting weapon like 'Katari', bleeding profusely and the injury was simple in nature. Ext. 7 is the injury certificate.
He examined Upendra Parida (P.W. 8) and found one cut injury on his right little finger exposing the bone and the part distale to second E. P. joint being lost, i.e. right hand little finger was completely detached and lost from the right hand, bleeding profusely. The remaining stump was surgically removed. The injury was caused by sharp cutting weapon like 'Farsa' and was grievous in nature. He also found one cut injury on the ring finger, right side, lateral aspect on the mole length bleeding profusely involving the bone covering the joint. The injury might have been caused by sharp cutting weapon like 'Farsa' and was grievous in nature. Ext. 8 is the injury certificate.
He examined Arakhita Jaisingh (P.W. 9) and found one incised wound on the left forehead measuring 2 1/2" x 1" x 1/2" bleeding profusely, caused by sharp cutting weapon like the iron portion with its sharp side edge. Without surgical intervention this could have damaged the life and the injury was grievous in nature. Ext. 9 is the injury certificate.
He examined Anirudha Paikray and found the following injuries on his body :
(1) One multiple burn injury on the right hand extending from root of the hand to fore-arm-deep - third grove burn on the skin over the burnt surface are crossed on some parts of the body and bleeding on the other part. The smell of potash and gun powder coming from the burn;
(2) A burn on the right leg end and fore-legs and anterior aspect of about 10" x 3" size with irregular cross marks and smell of gun powder coming from the wound;
(3) A burn measuring 2" x 2" on lateral aspect of the forelegs penetrating one; and (4) A burn on the lateral aspect, left side over the neck, extending linear fashion from medial end of the collarbone to the root of the head. On dressing the wound, small dust particles and black ashes removed.
All the injuries were bleeding profusely and were due to blasting of explosives. The injuries were grievous in nature. Ext. 10 is the injury certificate.
He also examined Jhari Badajena (P.W. 10) and found one incised wound on his right shoulder plate extending from shoulder joint to the inner side of the shoulder joint measuring 6" x 2 1/2" x 1" involving muscles and bones. The injury could have been caused by sharp cutting weapon like 'Farsa' and was grievous in nature. Ext. 11 is the injury certificate.
Ext. 12 is the requisition of the investigating officer for recording the dying declaration of the injured Prahallad Routray (deceased).
9, P.W. 13 has also stated that the investigating officer sent one 'Farsa' and one 'Katari' to him for examination and opinion as to whether the injuries sustained by the injured persons who were medically examined by him could have been caused by the said weapons and he replied vide Ext. 13. He has also identified the 'Farsa' (M.O.I) and the 'Katari' (M.O.II) to be the weapons sent to him by the investigating officer for his examination and opinion. Further P.W. 13 has stated that injured Prahallad Routray was referred to the District Headquarters Hospital, Puri for further treatment, while the other injured persons were admitted as indoor patients and were treated there as per the bed-head tickets Exts. 14 to 20. Ext. 21 is the chit in the handwriting of P.W. 13 regarding treatment of injured Prahallad Routray and Ext. 22 is the reference memo to the District Headquarters Hospital, Puri.
10. Thus the medical evidence on record reveals that eight persons including the deceased had been examined and the deceased had sustained the injuries due to explosion of bombs and assault by means of blunt weapons tike lathi, etc. and sharp cutting weapons like 'Katari', 'Farsa', etc. vide Exts, 3 to 22.
11. Out of the injured persons, the informant (P.W. 1) and P.Ws. 6, 7, 8, 9, 10 and 12 have been examined during the trial in support of the prosecution case and only one injured , namely, Anirudha Paikray has not been examined since he was not available in the village and his whereabouts were not known. Besides, P.Ws. 2, 3 and 4 who are the co-villagers of the parties have also been examined in support of the prosecution case. As stated earlier, P.W. 11 was the medical officer who conducted autopsy over the deadbody of the deceased and P.W. 13 was the medical officer who medically examined the injured persons, P.W. 14 was a witness to the inquest over the deadbody of the deceased who has signed on the inquest report (Ext. 23). P.W. 15 was another witness to the inquest who had also signed on Ext. 23. P.W. 16 was a witness to seizure of blood-stained earth, sample earth, one torn napkin, remnants of the exploded bombs and a piece of broken lathi from the spot under the seizure-list Ext. 24. He was also a witness to seizure of remnants of bombs under the seizure-list Ext. 25; one lathi from the house of Kangali Samantray under the seizure-list Ext. 6; one 'Katari' from the house of accused Karunakar Samantaray under the seizure-list Ext. 27; one 'Katari' from the house of accused Kalu Samantaray under the seizure-list Ext. 28; one 'Katari' from the house of accused Padmacharan Samantaray under the seizure-list Ext. 29; one 'Katari' from the house of accused Nakula Jena under the seizure-list Ext. 30; one 'Katari' from the house of accused Tofan Sahu under the seizure-list Ext. 31; two bamboo lathis from the house of accused Beleswar Khadamsingh under the seizure-list Ext. 32; four bombs kept inside a polythene bag, three bombs kept in a cotton bag and one 'Farsa' without handle from the house of accused Laxmidhar Sahu under the seizure-list Ext. 33; and one 'Bhali' from the straw-heap of accused Laxmidhar Sahu under the seizure-list Ext. 34.
