Pravat Chandra Mohanty vs State Of Orissa on 9 November, 2020

[Cites 32, Cited by 0]

Orissa High Court

Pravat Chandra Mohanty vs State Of Orissa on 9 November, 2020

Bench: S.K. Sahoo

THE HIGH COURT OF ORISSA, CUTTACK

CRA No. 207 Of 1988

From the judgment and order dated 29.08.1988 passed by the
Asst. Sessions Judge -cum- Additional Chief Judicial Magistrate
(Special), Cuttack in Sessions Trial No. 246 of 1985.
----------------------------

Pravat Chandra Mohanty ......... Appellant

-Versus-

State of Orissa ......... Respondent

CRA No. 210 Of 1988

Pratap Kumar Choudhury ......... Appellant

-Versus-

State of Orissa ......... Respondent

For Appellant: - Mr. Yasobant Das
(in CRA No. 207 Of (Senior Advocate)
1988)

For Appellant: - Mr. Devashis Panda
(in CRA No. 210 Of
1988)

For State of Odisha: - Mr. Lalatendu Samantaray
Addl. Govt. Advocate
-------------------------------

P R E S E N T:

THE HONOURABLE MR. JUSTICE S.K. SAHOO
------------------------------------------------------------------------------------------------------------
Date of Hearing: 20.10.2020 Date of Judgment: 09.11.2020
------------------------------------------------------------------------------------------------------------
2

S. K. SAHOO, J. The appellant Pravat Chandra Mohanty (hereafter

'Pravat Mohanty') in CRA No.207 of 1988 and appellant Pratap

Kumar Choudhury (hereafter 'P.K. Choudhury') in CRA No.210 of

1988 faced trial in the Court of learned Asst. Sessions Judge

-cum- Additional Chief Judicial Magistrate (Special), Cuttack in

Sessions Trial No. 246 of 1985 for the offences punishable under

sections 304, 342, 323, 294, 201, 167, 477-A, 471 read with

section 34 of the Indian Penal Code.

The learned trial Court vide impugned judgment and

order dated 29.08.1988, though acquitted the appellants of the

charges under sections 294, 201, 167 and 477-A read with

section 34 of the Indian Penal Code, however found them guilty

under sections 304 Part-II, 342, 323, 471 read with section 34

of the Indian Penal Code. The appellants Pravat Mohanty and

P.K. Choudhury were sentenced to undergo rigorous

imprisonment five years and eight years respectively for the

offence under section 304 Part-II of the Indian Penal Code. Each

of the appellants was sentenced to undergo rigorous

imprisonment for three years for the offence under section 471

of the Indian Penal Code, rigorous imprisonment for three

months for the offence under section 342 of the Indian Penal

Code, rigorous imprisonment for one month for the offence
3

under section 323 of the Indian Penal Code and all the sentences

were directed to run concurrently.

The appeal of the appellant Pravat Mohanty was

presented on 30.08.1988 which was admitted on 31.08.1988

and he was directed to be released on bail on the same day.

Similarly, the appeal of appellant P.K. Choudhary was presented

on 31.08.1988 which was admitted on 01.09.1988 and he was

also directed to be released on bail on the same day.

2. The prosecution case, as per the first information

report (Ext.1) lodged by Kusia Nayak (P.W.1) on 05.05.1985

(Sunday) at 11 a.m. before the D.S.P., City, Cuttack(S) is that

the informant was staying in a rented house of one Bishnu

Mohanty of Rajabagicha, Cuttack. On 02.05.1985 he had been to

Nayagarh in connection with the marriage of his nephew and

returned home to Cuttack in the morning hours of 04.05.1985.

After arrival, he was informed by his wife Kanchan Dei (P.W.18)

that there was quarrel between their Basti residents Sura and

Bainshi on Friday. He went to the market and returned at about

4 p.m. when his wife told him that Pramod Naik, Benu Naik and

Guna Naik were abusing her in filthy language and telling her to

drive out her family members as they had no houses and no

holding numbers. The informant was also told by his wife that
4

Thana Babu of Purighat police station had called him to go to the

police station. After sometime, Kasinath Naik (hereafter 'the

deceased') also told the informant that the constable had come

and told him in that respect. Accordingly, both the informant and

the deceased decided to go to Purighat police station. In the

evening hours, when both of them reached at Purighat police

station, one police officer having mustache told the deceased

that on the next time, he would cause fracture of the hands and

legs of the son of the deceased by assaulting him as the later

had filed a case against him before the Legal Aid. The deceased

remained silent. The said police officer also used slang language

against the deceased and told that he belonged to Alisha Bazar,

Cuttack and he would not allow the family of the deceased to

stay at Cuttack and no lawyer could do anything to him. The

deceased replied to the said police officer that on being

assaulted, his wife and son had filed the case before the Legal

Aid and he did not know anything in that respect.

It is further stated in the first information report that

the said police officer having mustache gave a kick to the

deceased and again used slang language and also gave two

blows on the hands of the informant and also kicked him. Then

said police officer having mustache further assaulted the
5

deceased who cried aloud and in that process, he sustained

bleeding injuries on his body. The informant was asked to wait in

one room of the police station and the deceased was taken to

the other side verandah of the police station and was assaulted.

