Orissa High Court
Danda Naik And Three Ors. vs State Of Orissa on 12 July, 2007
Equivalent citations: 2007(II)OLR742
Bench: Chief Justice, N. Prusty
JUDGMENT A.K. Ganguly, C.J.
1. The four accused persons, namely, Danda Naik, Sima @ Simanchal Naik, Bhaiga @ Bhagaban Naik and Debo @ Debaraj Naik were charged under Section 302/34 of the Indian Penal Code and all the accused persons, excepting accused Sima alias Simanchal Naik, were further charged under Section 307/34 of I.P.C. and they stood trial in the Court of the 1st Additional Sessions Judge, Berhampur, Ganjam in connection with Purusottampur P.S. Case No. 70/91 corresponding to G.R. Case No. 163/91 and Sessions Case Nos. 17 of 1992 and 23 of 1992.
2. All the accused persons were convicted under Section 302/34 I.P.C. and all the accused persons excepting Sima @ Simanchal Naik were also convicted under Section 307/34 of I.P.C. and they were all sentenced to suffer imprisonment for life under Section 302/ 34 I.P.C. and all the accused persons excepting Sima @ Simanchal Naik were further sentenced to undergo rigorous imprisonment for one year for conviction under Section 307/34 I.P.C. Both the sentences were to run concurrently.
3. The prosecution case in brief is that on 5.4.1991 at about 9.00 A.M. the accused persons who were on hostile terms with the Mohant of Radha Krishna Math started abusing the Mohant and the employees of that Math in foul languages. Thereafter, they returned to their respective houses which they constructed a few yards away from the Math premises. The bad relation between the accused persons and the Math's Mohant is admitted. Between 11.00 A.M. to 11.30 A.M. on that day i.e. on 5.4.1991 all the accused persons along with their wives being armed with Kati, Chelo and Tengha etc. came near the Math for the second time and started abusing the Mohant and the employees of the Math in very foul languages. Thereafter, the accused persons went to the nearby Nelia Bandha land of the Math and continued to abuse the Math's Mohant and its staff including Bhima Bhuyan who was working as Gumasta of the Math. On such abuse being hurled, Bhima Bhuyan went towards the accused persons and asked them why they were abusing the Math's Mohant and the members of the staff. At this accused @ Simanchal Naik threatened Bhima Bhuyan in filthy language and immediately thereafter Danda Naik inflicted a thenga blow near the right ear of the deceased Bhima Bhuyan and as a result of which Bhima fell down on the ground. It is alleged that Sima @ Simanchal Naik, who was holding a Chelo, thrust it on the right side chest of Bhima causing profuse bleeding from the chest and it is alleged that Bhima Bhuyan died instantaneously. Seeing this, Ramahari Bhuyan (P.W. 1), who was following Bhima intervened and accused Danda Naik snatched out the Chelo from Sima @ Simanchal and thrust it on the abdomen of Ramahari (P.W.1) and as a result of which a portion of his intestine came out and he fell on the ground. Bhaiga Naik immediately gave a blow with a Kati to the head of Ramahari (P.W.1) causing profuse bleeding. Deba Naik attempted to give a blow with Kati on the head of Ramahari (P.W.1), but it was missed. At that time Sanjay Bhuyan and others who were with Ramahari raised a hulla and the accused persons left the place. The deceased Bhima Bhuyan and Ramahari were physically carried to Math Pindha and thereafter Ramahari was removed to MKCG Medical College & Hospital, Berhampur for treatment.