P.W. 17 was a witness to seizure of one Lungi and one towel stained with blood belonging to injured Jhari Badjena under the seizure-list Ext. 35 and blood-stained wearing apparels of other injured persons under the seizure-lists Exts. 36, 37, 38, 39 and 40. P.W. 18 was a Peon in the District Headquarters Hospital, Puri who was A witness to seizure of the bed-head ticket of the deceased (Ext. 42) under the seizure-list Ext. 41.
P.W. 19 was a Constable who carried the deadbody of the deceased for post-mortem examination being commanded by the investigating officer as per the command certificate Ext. 43. After the post-mortem examination he produced the wearing apparels of the deceased before the investigating officer which were seized under the seizure-list Ext. 44. Ext. 45 is the deadbody challan.
P.W. 20 was the O.I.C. of Kanas P.S. who registered the case on the oral report of the informant and drew up the FIR (Ext. 1). He visited the Kanas P.H.C., examined the injured persons and witnesses, issued requisition for medical examination of the injured persons, visited the spot, prepared the spot map (Ext. 46), seized blood-stained earth, sample earth and an old napkin stained with blood, remnants of exploded bombs, one stone piece, and one bamboo stick from the spot under the seizure-list Ext. 24; remnants of exploded bombs under seizure-list Ext. 25; a bamboo stick from the house of accused Kangali Samantaray under seizure-list Ext. 26; one 'Katari' from the house of accused Karunakar Samantaray under seizure-list Ext. 27; one'Katari1 from the house of accused Kalu Samantaray under seizure-list Ext. 28; one 'Katari' from the house of accused Padmacharan Samantaray under seizure-list Ext. 29; one 'Katari' from the house of accused Nakula Jena under seizure-list Ext. 30; one 'katari' from the house of accused Tofan Sahu under seizure-fist Ext. 31; two bamboo lathis from the house of accused Beleswar Khadamsingh and one bamboo stick from the house of accused Pramod Khadamsingh under seizure-list Ext. 32. He has also stated that one 'Farsa' without handle was seized from the house of accused Laxmidhar Sahu under the seizure-list Ext. 33 and also about seizure of the bed-head tickets of the deceased and other injured persons. He has also stated that he sent requisition to the medical officer for recording the dying declaration of the deceased. On 28.2.1989 he handed over charge of investigation to the Circle Inspector of Police (P.W. 22) who completed the investigation and submitted chargesheet in the case.
P.W. 21 was the O.I.C. of Kumbharpara P.S. Puri who received information from the medical officer of Headquarters Hospital, Puri regarding death of the deceased at 6.15 p.m. on 27.2.1989 and reported the same to the O.I.C. of Kanas P.S. over phone. On the following morning he held inquest over the deadbody of the deceased and sent the deadbody for post-mortem examination. Ext. 23 is the inquest report and Ext. 45 is the deadbody challan. He also seized the wearing apparels of the deceased produced before him after the post-mortem examination, as per the seizure-list Ext. 44. Thereafter, he sent the inquest report, deadbody chatlan, post mortem examination report, command certificate and a supplementary case diary to the O.I.C. of Kanas P.S. P.W. 22 was the Inspector of Police, Pipili P.S. who took over charge of investigation from P.W. 20 on 28.2.1989. He completed the investigation and submitted chargesheet against the accused persons.
It is to be considered whether the conviction based on the dying declaration (Ext. 4) coupled with the ocular testimony of the P.Ws. can be sustained or not.