Though the informant was not able to see the assault but he

could hear the cries of the deceased. Then the police officer

called the informant outside and after he came out, he saw the

appellant Pravat Mohanty assaulting the deceased by means of a

stick and the deceased was crying aloud. The informant gave

water to the deceased on being told by the police officer but the

deceased was having no strength to walk and he was just

crawling. The deceased came near the informant and he was

having bleeding injuries on his hands and necks and the legs

were swollen. The deceased was telling that he would not survive

and would die. When the deceased sought permission to attend

the call of nature, the police officer having mustache and

appellant Pravat Mohanty further assaulted him. When the

deceased again requested to attend the call of nature, with

permission of the police officer, the informant took him for such

purpose and after they returned, the appellant Pravat Mohanty

asked the deceased as to why he was limping. The deceased was

given bread to eat but when he refused, appellant Pravat

Mohanty compelled him to take bread and further assaulted him
6

on his knee. Getting indication from the constable, the informant

concealed the bread and told the police officer that the deceased

had already taken the bread. The said police officer brought

liquor in a bottle and poured it in the mouth of the deceased as

well as the informant and then sprinkled liquor over them and

went outside of the police station. Sura Naik (P.W.13) who

belonged to the Basti of the informant came to the police station

and talked with one Mishra Babu secretly but on seeing the

deceased and the informant, he went away. Then appellant

Pravat Mohanty again assaulted the deceased and asked him to

sit in a vehicle to go to the hospital. At that time, it was 11 to 12

O' clock in the night. The appellant Pravat Mohanty, a driver and

a constable lifted the deceased and placed him inside the vehicle

and he was crying that he would not survive. When the

informant expressed his eagerness to accompany the deceased

to the hospital, he was told that there was no necessity to

accompany the deceased even though the deceased was calling

the informant to accompany him. After the deceased was taken

away from the police station, one constable chained the left leg

of the informant to a table of the police station and in the

morning hours, the informant was untied as per the instruction

of the appellant Pravat Mohanty. One sweeper was called to the

police station and he was asked to clean the blood and stool of
7

the deceased which was lying at different places inside the police

station. At that time the informant came to know that the

deceased had died in the hospital last night. The widow of the

deceased had also come to the police station crying but she was

not allowed to stay there by the Havildar. It is mentioned in the

first information report that the police officer having mustache

was a fair and tall person.

On receipt of such first information report, Purighat/

Lalbag P.S. Case No.273 of 1985 was registered under sections

302, 342, 323, 294, 201 read with section 34 of the Indian Penal

Code on 05.05.1985 at 11 a.m. against appellant Pravat

Mohanty and the other police officer of Purighat police station

having mustache.

3. As per the oral communication of the order of the

Director General of Police, P.W.39 Gagan Bihari Mohanty who

was working as Inspector, C.I.D., C.B., Cuttack proceeded to

Lalbag police station, where he found the informant Kusia Naik

(P.W.1) lodging the oral report before the City, D.S.P. which led

to the registration of Purighat/Lalbag P.S. Case No.273 of 1985.

P.W.39 was directed by the Director General of Police to

investigate this case and also to take over charge of

investigation of two other connected cases i.e. Purighat/Lalbag
8

P.S. Case No.269 of 1985 which was registered at the instance of

P.W.13 Sura Naik on 03.05.1985 and Purighat/Lalbag P.S. Case

No.272 of 1985 which was registered stated to be at the instance

of the deceased on 04.05.1985 and the appellant P.K. Choudhury

was the investigating officer of those two cases.

The appellant P.K. Choudhury was placed under

orders of suspension on 05.05.1985 and appellant Pravat

Mohanty was transferred. On 06.05.1985 P.W.38 Jayadeb

Sarangi, S.I. of Police attached to Purighat police station took

charge of investigation of Purighat/Lalbag P.S. Case

No.272/1985 from appellant P.K. Choudhury and on the death of

the deceased, he intimated the learned S.D.J.M., Cuttack to

convert the case to one under section 302 of the Indian Penal

Code. Accordingly, as per order dated 07.05.1985, the learned

S.D.J.M. added section 302 of the Indian Penal Code in

Purighat/Lalbag P.S. Case No.272/1985.

During course of investigation in Purighat/Lalbag P.S.

Case No.273/1985, P.W.39 examined the informant (P.W.1) and

then proceeded to Purighat police station which was situated by

the side of Kathajori river embankment. He noticed blood stains

on the floor of the office room, verandah of Purighat police

station and also in the police jeep. He sent requisition to the
9

Director of State S.F.S.L., Rasulgarh for sending the Scientific

Officers for collection of physical evidence. At about 7.00 p.m. on

05.05.1985, he examined a constable (P.W.9) and then

proceeded to S.C.B. Medical College and Hospital, Cuttack along

with the informant and issued requisition for his medical

examination and received the report of the informant from the

Medical Officer on the same day. At about 11 O' clock in the

night on 05.05.1985, he seized one white dhoti having stains of

blood and stool (M.O.I), one Ganji having blood stains (M.O.II),

one silver 'deunria' with thread (M.O.III) and one steel ring tied

in a piece of torn dhoti (M.O.VI) under seizure list Ext.11 on

being produced by Havildar Brahmananda Behera (P.W.8) of

Purighat police station who had accompanied the dead body to

mortuary and brought those articles after post mortem

examination. One khaki half pant and khaki half shirt of the

informant (P.W.1) were seized under seizure list Ext.12 from

which smell of liquor was coming. Those pants and shirts were

given in the zima of P.W.1 as per zimanama Ext.57. On the same

day at about 11.45 p.m., the station diary entry book of Purighat

police station maintained from 29.04.1985 to 05.05.1985, the

command certificate book of the police station, one bamboo lathi

having blood stain (M.O.IV), one wooden batten (M.O.VII) were

seized under seizure list Ext.13. The Scientific team arrived at
10

Purigaht police station around midnight on 05.05.1985 and

inspected the spot and collected physical evidence. P.W.39

reached at Rajabagicha in the night and visited the Basti where

the deceased and the informant were staying. He examined

some witnesses and on 06.05.1985, he conducted some seizures

including the police jeep of Purighat police station and gave the

jeep in the zima of the driver of the police station under

zimanama Ext.58. He also seized the sample packet collected by

the Scientific Officer under seizure list Ext.9 and received the

autopsy report on 06.05.1985. Since the deceased was working

as a Jamadar in Cuttack Municipality at the time of occurrence,

his admitted handwritings were seized under seizure list Ext.4 on

production by the Accountant and the Head Clerk of the Cuttack

Municipality Office. On 8.5.1985 P.W.39 applied before the

learned C.J.M., Cuttack for permission to seize the original F.I.R.

in Purighat/Lalbag P.S. Case No.272/1985 from the Court office

which was stated to have been lodged by the deceased. He made

certain queries in writing to the doctor (P.W.37) who had

conducted post mortem examination over the dead body of the

deceased and received the reply from him. He examined some

more witnesses and visited the spot as per Purighat/Lalbag P.S.

