Orissa High Court
Bhagaban Panda And Six Ors. And Sanatan ... vs State Of Orissa on 18 January, 2001
Equivalent citations: 2001(I)OLR352
Author: P.K. Patra
Bench: P.K. Patra
JUDGMENT P.K. Patra, J.
1. These two appeals arise out of the judgment dated 27-3-1991 passed by Shri B. Khadanga, Sessions Judge, Mayurbhanj, Batipada in S. T. No. 68 1990 convicting the seven appellants in Criminal Appeal No. 98 of 1991 and one appellant in Criminal Appeal No. 115 of 1991 under sections 148, 325/149 and 323/149 of the Indian Penal Code (hereinafter referred to as 'I.P.C.') and sentencing each of them to undergo rigorous imprisonment for six months under the first count and for two years under the second count with direction that the sentence would run consecutively while passing no separate sentence under the third count.
2. Prosecution case, briefly stated, runs as follows :--On 15-4-1989 at about noon when p. w. 4 was returning to his house in village Mahulpatna undet Baisinga police station in the district of Mayurbhanj from Basanti Mandap in the nearby village Bachhuripada, Sanatan Acharya, the appellant in Criminal Appeal No. 115/1391 restrained him and assaulted him by dealing two fist blows on his face alleging that he (p. w. 4) had joined the rival group in the village and after being assaulted p.-w. 4 rushed back to Basanti Mandap and narrated the occurrence to his father Chhachindra Bebera (deceased) and the informant (p. w. 1). Accompanied by p. w. 1, p. w. 4 went to Baisinga police station and after lodging a written report returned back to Basanti Mandap. P. w. 1 went to his house and at about 4 p. m. that day hearing hulla at the Basanti Mandap he came out of his house and found the eight appellants along with twentythree co-accused persons (since acquitted), being armed with lathis, were challenging p. w. 4 as to why he reported the aforesaid matter to police and were having altercation with p. w. 4, his father (deceased), p. w. 2 and p. w. 6. At that time, Pramod Panigrahi (p, w. 3), Prasanta Panigrahi and Subash Panigrahi reached there. The deceased questioned the appellants and the other co-accused persons as to why they assaulted his son p. w. 4. It is alleged that when the informant intervened, appellant Larman Das (appellant No. 4) and appellant Sarbeswar Das (appellant No. 3) assaulted him with lathis on his head and hand resulting in bleeding injuries on his head. The informant fell down on the ground after the assault. Appellants Bhagaban Panda (appellant No. 1), Pradeep Panda (appellant No. 6) and appellant No. 3 assaulted the deceased by means of lathis on his head, hand and waist as a result of which he fell down on the ground and became unconscious. Witnessing assault on the informant and the deceased, p. ws. 3, 4 and others protested the appellants and their co-accused persons, but they were also assaulted by means of lathis resulting in bleeding injuries on their head and other parts of body. It is further alleged that some of the accused persons pelted brickbats as a result of which Prasanta Panigrahi sustained bleeding injuries on his head. When the deceased was found unconscious, the informant shouted that the deceased had breathed his last where after the accused persons fled away with their lathis. It is alleged that due to rivalry between two groups of villagers the prosecution witnesses along with others of their group had performed Basanti Puja separately for which p. w. 4 was assaulted and after that the present occurrence took place. At about 4.45 p. m. the informant (p.w. 1) reported the occurrence to the O. I. C., Baisinga P. S. (p w. 8) who reduced the same to writing, registered a case under sections 147, 148, 337, 323, 506/ 149, I. P. C. and took up investigation. During investigation p. w. 8 examined witnesses, sent, the injured persons for medical examination, visited the spot and found broken bricks and stains of blood on the ground, arrested the accused persons and forwarded them to court in custody. When he received information that the condition of the deceased was deteriorating, he went to the hospital, but the dying declaration of the deceased could not be recorded since he was unconscious. On 6-5-1989 the deceased succumbed to the injuries while he was under treatment in the District' Headquarters Hospital, Baripada. After the death of the deceased the case was converted to one under section 302, I. P. C. P. w. 8 beld inquest over the deadbody of the deceased, sent the same for post-mortem examination, seized the bed-head ticket, etc. from the hospital and on 15-5-1989 the Circle Inspector of Police, Betnati took over charge of investigation of the case from p. w. 8 and after completion of investigation submitted chargesheet under sections 147, 148, 337, 506, 302/149, I. P. C. against thirtyone accused persons named in the F. I. R.. All the accused persons stood their trial and eight of them (the appellants in these two appeals) were found guilty and were convicted under sections 148, 325/149 and 323/149, I. P. C. and were sentenced as stated earlier. But they were found not guilty of the charge under section 302, I. P. C. and were acquitted. The remaining twenty three accused persons were found not guilty and were acquitted of the charge.