12. While dealing with the dying declaration (Ext. 4), the learned Addl. Sessions Judge has dealt with the contention of the defence counsel in paras-18 and 19 of the judgment urging for rejection of the same for various reasons recorded therein, but the learned Addl. Sessions Judge has not accepted the said contention and has held in para - 20 of the judgment that the dying declaration was true and could be binding on the four accused persons named therein. Mr. Patnaik, learned counsel for the appellants, contended that the dying declaration (Ext. 4) cannot be held to be true and voluntary to be acted upon in view of the statement of the medical officer P.W. 13 that he recorded the same when profuse bleeding from the injuries of the deceased could not be checked and the condition of the patient was deteriorating and the patient was simply able to utter some words to answer the questions, and in view of failure of P.W. 13 to answer as to why he scored through one name on Ext. 4 and wrote another name in its place purported to have been stated by the injured and that at that moment the police requisition for recording the dying declaration could not have been there which is apparent from the fact that a carbon copy of the requisition alleged to have been made by the I.O. is on record which has been marked Ext. 12 in which the signature of P.W. 13 in ink is found without containing the time of making the requisition or receiving the same and that the name of the father of the injured is in ink although other writings are in carbon.
13. Mr. Patnaik has also pointed out that though in the inquest report (Ext. 23) it is mentioned that there was an injury below the left thigh of the deceased pealing off the skin, neither the injury report submitted by P.W. 13 who first examined the injured, nor the post-mortem examination report (Ext. 2) submitted by P.W. 11 reveals such an injury on the deceased, which would raise grave doubt regarding the authenticity of the medical reports.
14. The I.O. (P.W.20) has stated that in between 1.20 p.m. to 1.30 p.m. he gave requisition to the medical officer to record the dying declaration of the injured (deceased). But P.W. 13 has ascribed recording of dying declaration of the patient to the seriousness of his condition, i.e. pulselessness and profuse bleeding as also failure on his part to check the bleeding. But subsequently he has added that police sent the requisition Ext. 12 for recording the dying declaration of the said injured. From the above circumstances, the reasonable inference will be that the requisition had been obtained subsequently, or the purported dying declaration Ext. 4 was manufactured at the instance of the prosecution when the deceased was not in a fit condition to make such statement, which is apparent from the fact that the deceased lost his consciousness on the spot after the assault and there is no evidence on record that he regained his senses subsequently. Besides, it raises grave doubt as to why a name in the so-called dying declaration (Ext. 4) was scored through and the name of Pramod Khadamsingh was written and against his name the word 'Boma' (bomb) has been written, while against the names of other four persons there is no mention of any weapon of offence which clearly leads to the inference that the name of accused Pramod Khadamsingh was inserted subsequently so as to implicate him in this case. Name of Gurubari Jena has been written twice in Ext. 4. Further it appears to have been recorded at 12.55 p.m. on a small scarp of paper as if no quarter size or fullscap size paper was available in the PH.C. It also reveals that at 9 a.m. the occurrence took place when the maker of the statement had been to catch fish along with others with nets and other things after taking their food and as quarrel ensued between the two parties the assailant party assaulted him. It appears that besides P.W. 13, two others have also put their signature on Ext. 4. Those two persons have not been examined by the prosecution. Had they been examined in Court, the veracity of the dying declaration could have been judged in its proper perspective. Failure of prosecution to examine those persons would lead to an adverse inference against the prosecution especially when the condition of the injured was stated to be so critical. As stated by the informant (P.W. 1) the deceased became senseless at the spot and was taken to Kanas P.H.C. wherefrom he was referred to the District Headquarters Hospital at Puri and he succumbed to the injuries there. He has not whispered a word regarding regaining of senses by the injured or recording of the dying declaration by the medical officer (P.W. 13). So also the other eye-witnesses to the occurrence have not whispered a single word about regaining of senses by the deceased after he was shifted to hospital or by the time of recording his dying declaration by P.W. 13. Since the informant had carried his father to hospital in a critical condition, he could not have left him alone. In other words, some other members of the family of the injured would have guarded him and their presence at the time of recording the dying declaration cannot be excluded. Above all, when the I.O. has stated he recorded the statements of the injured between 12.50 p.m. and 1.30 p.m. and gave the requisition for recording the dying declaration between 1.20 to 1.30 p.m., the medical officer (P.W. 13) could not have recorded the same at 12.55 p.m. on the said police requisition. To exclude his influence over P.W. 13, to prepare such a dying declaration for the purpose of this case, the I.O. (P.W. 20) has stated that P.W. 13 recorded the dying declaration in his absence, which is falsified by his own statement.