Case No.272/1985 which was stated to be situated in front of

Rajabagicha High School. During course of further investigation,
11

he obtained the certified copy of the order sheet in I.C.C. Case

No.28 of 1985 from the Court of learned S.D.J.M., Sadar,

Cuttack which was filed by the son of the deceased namely

Sukanta Nayak (P.W.34) against appellant P.K. Choudhury and

another police officer. P.W.39 verified the records of

Purighat/Lalbag P.S. Case No.269/1985 which was lodged by

P.W.13 Sura Nayak on 03.05.1985 in which neither the deceased

nor the informant (P.W.1) was named as accused in the F.I.R.

The viscera of the deceased collected during post mortem

examination were sent to S.F.S.L., Rasulgarh for examination

with the permission of C.J.M., Cuttack. P.W.39 moved the

learned S.D.J.M., Sadar, Cuttack on 13.05.1985 for conducting

T.I. parade in respect of the appellant P.K. Choudhury. He also

seized the F.I.R. in Purighat/Lalbag P.S. Case No.272/1985 from

the office of the C.S.I. under seizure list Ext.39 after obtaining

permission of the learned C.J.M., Cuttack. After appellant P.K.

Choudhury surrendered in the Court, test identification parade in

his respect was conducted on 25.05.1985 by P.W.24, learned

J.M.F.C., Cuttack in which P.W.1 identified the appellant. P.W.39

took over charge of investigation of Purighat/Lalbag P.S. Case

Nos. 269/1985 and 272/1985 from S.I. Jayadev Sarangi

(P.W.38) on 26.05.1985. He sent bamboo lathi (M.O.IV) and

wooden batten (M.O. VII) to the doctor (P.W.37) who conducted
12

autopsy for his opinion and received the opinion as per Ext.49.

On the prayer of the I.O., the learned S.D.J.M., Sadar, Cuttack

sent different exhibits to S.F.S.L., Rasulgarh for chemical

examination on 01.06.1985 and the reports of chemical

examination and serological examination were received and reply

of the autopsy doctor on other queries were also obtained. The

disputed F.I.R. in Purighat/Lalbag P.S. Case No.272/1985 and

the admitted writings and signatures of the deceased were sent

to handwriting expert through S.P., CID, CB, Cuttack for opinion.

A casualty memo of S.C.B. Medical College and Hospital, which

was issued to Mangalabag police station was also seized. Sketch

map (Ext.40) was prepared by the Amin (P.W.32) attached to

the office of Tahasildar, Cuttack and handwriting expert's opinion

was also received. Some of the statements of the witnesses were

recorded under section 164 of Cr.P.C. by the learned S.D.J.M.,

Sadar, Cuttack on the prayer of the investigating officer. The

investigating officer found the inquest report of the deceased as

per Ext.16 was written in the handwriting of the appellant P.K.

Choudhury so also the requisition for the medical examination of

the deceased in Purighat/Lalbag P.S. Case No.272/1985. The

seizure lists Ext.23/3 and Ext.42 in Purighat/Lalbag P.S. Case

No.272/1985 prepared by the appellant P.K. Choudhury and the

case diary of the said case prepared by the appellant in five
13

sheets were also seized. The witnesses shown to have been

examined by the appellant P.K. Choudhury in Purighat/Lalbag

P.S. Case No. 272/1985 were re-examined by the I.O. but they

did not support their alleged previous statements made before

the appellant P.K. Choudhury and also denied to have been

examined by him. The I.O. perused the station diary of Purighat

police station and found that the arrest of the deceased or the

informant in connection with Purighat/Lalbag P.S. Case No.

269/1985 was not shown in it.

On completion of investigation in Purighat/Lalbag

P.S. Case No.269/1985, P.W.39 submitted charge sheet against

some persons other than the informant (P.W.1).

On completion of investigation in Purighat/Lalbag

P.S. Case No.272/1985, P.W.39 submitted final report (Ext.64)

indicating the case to be false.

On completion of investigation in Purighat/Lalbag

P.S. Case No.273/1985, he submitted charge sheet against the

appellants on 22.07.1985 under sections 304/342/323/294/

201/167/471/477-A/34 of the Indian Penal Code.

4. After observing due committal formalities, the case of

the appellants was committed to the Court of learned Sessions

Judge, Cuttack who transferred it to the Court of learned Asst.
14

Sessions Judge -cum- Additional Chief Judicial Magistrate

(Special), Cuttack for trial where the learned trial Court framed

charges on 15.02.1986 against the appellants and since the

appellants refuted the charges, pleaded not guilty and claimed to

be tried, the sessions trial procedure was resorted to prosecute

them and establish their guilt.

5. The defence plea of the appellant Pravat Mohanty

was that he was the Inspector in-charge of Purighat police

station at the relevant time and since many cases were instituted

against the Scheduled Caste community of Rajabagicha area, the

community people were very much aggrieved on him for which

they have deposed falsehood. It was further pleaded that in

another case i.e. Purighat P.S. Case No.140 of 1984, the D.S.P.

and P.W.39 requested him to release the seized motorcycle but

he did not keep their request for which they were aggrieved and

that they were in search of an opportunity to put him in trouble

and accordingly, P.W.39 had arranged false evidence against

him. It is the further defence plea that the deceased Kasinath

along with the informant (P.W.1) came to Purighat police station

in the occurrence night to lodge F.I.R. regarding assault on the

deceased on the Kathajori river embankment at about 9 p.m.

who had sustained bleeding injuries and on such F.I.R.,
15

Purighat/Lalbag P.S. Case No.272/1985 was registered and that

deceased was not assaulted in Purighat police station.