4. The defence of the accused persons is one of complete denial of the prosecution case and of false implication. The defence has tried to put up a case to the effect that on 05.04.1991 at about 11 A.M. the members of the staff of the Math including the deceased Ramahari Bhuyan (P.W. 1), Kalu Bhuyan (P.W. 3) and others came near the house of the accused Sima Naik and tried to demolish his house and they were also armed with lathi, chela. They abused the wife and children of the accused persons. When the accused persons protested, they assaulted the accused persons and their wives as a result of which they sustained injuries on their persons. They were removed to Chhatrapaur Sub-Divisional Hospital and admitted as indoor patient. The Officer-in-Charge, Purusottampur Police Station met the accused persons on 07.04.1991 at the Chhatrapur Hospital, received the oral report from Sima Naik and reduced the same into writing. The Officer-in-Charge issued injury requisitions for the treatment of the accused persons. On the basis of the oral information of Sima Naik, a case was registered under Sections 147/148/323/324/325/149 of the Indian Penal Code vide Purusottampur Police Station Case No. 74/1991 corresponding to G.R. Case No. 167/91 in the file of J.M.F.C. Purusottampur against six persons including P.Ws. 1 & 3.
5. In this case the defence raised a plea that the F.I.R. Ext-8/1 has been manipulated and substituted in place of the real F.I.R. It is the evidence of P.W. 2, that on 05.04.1991 in the morning he found accused persons were abusing the Math's Mahant and the staff members. So apprehending some danger, on his way to Purusottampur he informed at Purusottam Pur Police Station orally about the law and order position in the area. P.W. 6, the Investigating Officer also deposed that on 05.04.1991 at 1.00 P.M. one Prakash Panda informed him at Purusottam Pur Police Station about the serious law and order problem at village Ganga Dehuni. The Investigating Officer entered the said fact in the Station Diary Entry No. 114 of the Police Station and thereafter he along with officers proceeded to village Ganga Dehuni for maintaining law and order. Admittedly the Station Diary Entry No. 114 has not been seized during investigation and the same was not disclosed.
6. This defence argument by itself may not be of much significance since the information given by P.W.2 cannot be treated as an F.I.R. but the prosecution should have disclosed the Station Diary Entry. But the defence assailed the action of the investigating agency on other grounds also. On 5.4.1991 at 3.00 p.m. in village Dehuni at the place of occurrence on a plain paper, the oral version of P.W. 3 was reduced to writing by P.W. 6 and this was sent to Purusottampur Police Station on 5.4.1991 and this was registered as the formal F.I.R-. at the Police Station at 5.00 P.M. on 05.04.1991. The distance of the Police Station from the place of occurrence is 13 K.M. The Investigating Officer noted on the plain paper that he had sent the same for registration as F.I.R. at the Police Station. Nothing has been mentioned who carried plain paper version of P.W. 3 to the Police Station for registration.
7. The inquest on the dead body of the deceased was held at 5.00 P.M. as per the time mentioned in the inquest report (Ext. 7) Ext-1 is the seizure list and Ext-13 is another seizure list which were also prepared at the spot on 05.04.1991. In both the seizure lists the time mentioned are 4.30 P.M. and 4.45 P.M. respectively. In the inquest report Ext-7 and seizure list Ext-1 & 13th the Police Station case number has been noted.
8. The learned defence counsel pointed out that how can the Police Station case number be noted in Ext-7, Ext-1 and Ext-13. It is not disputed by the prosecution that unless F.I.R. is registered at the Police Station at 5.00 P.M. the police station case number cannot be made available. So if the case number is available only at 5.00 P.M. in Purusottam Pur P.S., how could it be noted in the seizure lists prepared at the place of occurrence at 4.30 P.M. and 4.45 P.M. at a distance of 13 K.M. away from the Police Station. The defence argument is that from the aforesaid chain of events it is clear that the seizure lists and the Inquest Report are suspect documents.
9. These doubts raised by the defence have not been answered by the prosecution.
10. In order to prove the charges prosecution had examined six witnesses in all.
(i) P.W. 1 Ramahari Bhuyan, who sustained injuries and claimed to be an eye witness to the occurrence. He admitted that there is bad relations between the parties for the last two years.