15. The learned Second Addl. Sessions Judge has not considered the above aspects and has erroneously held that the dying declaration (Ext. 4) was true and placed reliance on it to base the conviction of the accused persons which cannot be sustained in the eye of law and is liable to be reversed.
16. It is well settled principle of law that a dying declaration must be received with certain degree of caution, even if all the guarantees of the truthfulness are present and that dying declarations have not the same weight as if they were made by the declarant as a witness in court subject to cross-examination and that the physical condition of the declarant is apt to make his own recollection imperfect or for the sake of the case and to be rid of importunity and annoyance of those around him, he may say whatever they choose to suggest. It is also well settled in law that it is quite unsafe to sustain a conviction on a dying declaration which is not corroborated in material particulars by other independent evidence, the reason being that the declarant might be mentally and physically in a state of confusion and might well be drawing upon his imagination while making the declaration.
17. In the case reported in AIR 2001 SC 2383 (Smt. Laxmi v. Om Prakash and Ors.), the Apex Court held as follows :
"One of the important tests of the reliability of the dying declaration is a finding arrived at by the court as to satisfaction that the deceased was in a fit state of mind and capable of making a statement at the point of time when the dying declaration purports to have been made and/or recorded. The statement may be brief or longish. It is not the length of the statement but the fit state of mind of the victim to narrate the facts of occurrence which has relevance. If the court finds that the capacity of the maker of the statement to narrate the facts was impaired or the court entertains grave doubts whether the deceased was in a fit physical and mental state to make the statement the court may in the absence of corroborative evidence lending assurance to the contents of the declaration refuse to act on it."
18. In the instant case, as discussed earlier, the evidence on record would lead to the inevitable conclusion that the so-called dying declaration (Ext. 4) was not true and voluntary, and a manufactured one for the purpose of implicating the accused persons named therein. As such, reliance cannot be placed on the so-called dying declaration (Ext. 4). Consequently, the conclusion arrived at by the learned Second Addl. Sessions Judge to place reliance on Ext. 4 recorded by the medical officer (P.W. 13) stating him to be a disinterested witness is completely erroneous and keeping in view the principles enunciated in the decision referred to above, the conviction of the four accused persons named therein cannot be sustained.
19. In view of the finding that the dying declaration (Ext. 4) cannot be relied upon, the ocular testimony of the P.Ws. in support of the prosecution case is to be carefully scrutinised before placing any reliance on them to base the conviction of the accused persons, specially when the informant (P.W. 1) has stated that there was hostility between two groups in the village and five to six criminal cases had been instituted against the accused persons which ended in acquittal and that due to that previous hostility the accused persons assaulted their group which resulted in death of his father. P.Ws. 2 and 5 have also admitted that there was dissension between two groups of persons in the village, but P.Ws. 8, 9, 10 and 12 have denied the same. P.W. 1 (informant) is the son of the deceased who lodged the FIR (Ext. 1) giving details of the occurrence regarding assault by the accused persons, but he himself did not sustain any injury due to assault and has not been medically examined, P.W. 2 has stated to have witnessed the occurrence while working in his land situated adjacent to the land of Jogi Khadamsingh where the occurrence took place. He has stated that there were two groups in the village, one comprising of members of twenty five families led by accused persons Pramod Khadamsingh and Purushottam chhotray and the other group comprising of members of seventy five families including himself. P.W. 3 has stated that the accused persons are members of the Communist Party. It has been suggested by the defence that the other group belonged to Congress Party, for which there was rivalry between the two groups in the village. P.W. 3 has stated to have witnessed the occurrence standing on the rigde of his land which is adjacent to the land of Jogi Khadamsingh where the occurrence took place. P.W. 4 has stated to have witnessed the occurrence while he was tending cattle in a nearby field. P.W. 5 has stated that while he was bundling paddy shieves in his thrashing floor, he heard explosion of bombs. He rushed towards the direction wherefrom the sound of bomb explosion was heard and on the way he found P.W. 4 and another person carrying the deceased whose condition was precarious. Thus P.W. 5 is a post-occurrence witness. In his statement in cross-examination he has admitted about party-faction in the village. RWs. 6, 7, 8, 9, 10 and 12 are the injured persons. The other injured Anirudha Paikray has not been examined in this