3. The defence plea is one of denial and false implication due to rivalry,
4. Shri S. K. Sahoo, learned counsel for appellant Nos. 1 to 5 in Criminal Appeal No. 98 of 1991 and the sole appellant in Criminal Appeal No. 115 of 1991 and Shri D. Nayak, learned counsel for appellant Nos. 6 and 7 in Criminal Appeal No. 98 of 1991 as also the learned Addl. Government Advocate for the State were heard at length. While Shri Sahoo and Shri Nayak contended that the impugned judgment is unsustainable in law and is liable to be set aside due to improper appreciation of evidence on record, the learned Addl. Government Advocate supported the impugned judgment.
5. In order to bring home the charge, prosecution has examined nine witnesses in all, of whom p. w. 1 is the informant, p. w. 4 is the son of the deceased and p. ws. 2, 3 and 6 are the three eye-witnesses to the occurrence who were also injured due to assault by the accused persons. P. w. 5 is the medical officer who medically examined the injured persons and submitted the injury reports, Exts. 2, 3, 4, 5, 6, 7 and 8. P. w. 7 is another eyewitness to the occurrence p. w. 8 is the investigating officer. -P. w. 9 is the medical officer who conducted autopsy over the deadbody of the deceased.
The defence has examined one witness in support of its case.
6. The medical officer (p. w. 9) who conducted autopsy over the deadbody of the deceased on 7-5-1989 at 11.30 a. m. found the following external injuries :--
"1. One healed up ulcer with formation of scar of the size 5.5 c. m. long vertically placed, 1 c. m. away from the midline and 8 c. to. above the middle of left super cilliary arch.
2. Healed up ulcer 5 c. ro. X8 c. m. on the left wrist, and
3. Healed up ulcer 4 c. m. X 7 c. m. on the left elbow." On dissection he found the following injuries :--
"1. Depressed comminuated fracture 10 c. m. X 17 c, m. on the left fronto-parietal area of skull extending up to right parietal area of the scalp.
2. Infected extradural haematoma with puss formation, over the left cerebral hemisphere, and
3. Brain was pale and oedematous."
According to the medical officer (p. w. 9), alt the injuries were ante-mortem and homicidal in nature and the cause of death was, due to septicaemia following injuries to vital organ, i. e. brain. The death was within twentyfour hours of his examination. According to him, the head injury was sufficient to cause death in ordinary course of nature. The injuries were possible by lathi blows. The deceased succumbed to the injuries on 6-5-1989, i. e. twentytwo days after the alleged assault while in hospital., Ext. 17 is the post-mortem report.
7. The medical officer (p. w. 5) who medically examined seven injured persons on 15-4-1989 submitted the injury reports Exts. 2 to 8. Out of the injured persons, only four have been examined as prosecution witnesses, who are p. ws. 1, 2, 3 and 4, The remaining three injured persons, namely, Prabhat Cb, Panigrahi, Prasanta Ku. Panigrahi and Subas Panigrahi have not been examined. As per the statement of p. w. 5, he found one lacerated injury 1 c. m. x 1/4 c. m. X skin deep on the right side of the lower lip of Dinabandhu Behera (p. w. 4) (son of the deceased), as revealed in the injury report Ext. 6. But p. w. 4 is completely silent about such injury and his medical examination by p. w. 5. He has also not stated that he was assaulted by any of the accused persons during the occurrence though he stated about assault on p. w. 1 and the deceased and about injuries on other persons. P. ws. 1, 2 and 3 have also not stated about assault on p. w. 4 by any of the accused persons.