(ii) P.W. 2 Prakash Chandra Panda. His evidence is that he had seen the first part of the occurrence and that the accused persons were abusing the Mahanta and the members of the staff and he was going towards Purusottam Pur. He first informed the matter orally at Purusottam Pur Police Station and a station diary entry No. 114 at the Police Station was made but the same was not produced.
(iii) P.W.3 Kalu Bhuyan is an eye witness to the occurrence and informed about the alleged occurrence to the Officer-in-charge, Purusottam Pur at village Ganga Dehuni at about 3 P.M. on 05.04.1991 and the F.I.R. was drawn up. In cross-examination however he has admitted "it is a fact that I did not go to the spot or the place of occurrence where the deceased was being assaulted". He was standing at a distance of about 10 to 15 cubits away from the deceased at his back side.
(iv) P.W.4 Dr. Narayan Kishore Mohanty, lecturer F.M.T. Department, M.K.C.G. Medical College, Berhampur conducted the post mortem on 06.04.1991 over the dead body of the deceased Bhima Bhuyan and found one penetrating injury on the chest. His report was marked as Ext.-9. P.W. 4 did not find any injury on the scalp, skull, meninges or brain of the deceased.
(v) P.W. 5 Dr. I. Narasingh Rao, was lecturer in Surgery Department of M.K.C.G. Medical College and conducted the operation on injured Ramahari Bhuyan (P.W. 1) and found several injuries on his body and his report was marked as Ext. 11/1.
(vi) P.W. 6 Subash Chandra Swain is the Officer-in-charge attached to Purusottampur Pur Police Station. He received the oral information from Kalu Bhuyan (P.W. 3) in the village Ganga Dehuni at about 3.00 P.M. of 05.04.1991 and reduced the same into writing on a plain paper and sent the same to the Police Station for registration as F.I.R. (Ext. 8). The F.I.R. was drawn up in the Police Station by S.I., J.K. Behera at about 5.00 P.M. on 5.4.1991.
11. P.W. 6, the Officer-in-charge of Purusottam Pur Police Station stated in his evidence that on 7.4.1991 at 6.00 P.M. in the evening he reached Chhatrapur Sub-Divisional Hospital where he found that all the accused persons were being treated as indoor patients. He seized one rose colour Lungi and one napkin, which were bloodstained, from the possession of accused Danda Naik. On the same evening he seized one blue colour Lungi stained with blood from accused Bhagaban Naik. On 16.4.1991 he arrested all the four accused persons and forwarded them to the Court on the next day. In cross examination also P.W.6 deposed that he found the accused persons in the Sub-divisional Hospital on 7.4.1991 with bleeding injury on their persons and before him accused Sima @ Simanchal Naik reported about the assault on him by Bhima, Ramahari and Kalu and others. The said report was reduced to writing by P.W.6 and that is marked as Ext. A and a case was registered being Purusottam Pur P.S. Case No. 74/91 under Sections 147/148/323/324/325/149 of I.P.C. corresponding to G.R. Case No. 167 of 1991. P.W. 6 took up the investigation of that case and after completion of investigation, submitted the charge sheet on 24.1.1992 against Kalu Bhuyan, Sania Bhuyan, Jaya Bhuyan, Ramahari Bhuyan, Deba Behera and Para Behera. P.W.6 issued injury requisition for the medical examination of the accused persons. The occurrence of the said case had taken place on 5.4.1991 at about 11.30 A.M. by the side of Nelia Bandha bank of the village road. The injury reports of the accused persons have been proved as Ext. B/1, C/1, D/1, E/1, G/1, H/1 and J/1.
12. The injury of Simanchal Naik was swelling over left fore arm at its lower half and was caused probably by means of hard and blunt substance. The injury of Bhagaban Naik was lacerated wound of 2" x 1" x bone deep (1") over right parietotemporal region 6" above the right ear caused probably by means of hard and blunt substance and was found to be grievous in nature. The injury of Dandapani Naik was lacerated wound of 4" x 1 1/2" x bone deep over left froato-parietal region of the scalp and the same was inflicted by means of Kati which is a sharp cutting weapon. The injury of Debaraja Naik was 6" x 1 1/2" bone deep also situated over left parieto-frontal region and that was also reported to be a bleeding injury. The injury reports are also available from the L.C.R. There is no explanation by the prosecution about these injuries on the accused persons.