case, P.W. 6 has stated that being assaulted by accused Duryodhan Jena by means of a 'Farsa' on the left side of his head (Parietal region) he sustained bleeding injury and fell down on the ground and became senseless and thereafter what happened he could not say. But the injury report (Ext. 5) reveals that P.W. 6 had one incised wound on the vertex of his head of the size 1" x 2" x 1/2 which was bleeding profusely and might have been caused by a sharp cutting weapon. P.W. 7 has stated that he was assaulted by accused Bijan Sahu by means of a 'Farsa' on his left side arm and wrist and after the assault he fell down and lost his senses. But the injury report (Ext. 6) reveals that P.W. 7 had an abrasion on the left lateral border of his wrist caused by a rough and hard weapon; one incised wound on the anterior aspect of his shoulder joint which might have been caused by a sharp cutting weapon and another incised wound on the tip of his shoulder joint caused by a sharp cutting weapon. P.W. 8 has stated that accused Bijan Sahu raised a 'Farsa' to assault him which he obstructed with his right hand, as a result of which the little finger of his right hand was severed. The injury report (Ext. 8) reveals that there was a cut injury on the right little finger completely severing the same from the hand and there was also another cut injury on the ring finger of his right hand, P.W. 9 has stated that he was assaulted by accused Sanatan by means of a lathi fitted with iron plate on the left of his parietal region, resulting bleeding injury. The injury report (Ext. 9) reveals that P.W. 9 had sustained an incised wound on the left of his forehead of the size 2 1/2" x 1" x 1/2" caused by sharp cutting weapon which was bleeding profusely. P.W. 10 has stated that he was assaulted by accused Karunakar Samantaray by means of a 'Farsa' on the right side of his scapular region resulting in bleeding injury and after the assault he was mentally disturbed and could not notice the assault on other persons. The injury report (Ext. 11) reveals that P.W. 10 sustained one incised wound on his right shoulder plate exending from shoulder joint to inner side of the shoulder which was grievous in nature and might have been caused by a sharp cutting weapon like 'Farsa', P.W. 12 has stated that he was assaulted by accused Kalpataru Paikray on his left parietal region by means of a 'Katari' and by accused Sanatan Jena on his shoulder by means of lathi, as a result of which he sustained bleeding injury and could not see further assault on other persons. But the injury report (Ext. 7) reveals that P.W. 12 had one incised wound on his forehead which was bleeding profusely. Thus the statements of the six injured persons are more or less consistent with the medical evidence on record, though their statements in regard to other material particulars of the occurrence are not consistent with each other and are not creditworthy for the reasons indicated hereinafter.
20. As stated by P.W. 1, the place of occurrence was at a distance of about 400 yards from the village, but all the P.Ws. are consistent in their statements that excepting the members of the informant party (nine persons), the accused persons, three eyewitnesses to the occurrence and one post-occurrence witness, no other villager came to the spot, which raises grave doubt on the veracity of the prosecution case, in as much as when such an occurrence took place near the village, in normal course of conduct the villagers would have rushed to the spot. Though the informant was one among the nine persons going to catch fish from the rivulet and whose father was done to death, he has not stated to have been assaulted by any of the accused persons and he is silent as to how he could escape from the spot unhurt. P.W. 1 has stated that his injured father (deceased) was removed to Kanas Hospital by the villagers and he also went to the said hospital and therefrom to Kanas PS. to lodge the report. In his statement in cross-examination he has stated that he first went to Kanas Hospital to inform the medical officer that his father was being brought to the hospital by the villagers in a serious condition sustaining injuries due to bomb blasting and to request him for immediate treatment of his father and thereafter he proceeded to Kanas PS. to lodge the report. He has admitted that he did not name the assailants before the medical officer. Further he has stated that when he returned from the police station, his father had been taken to the operation theatre and the medical officer informed him that bleeding could not be checked and advised him to shift his injured father to Puri hospital. P.W. 1 has not stated that he fled away from the spot after witnessing the occurrence and without being assaulted by any of the accused persons. But in the FIR (Ext. 1) he has described in details as to how the occurrence took place and who assaulted whom. The FIR is shown to have been lodged at 12 noon on 27.2.1989 though the occurrence took place at 10 a.m. and it reveals that when the informant raised hulla and the bombs were exploded, residents of his village as well as of the nearby villages rushed to the spot and they removed the injured persons to the hospital. It also reveals that the assailants pelted stones at the informant