The defence plea of the appellant P.K. Choudhury

was that he was the Senior Sub-Inspector attached to Purighat

Police Station at the time of occurrence. Sukanta Naik (P.W.34),

who was the son of the deceased was an anti-social element and

many cases were instituted against him at Purighat police station

and he was taking action against P.W.34 for which P.W.34 along

with others deposed against him as they wanted to demoralize

the police. P.W.34 filed a complaint case against him and one

P.K. Jaysingh, another S.I. of police of Purighat police station.

Sura Naik (P.W.13) lodged an F.I.R. on 03.05.1985 in Purighat

police station which was entrusted to him for investigation by the

appellant Pravat Mohanty. It was further pleaded that P.W.39

was hostile towards him for which he arranged false evidence

against him. It is the further defence plea that the deceased

Kasinath had come to the police station in the night of

occurrence at about 9.50 p.m. with bleeding injuries and he was

not assaulted inside Purighat police station and on the basis of

the F.I.R. of the deceased, Purighat/ Lalbag P.S. Case

No.272/1985 was registered and the seizure made by him in that

case was true. It was pleaded that in the night of occurrence, he
16

arrested P.W.1 and the deceased and detained them in the police

station.

6. In order to prove its case, the prosecution examined

thirty nine witnesses.

P.W.1 Kusia Naik is the informant in the case. He is

an eye witness to the assault on the deceased inside Purighat

police station and he himself is an injured.

P.W.2 Khetrabasi Behera was the Senior Scientific

Assistant of F.S.L., Bhubaneswar. He came to Purighat police

station during the midnight on 05.05.1985 along with A.S.I.

Photographer and S.I. of Finger Print on receipt of requisition

from the investigating officer for inspection of the spot. He found

blood stain marks on the floor of the room of the police station

and collected sample. He also noticed blood stain in the police

jeep bearing registration no.OSU 6632 and collected sample. He

directed the photographer to take photographs of different

places at the spot and the articles and kept those articles in a

sealed packet and handed over to the investigating officer for

sending it to the Director of S.F.S.L. for testing. He proved his

report Ext.2.
17

P.W.3 Sudarsana Naik, who was working as a

sweeper in Purighat Police Station, is a witness to the seizure of

broomstick M.O.V. as per seizure list Ext.3. He was declared

hostile by the prosecution.

P.W.4 Surendra Kumar Das, who was working as a

Junior Assistant in Cuttack Municipality, is a witness to the

seizure of some documents produced by the Office Accountant

before the I.O. of the case which were seized under seizure list

Ext.4. He also identified the signatures of the deceased on the

Pay Cards supplied to the sweepers of the Municipality as the

deceased was working as a Jamadar in Cuttack Municipality. He

is also a witness to the seizure of Pay Cards vide seizure list

Ext.5 and identified the signatures of the deceased in the reports

Exts.6, 7 and 8.

P.W.5 Jogi Naik is a witness to the seizure of one

jeep vide seizure list Ext.9 and eight packets containing blood

stained cemented earth vide seizure list Ext.10.

P.W.6 Kailash Naik is a witness to the seizure of one

dhoti, one banian, one silver DEUNRIA, one steel ring vide

seizure list Ext.11. He is also a witness to the seizure of Khaki

Pant and Khaki half-shirt of Kusia Naik (P.W.1) vide seizure list

Ext.12 as well as one wooden batten (M.O. VII), one bamboo
18

lathi (M.O. IV), some khatas and papers vide seizure list Ext.13.

He is also a witness to the seizure of broomstick (M.O. V) vide

seizure list Ext.3. He is also a witness to the seizure of eight

paper packets containing blood stains collected from the floor

vide seizure list Ext.10.

P.W.7 Malati Bewa, who is the widow of the deceased

Kasinath, is a post occurrence witness and she identified the

wearing apparels put on by her husband at the time of going to

the police station vide M.O.I, M.O.II, M.O.III, M.O.VI and

M.O.VII. She stated about her husband and P.W.1 going to

Purighat police station at about sunset time on the date of

occurrence. She also came to Purighat police station along with

others during the occurrence night at about 10 p.m. and heard

cries of her husband 'MALO MARIGALI MARIGALI' and when they

made an attempt to enter inside the police station, they were

prevented by some police personnels.

P.W.8 Brahamananda Behera, who was posted as a

Havildar in Purighat Police Station at the relevant point of time,

did not support the prosecution case for which he was declared

hostile.

P.W.9 Baidhar Mohanti was the Constable attached to

Purighat Police Station at the relevant time and he stated that
19

the deceased and P.W.1 had come to the police station and gave

an application to appellant P.K. Choudhury who asked them to

meet appellant Pravat Chandra Mohanty. He was also declared

hostile by the custody.

P.W.10 Dr. Gourkrushna Bisal, who was posted as

the Medical Officer in the Casualty of S.C.B. Medical College and

Hospital, Cuttack, examined P.W.1 on 05.05.1985 on police

requisition and noticed two simple injuries on the person of

P.W.1 and prepared his report Ext.18.

P.W.11 Dhruba Charan Das, who was a worker in the

Press, stated to have noticed two scheduled caste persons in

Purighat police station in the night on 04.05.1985. He was

declared hostile.

P.W.12 Maheswar Behera and P.W.13 Sura Naik also

did not support the prosecution case for which they were

declared hostile.