8. Tbe informant (p. w. 1) has stated that when he ttied to pacify the situation, accused Laxman Das assaulted him by means of a lathi on his hand and accused Sarbeswar assaulted on his head by means of a lathi, as a result of which he fell down and that when deceased tried to intervene, accused Sarbeswar assaulted him (deceased) on his left side waist, accused Pradeep Panda assaulted the deceased on his left hand and accused Bhagaban assaulted on his head, as a result of which the deceased fell down and became unconscious. But the medical officer (p.w. 5) has stated that he found one stitched wound of 1" size on the right parietal region of p. w. 1 as per his injury report - Ext. 3. He did not find any injury on the hand of p. w. 1. The injury was simple in nature. In his statement in cross-examination p. w. 5 has stated that if force was applied and the lathi blow was dealt on the head of p. w. 1, the size of injury would have been greater.
9. P. w. 2 has stated that when he rushed to rescue the deceased, he was dealt lathi blows on both his shoulders by accused Deepak Kr. Panda and Santosh Kumar Nanda. The medical officer p. w. 5 has stated that he found one abrasion of 1 c. m. X 1/2 c. m. on the light shoulder and another abrasion with swelling 1 1/2 C. m. X 1/2 c. m. on the left shoulder of p. w. 2 as per the injury report Ext. 5. But in his statement in cross-examination p. w. 5 has stated that the nature and size of the injuries found on p. w. 5 suggested that those injuries were possible by coming in contact with hard and rough substance and not by infliction of lathi blows.
10 P. w. 3 has stated that when he went to rescue the deceased, accused Sarbeswar Panda assaulted him by means of a lathi on his shoulder and accused Sanatan Acharya assaulted him by mean's of a lathi on his head, as a result of which he fell down on the ground. The medical officer p. w. 5 has stated that he examined p. w, 3 and found one lacerated injury 1" X 1/2" X scalp deep on his left parietal occipital etninance as per the injury report Ext. 2. The injury was simple, in nature and could have been caused by hatd and blunt weapon. He did not find any injury on the shoulder of p. w. 3.
11. Besides the above inconsistencies in the statements of p. ws. 1, 2, 3 and 4 with the medical evidence on record, the following facts are worth-noticing for proper appreciation of the testimony of the eye-witnesses to the occurrence.
12. The informant p. w. 1 has stated that when he tried to intervene during discussion between the appellants and the other accused persons on one side and the deceased and p. w. 4 on the other side, he was assaulted by accused persons Laxman Das and Sarbeswar Panda and thereafter when the deceased tried to intervene he was assaulted by accused persons Sarbeswar Panda, Pradeep Panda and Bhagaban Panda, as a result of which he fell down and became unconscious and thereafter when p. ws 2 and 3 tried to rescue the deceased they were also assaulted by accussd persons Sarbeswar Panda, Sanatan Acharya. Santosh Panda and Deepak Panda. He has added that Pravash Panigrahi and Suresh Panigrahi were also assaulted and injured, but did not state as to which of the accused parsons assaulted them. Further he has stated that accused Sadhak Narayan Nanda pelted brickbats which struck near the left ear of Prasanta Panigtahi who has not been examined as a witness in this case. Thereafter he raised alarm and the accused persons left the place with their lathis. In his statement in cross-examination p. w. 1 has stated that p. w. 3 and Prasanta Panigrahi are his brother and p. ws 2, 6 and Subas are the sons of his another brother - Purna, and that there was dispute regarding performance of Puja in the year 1988 when, he was one of the office-bearers of the Puja Committee and was managing the Puja. He has stated that the Basanti Puja Mandap is situated in his village and the residents of three adjoining villages, viz., Gapalpur, Mahulpatna and Bachhuripada, were performing Puja jointly in the said Mandap. He admitted that since the dispute there were factions and the accused persons belonged to one faction; whereas he and his family members belonged to the other faction and that the family members of the deceased and Janardan Das belonged to his group and the accused persons had started performing Puja separately on the land of said Janardan Das; whereas p. w. 1 and his supporters continued to perform Puja on the old Mandap where the alleged occurrence took place. P. w. 1 has also stated that except the accused persons named as the assailants the other co-accused persons were only shouting. He has admitted that he has not stated in the F.T.R. that the accused persons including accused Sanatan Acharya were challenging p. w. 4 as to why he was in the other group instead of joining their group and that he did not Specifi-cally state in his report that Pramod Panigrahi and sutesh Panigrahj were assaulted by accused persons Sarbeswar and Sanatan with lathis and that he could not recollect if he had stated the same before the investigating officer.