party after the assault, but strangely enough the informant himself has not sustained any injury in the occurrence. None of the other injured persons or the eye-witnesses to the occurrence has also stated as to how the informant (P.W. 1) escaped unhurt. Had he really been present at the spot, he could not have left for the hospital leaving his father in unconscious state only to request the doctor for immediate treatment of his father after his arrival. The P.Ws. have stated that the injured persons were taken to the village first and from the village the deceased was shifted to Kanas P.H.C. in a bullock cart and in normal course of conduct his family members would have accompanied him. Therefore, the conduct of P.W. 1 appears to be abnormal if at all his presence at the spot is believed to be true. The three eye-witnesses to the occurrence and the six injured persons have stated that accused Pramod Khadamsingh threw two bombs which exploded on the ground near the feet of the deceased and thereafter accused Purushottam Chhotray threw another bomb which struck the right thigh of the deceased and the fourth bomb was exploded by accused Kalu Samantaray aiming at Anirudha Paikray (who has not been examined in this case) and that accused Tofan Sahu inflicted an injury on the right thigh of the deceased by means of a 'Farsa'. All of them have deposed in parrot like manner describing the assault on the deceased as well as on the other injured persons vividly, but strangely enough all the injured persons have also deposed that after assault on each of them, they either became senseless or sat down on the spot and could not notice further assault on other members of the informant party. That apart, as per the statements of the investigating officers (P.Ws. 20 and 22), the three eye-witnesses to the occurrence as well as the six injured persons had not stated before them what they have stated in court. In other words, there are contradictions in their statements on material particulars.
21. While P.Ws. 2 and 8 have stated that the accused persons surrounded the informant party and started assaulting them, P.Ws. 3, 4, 6, 7, 10, 11 and 12 have stated that the informant party was not surrounded, but was obstructed from the front side and was assaulted. All the injured persons and eye-witnesses to the occurrence have stated that the informant party was carrying nine fishing nets (one each member) and that those fishing nets were left at the spot after the occurrence. But both the l.Os. (P.Ws. 20 and 22) have stated that the fishing nets were not found at the spot at the time of their visit and P.W. 22 has also stated that he did not direct the investigation towards recovery of the fishing nets, though P.W. 9 has stated that the fishing nets were thrown and were lying at the spot. P.W. 1 has also stated that the fishing nets were taken away by their children. Had they really carried fishing nets while proceedings to catch fish from the rivulet, seizure of those fishing nets would have lent more support to the prosecution case, but both the I.Os have left this lacuna without making any effort to seize the same. According to the informant while they were going on the 'Gahira Rasta' (path inside the field), the accused persons came on the 'Sadak Rasta' (road) and obstructed them. P.W. 2 has stated that the accused persons surrounded the informant party from the front side, coming from the road. In his statement in cross-examination P.W. 2 has stated that the accused persons were shouting and exhibiting their weapons while they came towards the informant party and surrounded them and the informant party tried to run away. P.W. 3 has stated that while the informant party was going on the path inside the field, the accused persons came on the road holding weapons and shouting at the informant party and soon after, two bombs were hurled by accused Pramod Khadamsingh. He has not stated about any attempt of the informant party to run away from the spot seeing the accused persons rushing towards them, shouting and raising their weapons, or about the accused persons surrounding them before the assault. P.W. 4 has stated that he did not hear any hulla or shout raised by the accused persons or by the informant party though he was tending cattle at a distance of about 10 to 15 cubits from the spot. But he has added that while he was sitting on the path facing towards North, the members of the informant party crossed him and thereafter he heard the hulla 'MARA, MARA' raised by the accused persons which drew his attention and he found that the accused persons were in front of the informant party, which is suggestive of the fact that the accused persons had concealed their presence at the spot prior to the arrival of the informant party with a view to assault the letter. This statement of P.W. 4 has not been corroborated by any of the prosecution witnesses. Though P.W. 5 has stated to have seen the accused persons running away towards the village being armed with weapons of offence, he has not stated to have seen the assault on the informant party and has frankly admitted in his statement in cross-examination that there was party faction in the village and he belonged to the faction of the informant party. P.W. 6, one of the injured persons, has stated that