P.W.14 Dr. Kusa Kumar Jajodia was in charge of

Casualty of S.C.B. Medical College and Hospital who received the

deceased Kasinath dead on being produced by Havildar

Brahmananda Behera of Purighat Police Station and gave
20

casualty memo to Mangalabag police station. He proved the

command certificate Ext.14.

P.W.15 Para Dei, who belonged to the Basti of the

deceased and P.W.1, did not state anything regarding the

occurrence.

P.W.16 Biswanath Pandit, who was a Social Worker,

is a witness to the inquest report vide Ext.15.

P.W.17 Maheswar Nayak, who was a Royalty

Collector of sand, stated that on the instruction of the appellant

P.K. Choudhury, he put his signature on a written paper vide

Ext.23.

P.W.18 Kanchana Dei is the wife of P.W.1 who stated

that her husband along with deceased had been to Purighat

police station on the date of occurrence but since they did not

return till 9.00 p.m., she went to the police station in search of

her husband and when she called her husband, the constable

present in the police station abused her and threw a roller stick,

for which she returned to her house. She was declared hostile by

the prosecution.

P.W.19 Sundari Bewa, who is an inhabitant of the

Basti of the deceased, stated that she had been to the police
21

station on the request of the widow of the deceased to ascertain

the whereabouts of the deceased and on reaching at the gate of

the police station, she heard the shriek of a person from inside

the police station and she was not allowed to enter inside the

police station. She again went to the police station at about 10

p.m. with the widow of the deceased and others but they were

not allowed to enter the police station.

P.W.20 Biswanath Naik, who is the younger brother

of the deceased, stated that Havildar Behera Babu had been to

their Basti in search of the deceased and P.W.1 and he had seen

the deceased and P.W.1 going to the police station in the

evening hours.

P.W.21 Harasa Dei, who accompanied the widow of

the deceased to Purighat police station in search of the

deceased, stated that they heard the cry from inside the police

station but they were not allowed to enter inside.

P.W.22 Rukmani Dei also accompanied the widow of

the deceased and others to Purighat police station in search of

the deceased and she stated that they heard the cry of one

person inside the police station but they were not allowed to

enter inside.
22

P.W.23 Madhab Swain did not support the

prosecution case for which he was declared hostile.

P.W.24 Niranjan Das was the J.M.F.C., Cuttack who

conducted T.I. parade in respect of the appellant Pratap Kumar

Choudhary on 25.05.1985 and informant (P.W.1) was the

identifying witness and he correctly identified the appellant. He

prepared the T.I. parade report Ext. 24.

P.W.25 Chakradhar Kar was J.M.F.C., Cuttack, who

recorded the statements of some witnesses under section 164 of

Cr.P.C. vide Exts.25, 26, 27 and 28.

P.W.26 Aramohan Singh was working as A.S.I.,

C.I.D., CB, Photography Bureau who visited the Purighat police

station in the night of occurrence and he took photographs of

blood stains lying at different places in the police station

including the jeep. He also took photographs of the blood stained

dhoti with stool mark, lathi and proved the positives and

negatives of the photographs.

P.W.27 Mohan Kumar Prusty was the handwriting

expert, who after examining the admitted handwritings of the

deceased and the disputed handwritings of the deceased gave

his opinion as per his report Ext.37.
23

P.W.28 Bijaya Kishore Mohanty was the J.M.F.C.,

Cuttack who recorded the statement of P.W.12 under section

164 of Cr.P.C.

P.W.29 Balunkeswar Biswal was the C.S.I. of Cuttack

Sadar Court who stated about the seizure of the F.I.R. in

Purighat P.S. Case No. 272/1985 vide seizure list Ext.39.

P.W.30 Purusottam Lenka, who was an attendant in

the Casualty Department of S.C.B. Medical College and Hospital,

Cuttack stated that he and two police people lifted the patient

(the deceased) to the bed in the Casualty Department in a

stretcher and the doctor examined and declared him dead.

P.W.31 Umesh Chandra Pattnaik was the Senior

Clerk in the Health Office of Cuttack Municipality who produced

the pay cards containing signatures of the deceased before the

I.O. along with the absentee reports which were seized by the

I.O. under seizure list. He also proved the signatures of the

deceased in different documents.

P.W.32 Bhabagrahi Routrai was the Amin attached to

the office of Tahasildar, Cuttack who visited Purighat police

station and prepared the sketch map (Ext.40).
24

P.W.33 Bhagyadhar Bal, who is a resident of the

locality adjacent to Rajabagicha High School stated not to have

heard any hullah on the date of occurrence near the passage

leading to Kathojori even though he was present in his house.

P.W.34 Sukanta Naik, who is the son of the

deceased, is a post occurrence witness and stated about

initiation of a complaint case bearing I.C.C Case No. 28 of 1985

against the appellant Pratap Kumar Choudhary and another S.I.

of Police. He further stated that Ext.A is not the signature of the

deceased.

P.W.35 Bulu Naik, who was working as a sweeper in

S.C.B. Medical College & Hospital stated that on the instruction

of the appellant P.K. Choudhury, he collected wet sand lying in

front of the Casualty verandah of the hospital and kept it in a

piece of paper, which was seized by appellant P.K. Choudhury in

his presence.

P.W.36 Trinatha Naik, who was working as a sweeper

in S.C.B. Medical College & Hospital, Cuttack stated about the

collection of sample earth from Casualty Ward by P.W.35 which

was seized by police under seizure list Ext.42.
25

P.W.37 Dr. Debendra Kumar Pattnaik was the

Assistant Surgeon of F.M.T. Department of S.C.B. Medical

College & Hospital, Cuttack, who conducted autopsy over the

dead body of the deceased and proved his report Ext.43. He also

gave his opinion on the requisitions submitted by the

investigating officer.

P.W.38 Jaideb Sarangi who was working the Sub-

Inspector of police attached to Purighat Police Station was the

investigating officer of Purighat/Lalbag P.S. Case No.272/1985

after taking over the charge from appellant Pratap Kumar

Choudhury.