13. In this case the defence examined two witnesses, Baya Bhuyan D.W. 1 said that accused Simanchal Naik is in litigating terms with the Mohant of the Math over a plot of land and deceased Bhima and Ramahari Bhuyan (P.W. 1) and Kalu Bhuyan (P.W. 3) and one Sania Bhuyan with the help of the Mohant demolished the house constructed by Sima Naik over the disputed land. He further deposed that between 11.00 and 11.30 A.M. on the date of occurrence, i.e. 5.4.1991 P.W. 1 Ramahari, P.W. 3 Kalu and Sania Bhuyan and deceased Bhima being armed with Kati, Chella and Thenga etc. came near the house of Sima and abused the wives of the accused persons while the accused persons were thatching their houses. On that the accused persons protested and then these persons assaulted the accused persons and their wives. While the assault was going on the Sarpanch, Sivaram Mohapatra arrived there. After assault, P.Ws. 1, 3, Sania Bhuyan and deceased Bhima came back to the Math and the accused persons and their wives went to Chhatrapur Hospital. In cross-examination the witness deposed that these facts were stated by him to the police during the course of investigation.
14. The prosecution did not challenge the aforesaid version of D.W.1 by confronting the Investigating Officer with the same. In fact the Investigating Officer P.W.6 was not asked any question on the statement of D.W. 1.
15. D.W. 2, Sivaram Mohapatra, the Sarpanch of Gangadehuni Gram Panchayat deposed that there was litigation between Sima and Mohant of the village. On 5.4.1991 at about 11.30 A.M. while he was about to go to Purusottampur Block Office, he found Gondogol was going-on near the houses of Baya Bhuyan and accused Sima Naik. At that time he found Sania Bhuyan, Kalia Bhuyan, Gora Bhuyan and five to six other persons returning to the math holding Katis and chelas etc. Seeing this, he returned to the house, but after some time he came to Purusottampur and found the accused persons and their wives were being carried in injured condition. He was not examined by the police during the course of investigation. In cross-examination he said he did not go to the Purusottampur Police Station to report the incident and nor did he make any statement before the police.
16. Another notable feature of this case is that even though P.W. 6, the Investigating Officer admitted in his cross-examination that he met all the accused persons on 7.4.1991 as they were admitted in Chatrapur Subdivisional Hospital as indoor patients and an F.I.R. was lodged on 5.4.1991 wherein all the accused persons were named, but the Investigating Officer did not arrest them and they were arrested at a much later point of time on 16.4.1991. There is no explanation for this delayed arrest of the accused persons. It is nobody's case that the accused persons were absconding or hiding.
17. Apart from that, it appears that the counter case which was initiated on the investigation made by P.W. 6 and in respect of which he filed the charge sheet, should have been tried along with the main case. The learned Sessions Judge has recorded a cryptic finding in the judgment under appeal that the case instituted at the instance of the accused persons cannot be called a counter case, as according to the learned Judge, as per the version of the D.Ws the occurrence took place in the house of the accused persons. But it is the prosecution case that the murder took place at serial No. 26 which is shown in the sketch map and it is at a distance of hardly 50 yards from the house of accused Sima Naik. P.W. 1 Danda Naik in his cross-examination stated that the house of the accused persons is close to the place of occurrence and also stated that at the time of occurrence the accused persons and their wives were at the spot. Therefore, the case which has been registered by P.W.6 on the statement of Sima Naik is a counter case and both should have been tried together.