13. P. w. 2 has stated that after departure of the accused persons from the place of occurrence he found that Prasanta Panigrahi, Pramod Panigrahi, Pravash Panigrahi and Subas Panigrahi had sustained injuries, but has not stated as to how they sustained the injuries. In his statement in cross-examination p. w. 2 has stated that lathi blows were dealt by the accused persons with force and that p. w. 1 sustained one swelling on his finger, which has not been stated by p. w. 1 himself. According to p. w. 2, the deceased was assaulted by the accused persons on the Puja Mandap which is of the size 12' X 12' and p. w. 1 was assaulted on the road by the side of the Mandap. But according to p. w. 1 when he was assaulted by the accused persons, the deceased intervened and was assaulted and he fell down and became unconscious.
14. P. w. 3 has also stated that when p. w. 1 was being assaulted, the deceased intervened and was assaulted. In his statement in cross-examination p. w. 3 has stated that p. w. 1 and the deceased were assaulted on the Mandap where he himself, p. w. 1 and the deceased amongst fifteen to sixteen others were present. P. w. 3 has not stated before the I. O. (p. w. 8) that he was assaulted at the spot by accused Sarbeswar Panda and Sanatan Acharya with lathis. Thus the statements of p. ws. 1, 2 and 3 are not consistent with each other and are tainted with interestedness and cannot be held to be unimpeachable. Hence reliance cannot be placed on them.
15. P. w. 4 who is the son of the deceased has stated that he was present on the Mandap and his father (deceased) was sitting on the verandah when the accused persons arrived there in a group being armed and that Kali Charan Behera, Banamali Behera, Trilochan Das and Khageswar Palei were not present along with the accused persons at that time which he has stated before the I.O, (p. w. 8). Though he has not stated before the I. O. (p. w. 8) to have seen accused persons Sanyasi Das, Amar Das, Brundaban Panda, Karunakar Panda, Santosh Nanda and Sadhak Narayan Nanda at the place of occurrence and that p. w. 1 had accompanied him to the police station after the occurrence that took place in the noon, he has stated the same in court. P. w. 4 has stated that the members of both the groups were present on the Mandap when the assault took place. It cannot be believed for a moment that such a large number of persons were present on the Mandap which is stated to be of the size 12' X 12' when the deceased was assaulted by means of lathis. Thus the statement of p. w. 4 is not free from infirmities and improbabilities and it is also tainted with interestedness and hence cannot be relied upon.
16. P. w. 6 has stated that after receiving bleeding injury on his head the deceased fell down and also added that he vomitted which is not the case of the prosecution. According to p. w. 6, when he went to rescue the deceased, he was assaulted by accused Sanatan Acharya with a lathi on his right side back and right arm and has gone to the extent of saying that some of the accused persons were pelting stones. P. w. 6 has not been medically examined although he has stated that he and other injured persons were medically examined on police requisition. In his statement in cross-examination p. w. 6 has stated that about fifteen to sixteen persons from both the groups were present on the Mandap when the occurrence took place. He has admitted that the relationship between the residents of village Bachburi-pada and village Mahulpatna was not cordial and that they were not in talking terms with their relations. Thus p. w. 6 is not a credit-worthy witness and hence reliance cannot be placed on him.
17. P. w. 7 who serves as a Teacher has stated to have witnessed the occurrence while he was going in search of his cow.
He rushed to the spot hearing hulla and found that the accused persons were armed with lathis and the deceased was struggling for his life with bleeding injuries on his head. He has stated that when p. w. 3 went to rescue the deceased he was assaulted by accused persons Sarbeswar Panda and Sanatan Acharya, as a result of which p. w. 3 fell down. P. w. 7 has not stated to have seen the assault on p w. 1. He has admitted that there was dispute between him and accused Sarbeswar Panda, whose house is adjacent to his house when his tree fell down and accused Sarbeswar claimed the same. P, w. 7 has stated that p. w. 3 was on the Mandap when he was assaulted which is not consistent with the statement of p. w. 3. According to p. w. 3 there was a proceeding under section 145, Cr. P. C. between him and accused Sarbeswar Panda. Thus p. w. 7 is an interested witness whose statement is not consistent with the statements of other witnesses to the occurrence and is not blemishless and credit-worthy. Hence reliance cannot be placed on him.