P.W. 39 Gaganbehari Mohanty was the Inspector,

C.I.D. , C.B., Cuttack is the investigating officer in the case.

No witness was examined on behalf of the defence.

The prosecution exhibited sixty seven documents.

Ext.1 is the F.I.R., Ext.2 is the report of the Scientific Officer

(P.W.2), Exts.3, 4, 9, 10, 11, 12, 13, 39, 42 and 62 are the

seizure lists, Ext.5 is the pay cards, Exts.6, 7 and 8 are the

absentee reports submitted by the deceased in the Municipality

office, Ext.14 is the command certificate issued to P.W.8, Ext.15

is the inquest report prepared by the Executive Magistrate,
26

Ext.16 is the inquest report prepared by the appellant Pratap

Kumar Choudhary, Ext.17 is the dead body challan, Ext.18 is the

report of the medical examination of P.W.1, Ext.20 is the F.I.R.

lodged by P.W.13 in Purighat P.S. Case No.269 of 1985, Ext.21

is the 164 Cr.P.C. statement of P.W.13, Ext. 22 is the casualty

memo issued by P.W.14 to Mangalabag Police Station, Ext. 23 is

the signature of P.W.17 in a seizure list, Ext.24 is the report of

Test Identification parade, Ext.19/3 and Exts.25 to 30 are the

164 Cr.P.C. statements, Exts.31 and 32 are the negative prints

of photographs, Ext.33 is the forwarding letter addressed to the

handwriting experts, Ext.34 is the negative prints of eleven

exposures of handwriting, Ext.35 is the enlarged positive prints

consisting of ten sheets of the disputed documents to be

examined by the Handwriting Experts, Ext.36 is the enlarged

photographs of admitted writings and signatures, Ext.37 is the

report of the Handwriting Expert, Ext.38 is the statement of

reasons of the Handwriting Expert, Ext.40 is the sketch map

prepared by P.W.32, Ext.41 is the certified copy of the order-

sheet in I.C.C. Case No. 28 of 1985, Ext.43 is the post mortem

examination report, Ext. 44 is the endorsement of P.W.37 in the

supplementary query by the I.O., Ext. 45 is the further opinion

of P.W. 37, Ext.46 is the endorsement of the clerk of P.W.37 in

the supplementary query of the I.O., Exts.47, 49 and 51 are the
27

further opinion of P.W.37, Exts. 48 and 50 are the endorsements

of P.W.37 in another supplementary query of the I.O., Ext.52 is

one sheet of case diary written by the appellant Pratap Kumar

Choudhary in Purighat/Lalbag P.S. Case No.269/1985, Ext. 53 is

the signature of appellant Pratap Kumar Choudhary under the

statement of P.W.15 in the case diary of Lalbag/Purighat P.S.

Case No.269/1985, Exts.54 and 55 are the station diary entries,

Ext. 56 is the medical requisition of the deceased, Exts. 57 and

58 are the zimanama, Ext.59 is the forwarding letter to S.F.S.L.,

Ext.60 is the Chemical Examination report, Ext.61 is the

Serological Examination report, Ext.63 is the case diary

maintained by appellant Pratap Kumar Choudhury in

Lalbag/Purighat P.S. Case No.272/1985, Ext.64 is the final report

in Purighat/Lalbag P.S. Case No.272/1985 submitted by P.W. 39,

Ext.65 is the viscera report of the deceased, Ext.66 is the order

copy of D.G. of police and Ext.67 is the supervision note of the

Deputy Superintendent of Police.

The defence exhibited nine documents. Ext.A is the

signature of the deceased in disputed F.I.R. in Lalbag/Purighat

P.S. Case No.272/1985, Ext.B/1 is the statement of P.W.34,

Exts.C, D, E and F are the station diary entries dated 04.05.1985

of Purighat police station, Ext.G is the certified copy of the order
28

dated 20.01.1985 passed in G.R. Case No. 163 of 1985, Ext.H/1

is the certified copy of F.I.R. in Lalbag/Purighat P.S. Case No.49

of 1985 and Ext.J is the certified copy of the charge sheet in

Lalbag/Purighat P.S. Case No.49 of 1985.

The prosecution also proved seven material objects.

M.O.I is the dhoti, M.O.II is the ganji and M.O.III is the

'DEUNRIA' of the deceased respectively, M.O. IV is the bamboo

lathi, M.O.V is the broom stick, M.O.VI is the steel ring of the

deceased, M.O.VII is the wooden batten and M.O.VIII is the shirt

of the deceased.

7. The learned trial Court after analysing the oral as

well as documentary evidence on record came to hold as follows:

Paragraph no.9:

There is nothing to connect the accused persons with

the alleged offence of abusing the ladies in obscene language.

So, the charge under section 294/34 of the Indian Penal Code

does not stand substantiated.

Paragraph no.11:

The first information report (Ext.20) in Purighat/

Lalbag P.S. Case No.269/1985 carries a vivid description of the
29

occurrence and even the names of the witnesses are also

mentioned in it including which person played what specific role

during the occurrence but there is no mention of participation of

the deceased and P.W.1 in it. Accordingly at the outset, it is not

believable that the deceased and P.W.1 had participated in the

offence alleged in Purighat/Lalbag P.S. Case No.269/1985.

Paragraph no.12:

P.W.13 Sura Naik who is the informant in

Purighat/Lalbag P.S. Case No.269/1985 did not support the

prosecution case and turned hostile and gave contrary evidence.

He has also not explained in his evidence why he omitted to

mention the names of the deceased and P.W.1 in his F.I.R. It

seems that P.W.13 subsequently developed his story involving

the deceased and P.W.1 to suit the defence version in the case.

The deceased and P.W.1 had not taken part in the occurrence

alleged by P.W.13 in his F.I.R.