18. This is an old and accepted principle of criminal jurisprudence that the case and the counter case should be tried together by the same Judge for the ends of justice. Reference in this connection may be made to a decision of the Madras High Court in the case of Thota Ramakrishnayya and others v. The State . In that case the learned Judge after examining various decisions of different High Courts held that where there is a fight between two rival factions which gives rise to complaint and counter complaint it is a generally recognized rule that both the cases should be tried by the same Judge in quick succession. This salutary principle of criminal law has been laid down by the learned Judge in paragraph 39 of the said judgment. The principles which have been laid down in paragraph 39 are set out below:
Therefore, the following four tests have been laid down by all the High Courts in innumerable cases to fix the culpability of the accused viz, whether they had a motive to share the common object and be present at the unlawful assembly and participate in the acts of violence therein; secondly, whether they committed the acts proved by well corroborated evidence and which would establish affirmatively their common object, presence and participation; thirdly, whether the names of these persons have been mentioned at the earliest instance; and finally the exonerating pleas of these persons and how far they can be acted upon....
The said judgment was rendered by the learned Judge relying on various judgments, namely the judgment in the case of Periaswami v. Emperor reported in 1937 Madras Weekly Notes 998 and also the judgment in the case of Banappa Kailappa v. Emperor reported in AIR 1944 Bombay 146. Subsequently the Hon'ble Supreme Court in the case of Kewal Krishan v. Suraj Bhan and Anr. reported in 1981 SCC (Criminal) 438 came to the same conclusion that the case and the cross-case should be tried separately by the same Court. In coming to the said conclusion, the learned Judges of the Supreme Court approved the ratio, rendered in the case of Banappa Kallapa Ajawan v. Emperor reported in AIR 1944 Bombay 146 and also the ratio in the case of Periaswami v. Emperor reported in 1937 Madras Weekly Notes 998.
19. Apart from the aforesaid infirmity, this Court finds that there is a delay of about more than 10 days in arresting the accused persons even though the accused persons were available as indoor patients in the Government Hospital and the Investigating Officer met them in the Hospital on 7.4.1991. Such delayed arrest in a case like this when there is a case and counter case and when there is bitter enmity between the parties has been criticized by the Hon'ble Supreme Court specially when no explanation has been offered by the prosecution about the delay. Reference in this connection may be made to the judgment of the Hon'ble Supreme Court in the case of Sundarlal v. State of M.P. (See paragraphs 15 & 16). Similar views have been expressed recently by another Bench of the Supreme Court in the case of Nagarathinam and Ors. v. State . In paragraph 27 at page 299 of the said judgment, the learned Judges of the Supreme Court adversely commented on the acts of the Investigating Officer in not arresting the accused persons. The said observations are quoted below:
27. The Investigating Officer did not explain as to why the appellants were not put under arrest on the date of occurrence itself, despite the fact that they were admitted in the hospital. The cause for delay in arresting the accused has not been explained at all.
20. Now on the question of prosecution not explaining the injuries sustained by the accused persons, several decisions have been cited at the bar. In one of that decisions rendered in the case of Lakshmi Singh and Ors. v. State of Bihar reported in 1976 SCC (Cri.) 671, Hon'ble Supreme Court held when the prosecution fails to explain injuries on the person of an accused, depending on the facts of each case, any of the three results may follow:
(1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self-defence.
(2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt.
(3) It does not affect the prosecution case at all.
21. The above observations were made by the Hon'ble Supreme Court by relying its previous judgment in case of Puran Singh v. State of Punjab and also in the case of State of Gujarat v. Bai Fatima . After laying down the aforesaid propositions, the Hon'ble Supreme Court further stated that in a murder case, the non-explanation of the injuries sustained by the accused at or about the time of occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences (1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;
(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;
(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.
The learned Judges held that this omission on the part of the prosecution to explain the injuries on the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution case.