18 The I. O. (p. w. 8) has not seized the weapons of offence, i. e. the lathis alleged to have been wielded by the accused persons to assault the deceased and other injured persons. He has stated that he found blood-stains on the village road adjoining Basanti Mandap, but did not seize the blood-stained earth or any other article. Thus the investigation is found to be perfunctory. Withholding the three injured persons who were material witnesses for the prosecution from the witness-box will also adversely affect the prosecution case. As discussed earlier, it is found that the statements of the eye-witnesses to the occurrence are bristling with inconsistencies and improbabilities and are tainted with interestcdness. Therefore it will be quite unsafe to place reliance on the statements of such eyewitnesses to the occurrence. In view of the above findings, the inevitable conclusion would be that the prosecution has not been able to establish the guilt of the appellants beyond all reasonable doubts by leading cogent, consistent, convincing, credible and unimpeachable evidence. Consequently the appellants would be entitled to the benefit of doubt. The above view finds support from the decision in the case of State of Punjab v. Sucha Singh, reported in 1973 Cri. L. R. (S. C.) 393 in which it was held that interference was not called for in the acquittal of the accused when there were infirmities in the prosecution evidence 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 A, I. R. 1976 S. C. 1970, it was held that when the evidence led on behalf of the prosecution was wholly unsatis factory and it could not be regarded as sufficient to find the conviction of the appellant for the murder of the deceased, the appellant was entitled to an acquittal. In the case of Ram Ashrit Ram v. State of Bihar, reported in 1983 Crimes (Vol.1) 131 it has been 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 bad to pass the test of close and severe scrutiny and that it is extremely hazar dous to convict the accused persons on the basis of the testimony of the highlyinterested, inimical and partisan witnesses, parti cularly when it bristles with improbable version and material infirmities.
19. The learned Sessions Judge placed reliance on the statements of the prosecution witnesses and held that prosecution has been able to establish the guilt of the eight appellants who have been named by the prosecution witnesses as the assailants of the deceased and the other injured persons and convicted them under sections 148, 325/149 and 323/149, I, P. C., but found them not guilty .of the charge under section' 302, I. P. C. . The trial court acquitted the remaining twentythree accused persons observing that no positive evidence was forthcoming against them for which they were entitled to the benefit of doubt. It was also observed that it would be extremely hazardous to accept the omnibus nature of evidence, given by the prosecution witnesses against them (twentythree accused persons). In view of the discussions made above, the conclusion of the learned Sessions Judge that the prosecution has established the culpability of the eight appellants beyond reasonable doubts is found to be erroneous and cannot be legally sustained. Therefore the conviction of the appellants is liable to be set aside and they will be entitled to benefit of doubt and ate to be acquitted of the charge.
20. It may be mentioned that the appellants and the widow, sons (including p. w. 4) and daughters of deceased Chhachindta Behera, claiming to be the legal heirs of the deceased, filed a compromise petition praying to compound the offences under section 320(2), Cr.P.C.. Learned counsel for the appellants utged for consideration of the said petition in case the impugned judgment is affirmed by this Court. In view of the finding that the appellants are entitled to be acquitted on benefit of doubt, the impugned judgment is unsustainable and is liable to be set aside. Hence consideration of the said compromise petition and decision regarding maintainability of the same will be redundant.
21. In the result, both the Criminal Appeals are allowed.
The impugned judgment dated 27-3-1991 passed by the learned Sessions Judge, Mayurbhanj, Baripada is set aside. The conviction of the appellants under sections 148, 325/149 and 323/149, I. P. C. and the sentences passed thereunder are set aside. The appellants are given the benefit of doubt and acquitted of the charge. Since the appellants are on bail, their bail-bonds be discharged.
22. Crl. appeals allowed.