Paragraph no.13:

The appellant Pratap Kumar Choudhury has shown

examination of one Para Dei (P.W.15) in connection with

Purighat/Lalbag P.S. Case No.269/1985 but P.W.15 herself
30

frankly denied to have been examined in that case. Thus P.W.15

falsifies her alleged statement in the case diary of the said case.

Paragraph no.14:

The appellant Pratap Kumar Choudhury has not

mentioned the time and place of arrest of the deceased and

P.W.1 in the case diary of Purighat/Lalbag P.S. Case No.

269/1985 which suggests that it had not taken place and

therefore, the I.O. omitted to write it. The appellant P.K.

Choudhury could not explain this in his statement recorded

under section 313 Cr.P.C. In view of the station diary entries of

Purighat police station, the appellant P.K. Choudhury remained

absent from the police station from 10.15 p.m. till midnight at 12

O' clock and he again came back at 12 O' clock but soon

thereafter he left. The statement of the appellant in his accused

statement that he arrested the deceased and P.W.1 in between

10 p.m. to 12 a.m., appears to be wrong. Though as per the

station diary entry, appellant P.K. Choudhury remained present

in Purighat police station for fifteen minutes between 10 p.m. to

10.15 p.m. but within the said period, he stated to have

maintained the case diary of Purighat/Lalbag P.S. Case No.

272/1985 including examining the deceased and P.W.1 and

issuing medical requisition for the examination of the deceased
31

and left for the spot at 10.15 p.m. It is not possible to do so

many things and then to arrest the deceased and P.W.1 during

such short period of fifteen minutes. It becomes clear that

appellant Pratap Kumar Choudhury could not explain in his

accused statement when he arrested the deceased and P.W.1.

Paragraph no.16:

It becomes clear that the deceased and P.W.1 were

not in fact arrested and the connected parts of case diary in

Purighat/Lalbag P.S. Case No.269/1985 were fabricated to

falsely show that they were arrested.

Paragraph no.19:

The distance between the house of P.W.33 and the

embankment is not very short. It was, therefore not likely that

P.W.33 would be able to hear the sound of noise at the spot. So,

his evidence cannot rule out the possibility of the alleged

incident.

Paragraph no.20:

The occurrence as alleged in the so-called F.I.R. in

Purighat/Lalbag P.S. Case No.272/1985 did not at all take place.
32

Paragraph no.21:

It is clear from the evidence of the P.Ws.1 and 20

that the deceased and P.W.1 had come to the police station in

the evening of 04.05.1985.

Paragraph no.22:

The testimony of P.W.1 and P.W.20 being

creditworthy, it is found that the deceased and P.W.1 came to

the police station in the evening. In view of this fact, the

occurrence alleged in Lalbag/Purighat P.S. Case No.272/1985

stands automatically ruled out.

Paragraph no.26:

The disputed signature reading 'Kasinath' in the so-

called F.I.R. relating to Purighat/Lalbag P.S. Case No.272/1985

was not in the hand of the deceased.

Paragraph no.27:

The opinion of P.W.31 that Ext.A is the signature of

the deceased which is contrary to the evidence of P.W.34 and

expert's opinion, cannot be accepted as it seems that P.W.31

committed the mistake because he was not so well acquainted

with the handwriting of the deceased.
33

Paragraph no.28:

The seizure list prepared by appellant P.K.

Choudhury in Purighat/Lalbag P.S. Case No.272/1985 relating to

seizure of a half shirt and one napkin on being produced by the

deceased, appears to be a false seizure list.

Paragraph no.29:

The garments Dhoti, Ganji and Deunria and the steel

ring of the deceased (M.O.I, II, III and VI) were seized under

seizure list Ext.11 by P.W.39 on being produced by P.W.8 after

post mortem examination. It is not understood how a shirt and

napkin were available as the clothes of the deceased, so that the

appellant P.K. Choudhury could seize the same under seizure list

Ext.23/3. The date put by the appellant P.K. Choudhury under

his signature as 05.05.1985 in the seizure list (Ext.23/3) dated

04.05.1985 shows that this mistake occurred because the

seizure list was written on a day subsequent to 04.05.1985. The

explanation given by the appellant in that respect in question

no.46 is not acceptable. Nothing was at all seized under Ext.23/3

and the alleged seizure was only a paper transaction.
34

Paragraph no.31:

The effect of evidence of P.Ws.35 and 36 is that

though seizure of vomited substance has been reflected in

Ext.42, it was not in fact seized. The averments in Ext.42 appear

to be false and it is a fabricated document.

Paragraph no.32:

The chemical examination report (Ext.60) mentions

that the sample did not contain vomited substance. Obviously it

was not seized under Ext.42 and the document appears to be

fabricated.

Paragraph no.33:

P.W.1 was falsely shown as a witness in the case

diary of Purighat/Lalbag P.S. Case No.272/1985.

Paragraph no.34:

The alleged occurrence in Purighat/Lalbag P.S. Case

No.272/1985 was not possible one as such an occurrence at such

a place cannot cause the injuries found in the dead body.
35

Paragraph no.35:

The contention of the defence advocate that the

injuries found in the dead body could have been caused by an

occurrence and at the spot as alleged in Purighat/Lalbag P.S.

Case No.272/1985 is not acceptable.

Paragraph no.36:

The inquest report Ext.16, prepared by the appellant

P.K. Choudhury is a fabricated document in which the injuries on

the deceased have been minimized to a great extent deliberately

with malafide intention.

Paragraph no.37:

Ext.16 cannot suggest any conclusion other than a

malafide intention to suppress the injuries.

Paragraph no.38:

The entire case i.e. Purighat/Lalbag P.S. Case

No.272/1985 is false, the alleged investigation is only a paper

transaction and all the connected documents i.e. so-called F.I.R.,

seizure lists, C.D. etc. are fabricated documents.
36

Paragraph no.39:

There is ample evidence to indicate who scribed the

F.I.R. (Ext.1), where and how. Therefore, the contention raised

from the side of the defence that the F.I.R. was not duly proved,

is discarded.