In the instant case, admittedly there was bad blood and enmity between the parties and the witnesses are inimical and here the defence version certainly competes in probability with the prosecution case. On the basis of defence version a case was registered and investigated by P.W. 6 and charge sheet was filed. The evidence of the defence witnesses has not been dislodged. The injuries which were sustained by the accused persons, except the ones which were sustained by accused Sima Naik are on vital parts of the body, namely, on the parietal region and are not superficial injuries. So the ratio in Lakshmi Singh (supra) is very much applicable here. The principles in Lakhsmi Singh have been relied upon by the Hon'ble Supreme Court in innumerable cases and as late as in 2006, in the case of Raj Pal v. The State of Haryana even though in view of different facts, the plea of private defence was not extended to the accused. Apart from the aforesaid judgment in the case of Lakshmi Singh, reliance can also be placed on the subsequent judgment of the Supreme Court in the case of Nagarathinam (supra) where also there is no explanation for the injuries suffered by the accused persons. In that context the learned Judges held that the right of private defence by the appellant could not be ruled out and the learned Judges held that since the prosecution failed to show beyond all reasonable doubt that the accused persons were the aggressors they were entitled to acquittal.
22. In the instant case also, the learned Counsel for the defence urged the right of private defence of the accused. The concept of private defence rests on the principle that it is lawful for a person to use a reasonable degree of force to protect himself or another against any unlawful use of force which is directed towards him. Such exercise of private defence must bear a reasonable proportion to the severity of the attack which is sought to be thwarted. The law, however, does not concern itself with niceties in such matters. The well-known dictum of Lord Oaksey in Turner v. M.G.M. Pictures Ltd. (1950) 1 All E.R. 449, is "If you are attacked by a prize-fighter you are not bound to adhere to the Queensberry rules in your defence." (see page 471). But one thing is clear that the person using the right of private defence will not be justified in going beyond what is reasonable insuch a situation. The aforesaid principle has also been accepted by the Hon'ble Supreme Court in the case of State of U.P. v. Ram Swarup . In that case Justice Chandrachud (as His Lordship then was) speaking for a Three-Judge Bench held in paragraph 14 at page 1574 of the report :
...While providing for the right of private defence, the Penal Code has surely not devised a mechanism whereby an attack may be provoked as a pretence for killing.
23. In Ram Swarup it has been further held that unlike a civil case in a criminal trial an accused need not plead that he acted in private defence. Yet the Court may find from the evidence of the witnesses examined in the case either that what would otherwise be an offence is not one because the accused has acted within the strict confines of his right of private defence or that the offence is mitigated because the right of private defence has been exceeded. The learned Judges have also held that under Section 105 of the Evidence Act when a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Penal Code, is upon him. Sections 96 to 106 of the Penal Code define the limit of the right of private defence and that constitutes a general exception to the offences defined in the Code. But the burden rests on the accused only to prove that any of the general exceptions is attracted. This, however, does not absolve the prosecution from discharging its initial burden which never shifts unless the statute displaces the same. The learned Judges have held that an accused may fail to establish affirmatively the existence of circumstances which would bring the case within the general exception. While discharging the burden under Section 105 of the Evidence Act, it may be enough to cast a reasonable doubt on the case of the prosecution and in that event the accused may be entitled to acquittal. The learned Judges very clearly pointed out that the burden which rests on the accused to prove the exception is not of the same rigour as the burden of the prosecution to prove the charge beyond any reasonable doubt. The burden on the accused in such a circumstance, as in a civil case, can be discharged on the preponderance of probabilities.
24. Keeping this age-old principles in mind, if the Court analyises the evidence in this case, it is clear that of the four accused persons excepting Sima @ Simanchal Naik, the other three accused, namely, Danda Naik, Bhagaban Naik and Debraj Naik are entitled to acquittal in view of right of private defence which has been claimed and which emerges from the facts of the case. But in so far as accused Sima Naik is concerned, there is clear evidence against him of attacking the deceased with a Chelo, a sharp cutting weapon on the right side of his chest. There is consistent evidence of P.W. 1, P.W. 2 and 3 against accused Sima Naik. The evidence of the Doctor, who conducted the post-mortem examination, is that the death of the deceased was due to severe injuries on his chest and the lung was perforated. Such an injury cannot be inflicted in exercise of private defence. The injury was caused by a sharp cutting weapon inflicted on the chest of the deceased with an intention to kill the deceased. But the involvement of other three accused persons in connection with the so called attack on the deceased and P.W. 1 is not established by the prosecution.