the accused persons made their appearance suddenly near the land of Jogi and accused Purushottam Chhotray was shouting to finish them. Being so instigated, accused Pramod Khadamsingh hurled bombs towards the deceased. He has stated that the accused persons did not chase them or surrounded them after making their appearance from the front side. He has stated that except assault on deceased Prahallad and on himself, he has not seen assault on the other injured persons. P.W. 7 has stated that the accused persons came from the opposite direction being armed with weapons. In his statement in cross-examination he has stated that he has not seen from where the accused persons came to the spot and that the accused persons did not chase and did not surround the informant party. P.W. 8 has simply stated that the accused persons went to the informant party and started assaulting, adding that accused Pramod Khadamsingh, Purushottam Chhotray and Tofan Sahu asked others to apprehend the informant party, which is not corroborated by the other P.Ws. But in his statement in cross-examination, P.W. 8 has stated that the accused persons came running towards them and surrounded them and assaulted the informant party. Though the informant has stated the deceased fell down on the ground, he was not unconscious. P.W. 9 has stated that accused Purushottam Chhotray told 'SALAKU JIBANARE SESH KARIDIA', after which accused Pramod Khadamsingh threw bombs at the deceased. He has stated that he could not mark assault on the other injured persons since they were assaulted after he was assaulted. P.W. 10 has stated that when they were going on the land of Jogi Khadamsingh with their fishing nets, somebody asked them as to where they were going and when he looked, he found the accused persons at a distance of about thirty cubits on the front side. He has also added that accused persons Pramod Khadamsingh, Purushottam Chhotray and Tofan Sahu were shouting to finish them and thereafter accused Pramod Khadamsingh threw bombs aiming at the deceased. In his cross-examination he has stated that the accused persons did not come running and did not surround them. He has not been corroborated by the other prosecution witnesses and he had also not stated so before the I.O. He has contradicted the statements of the other prosecution witnesses by stating that the accused persons did not come running and did not surround the informant party. He has stated that when the accused persons came from the front side, they tried to run away from the spot, but could not succeed because of the presence of the accused persons close to them. P.W. 12 has stated that the accused persons shouted hurling abusive words and questioning as to where they were going and thereafter accused Pramod Khadamsingh threw bombs aiming at the deceased. In his statement in cross-examination he has stated that the accused persons did not surround them and they did not try to run away from the spot.
22. Thus the statements of the injured persons and they eyewitnesses to the occurrence are not consistent with each other on material particulars, such as the manner of appearance of the accused persons at the scene, their chasing and surrounding the informant party before the assault, and the utterings of the accused-persons hurling abusive words and threatening to kill the informant party. Above all, none of the P.Ws. disclosed before the medical officer as to how the deceased sustained the injuries.
23. In view of the discussions made above, the statements of the Injured persons and the eye-witnesses to the occurrence which are bristling with contradictions and infirmities cannot be safely relied upon, as admittedly there was rivalry between two groups in the village. The prosecution story regarding the occurrence is shrouded with grave doubt as to why the informant party did not retaliate when they were attacked from the front side and as to why they did not try to run away from the spot seeing the accused persons rushing towards them being armed with deadly weapons. The village was situated at a little distance from the place of occurrence and had the informant party tried to run away from the spot, they could have easily done so, or had they raised hulla, attention of the villagers could have been drawn, so that many villagers would have gathered at the spot instead of only P.Ws. 2, 3, 4 and 5, who are members of the group led by the deceased and against the group of the accused persons. That apart, the prosecution case about throwing of bombs aiming at the deceased by accused Pramod Khadamsingh and Purushottam Chhotray is found to be incredible in view of the evidence on record that the bombs were hurled from the distance of about ten to fifteen cubits and those exploded on the ground without causing any injury on the lower parts of the legs of the deceased and the statement of the I.O. (P.W. 20) that he did not find any mark of explosion of bombs on the ground at the spot though remnants of the exploded bombs were seized from the spot. Had the informant party carried fishing nets, some of those nets would have been damaged due to explosion of four bombs at the spot, but as stated earlier, both the I.Os. failed to seize the fishing nets either from the spot, or from the houses of the informant party.
24. The contention of Mr. Patnaik that the prosecution is guilty of suppression of facts and that it has not come with clean hands has substantial force in the facts and circumstances of the case as stated above. The seizure of the weapons of offence like 'Katari', 'Lathi', etc. from the houses of the accused persons is of no consequence since none of the same has been recovered on the statements of the accused persons leading to discovery, as provided under Section 27 of the Evidence Act, and none of the same has been sent for chemical examination. The chemical examiner's report (Ext. 50) reveals that the wearing apparels contained human blood-stains, but none of the weapons of offence seized in this case had been sent for chemical examination. It is strange to note that M.O. I, (Farsa) and M.O. II (Katari) which were seized by the I.O. and sent for examination and opinion by the medical officer (P.W. 13) as to whether the injuries found on the deceased could have been inflicted by those weapons or not, were not sent for chemical examination. The inquest report (Ext. 23) does not reveal the names of the assailants of the deceased.
25. The learned Second Addl. Sessions Judge has committed an error in omitting to mention these M.Os. in the list of M.Os., . and to discuss about the same in the judgment. Instead, the list of M.Os. reveals that one lathi has been marked as M.O. I, and one torn old napkin has been marked as M.O.II. This is a grave error committed by the learned judge, in as much as M.Os. I and II were the weapons of offence alleged to have been used to inflict injuries on the deceased. Both the I.O.s (P.Ws. 20 and 22) have also not identified the 'Farsa' (M.O. I) and 'Katari' (M.O. II) in court. So also none of the injured persons or the eye-witnesses have identified the same in court. Had these two weapons, 'Farsa' (M.O. I) and 'Katari' (M.O. II) been stained with blood, the I.Os. would have sent the same for chemical examination. But they have not sent the same for chemical examination as per the forwarding letter of the S.D.J.M. (Ext. 49), probably because no blood-stains were found on the same. Though the opinion of the medical officer (P.W. 13) is in affirmative in this regard, the same will be of no help to the prosecution in this case.
26. In the case of the State of Punjab v. Sucha Singh, reported in 1973 Cri. L. R. (SC) 393, it was held that interference was not called for the acquittal of the accused when there were infirmities in the prosecution case and the witnesses examined by the prosecution were interested and their evidence was such upon which implicit reliance could not be placed.
In the case of Salveraj v. State of Tamil Nadu, reported in AIR 1976 SC 1970, it was held that when the evidence led on behalf of the prosecution was wholly unsatisfactory and it was not be regarded as sufficient to base the conviction of the appellant for the murder of the deceased, the appellant was entitled to an acquittal.
In the case of Madan Naik v. State, reported in 1983 CLR 189, it has been held by this Court that in order to base a conviction on the testimony of a solitary witness, his evidence must be clear, cogent and consistent and should be of unimpeachable character.
In the case of Ram Ashrit Ram v. State of Bihar, reported in 1983 Crimes (Vol. I) 131, it was held that when the prosecution witnesses are either inter-related or otherwise interested in the prosecution, before their testimony could be safely acted upon, it had to pass the test of cfose and severe scrutiny and that it is extremely hazardous to convict the accused persons on the basis of the testimony of the highly interested, inimical and partisan witnesses, particularly when it bristles with improbable version and material infirmities.
In the case of Akhaya Naik v. State of Orissa, reported in (2000) 19 OCR 199, it has been held that when there are discrepancies in the evidence of eye-witnesses as regards the weapon of offence held by the accused and the statements of the witnesses are not consistent with each other and with the medical evidence on record, presence of witnesses at the spot at the time of occurrence was doubtful.
In the case of Rudra Patra v. State, reported in 90 (2000) CLT 376, it has been held that when the evidence of the eye-witnesses to the occurrence is not consistent with each other, it would be quite unsafe to place reliance on them and would be hazardous to convict the accused.
27. Keeping in view the principles enunciated in the decisions referred to above and on an analysis of evidence on record, the irresistible conclusion will be that the prosecution has not been able to establish beyond all reasonable doubts by leading clear, cogent, consistent, convincing and unimpeachable evidence that the accused persons were the authors of the crime. Hence, the conclusion of guilt of the accused persons arrived at by the learned Second Addl. Sessions Judge basing on the statements of partisan and interested witnesses bristling with infirmities, inconsistencies and contradictions, is completely erroneous and cannot be sustained in the eye of law. They are, therefore, entitled to the benefit of doubt.
28. In the result, the accused persons are acquitted of the charges. The conviction and sentence imposed on them are hereby set aside. The accused persons, who are in custody, be released forthwith, if not required in any other case. The bail bonds of accused persons who are on bail stand discharged.
The Criminal Appeal is allowed.
R.K. Patra, J.
I agree.