25. In so far as attack on P.W. 1 is concerned, P.W. 5 the Medical Officer, who examined him, stated in cross-examination that nobody identified P.W. 1 to him. It is claimed by the prosecution that P.W. 1 was admitted as an indoor patient. No such document was produced or no bed head ticket or discharge certificate from the hospital was proved. In the absence of proper identification of P.W. 1 to the Doctor (P.W. 5) and specially when it is not the prosecution case that P.W. 5 personally knows P.W. 1, the report Ext. 11 is a doubtful one and reliance cannot be placed on the same. Therefore, other accused persons, namely, Danda Naik, Bhagaban Naik and Debaraj Naik are acquitted of the charges under Sections 302/34 and 307/34, IPC.
26. Learned Counsel for the prosecution has relied on two judgments which are not attracted to the facts of the present case. The first one is a decision of the Supreme Court in the case of Mohinder Singh and Ors. v. State of Punjab reported in 2006(5) Supreme 62. The learned Counsel placed reliance on paragraphs 8 and 9 of the said judgment. In that case the learned Judges of the Supreme Court held that the injuries inflicted on the accused persons were simple in nature and grievous nature of the injuries could not be proved by the Doctor. In that case the learned Judges held that where the injuries are simple in nature and where the defence version does not compete in probabilities with the prosecution case in such a case, non-explanation of the injuries on the accused will not affect the prosecution case. But here as noted above, the injuries are on the vital parts of the body of all the accused persons, except Sima and the injuries compelled the accused persons to remain for treatment in a Government hospital for more than ten days and the fact that there was ill relationship between the members of the prosecution and the accused party is also admitted by the prosecution. On the top of that, the defence version competes in probabilities with the prosecution case about the right of private defence. Therefore, the decision in Mohinder Singh's case (supra), given on a different fact situation, cannot be applied here.
27. The other decision relied upon by the learned Counsel for the prosecution is in the case of Radhan Mohan Singh @ Lal Sahed and Ors. v. State of U.P. reported in 2006 (1) Supreme 371. The learned Counsel for the prosecution has placed reliance on paragraph 12 of the said decision in order to contend about the evidentiary value of the inquest report. The observations made in paragraph 12 of the report were about the contents of the inquest report. That has no relevance here.
28. In this case, the defence in order to show that the investigation has been conducted in a slipshod manner highlighted that the time mentioned in the inquest report cannot be correct and in all probabilities the said report was prepared at a later point of time and the time which was shown on it is not the correct time. This has been urged in order to point out that the prosecution tried to suppress the evidence and in doing so the investigation has been slipshod and has been conducted in a manner which does not inspire confidence and that creates doubt about veracity of the prosecution case. Therefore, the decision of the Supreme Court in the case of Radha Mohan Singh (supra) has no bearing on the issue involved in this case.
29. Therefore, considering all the aspects of the case, this Court allows this appeal so far it relates to accused Danda Naik, Bhagaban Naik and Debraj Naik, They are acquitted of charges both under Sections 302/34 and 307/34, IPC. But so far as accused Sima Naik is concerned, the appeal is dismissed. The order of conviction and sentence passed against him is upheld. The accused Danda Naik, Bhagaban Naik and Debaraj Naik stand discharged from their bail bonds. The bail bond in respect of accused Sima @ Simanchal Naik is cancelled and he shall surrender to the custody to serve out the sentence as has been imposed on him by the learned 1st Additional Sessions Judge, Berhampur.
N. Prusty, J.
30. I agree.