Paragraph nos.42, 43:

The contention was raised by the defence that Ext.1

is not the real F.I.R., though it was treated as such. There is no

reason to have suspicion against the F.I.R. lodged by P.W.1,

specifically because evidence of P.W.1 in connection with it

appears to be cogent.

Paragraph no.54:

Both the Sub-Inspectors P.K. Choudhury (appellant)

and P.K. Jaysingh appeared in the Court on 30.04.1985 in

pursuance of the summons issued to them in Complaint Case

No.28/85 filed by P.W.34 which was four days before the alleged

occurrence. Obviously, they must have been aggrieved not only

against P.W.34 but also against his family members and against

P.W.1. This indicates the motive on the part of accused P.K.

Choudhury and accused Pravat Mohanty being his immediate
37

superior, he must have also taken up his cause, thereby

becoming motivated to retaliate.

Paragraph no.55:

Except P.W.1, there is no other witness to speak

directly about the occurrence. The evidence of P.Ws.7, 19, 21

and 22 were adduced to provide limited corroboration to the

testimony of P.W.1 but it is difficult to believe their version.

Paragraph no.56:

The evidence of the female witnesses P.Ws.7, 21 and

22 do not inspire confidence.

Paragraph no.57:

The unlawful detention of the deceased and P.W.1

inside Purighat police station in the night of occurrence stands

proved.

Paragraph no.59:

P.W.1 is not an educated person and he is only a

sweeper. Therefore, the evidence of P.W.1 cannot be discarded

on the ground that there were some differences between his

testimony and his averments in the F.I.R.
38

Paragraph no.60:

The report of the medical examination of P.W.1

proved by the doctor (P.W.10) supports his testimony about

assault on him. This is another reason for which the evidence of

P.W.1 should not be disbelieved.

Paragraph no.61:

The testimony of P.W.1 should not be viewed with

suspicion on the ground that there are some discrepancies with

reference to the narration made in the first information report.

Paragraph no.62:

No importance should be attached to the T.I. parade

conducted by the Judicial Magistrate (P.W.24) in respect of

accused P.K. Choudhury in which P.W.1 identified him, as P.W.1

knew the accused earlier, though not by name and deposed

against him in Complaint Case No.28/85.

Paragraph no.63:

P.W.1 is the solitary witness to speak about the

occurrence inside the police station and there is no other

independent witness to corroborate his testimony. Testimony of

P.W.1 is an added strength in addition to the available
39

circumstances and factors which are by themselves sufficient to

prove the alleged assault. So, there is no necessity at all to look

for independent corroboration as the assault took place inside

the police station.

Paragraph no.64:

The deceased was mercilessly beaten by accused

P.K. Choudhury with the active connivance, consent and

collaboration of accused Pravat Mohanty.

Paragraph no.66:

No adverse inference can be drawn against the

prosecution for non-examination of P.K. Mishra, A.S.I. who had

written the station diary entries marked as Exts.D, E, E/1, F, F/1

and 55 as his conduct appears to be dubious in making false

Station Diary entries. Accused persons should have summoned

him as a defence witness as his version would substantiate the

defence plea.

Paragraph no.68:

The evidence of P.Ws.9, 11, 12 and 13 that the

appellant Pratap Kumar Choudhury was not present in the police

station during the crucial time i.e. till 9.45 p.m. cannot be relied
40

upon in support of the defence plea. P.Ws.9, 11 and 13 appear

to be liars and the evidence of P.W.12 is contrary to his

statement under section 164 Cr.P.C.

Paragraph no.69:

The omission of the investigating officer to make

P.W.34 Sukanta Naik as an accused in the charge sheet in

Purighat/Lalbag P.S. Case No.269/1985 cannot be said to be a

malafide act.

Paragraph no.71:

It is found that the deceased had not at all taken rice

and vegetable curry. The presence of undigested food materials

inside the stomach of the deceased cannot be believed as the

deceased has taken food at about sunset time before going to

the police station and he died in the night at about 3.00 a.m.

and therefore, the intervening time gap was more than eight

hours which was sufficient for complete digestion of food like rice

and vegetables.

Paragraph no.73:

The hypothesis of suffocation/choking being not

acceptable, the reasonable conclusion would be that the cause of
41

death was due to failure of heart precipitated by long detention

associated with the injuries found in the body.

Paragraph no.74:

The nexus of the death of the deceased and the act

of the appellants in subjecting him to long detention throughout

the night and mercilessly beating him and that the facts

disclosed that the appellants knew that their acts would be likely

to cause death of the deceased. Accordingly, it was held that the

appellants have committed an offence punishable under section

304 Part II read with section 34 of the Indian Penal Code.

Paragraph no.78:

The accused persons fabricated case diary in

Purighat/Lalbag Case No.269/1985 and also forged the so-called

F.I.R., seizure lists and connected case diary including

examination of witnesses, inquest etc. in Purighat/Lalbag Case

No.272/1985. The accused persons used such forged documents

as genuine documents, though to their knowledge those were

forged. They did so falsely to explain the wrongful detention of

the deceased and P.W.1 and to explain the injuries on their

bodies in furtherance of their common intention. Hence, it is
42

found that they are guilty of the offence punishable under

section 471/34 Indian Penal Code.

The learned trial Court after discussing the evidence,

disbelieved the charge under sections 294/34 of the Indian Penal

Code in paragraph 9, charge under section 201/34 of the Indian

Penal Code in paragraph 75, charge under section 167/34 of the

Indian Penal Code in paragraph 76 and charge under section

477-A/34 of the Indian Penal Code in paragraph 77 of the

judgment.

8. Mr. Devashis Panda, learned counsel appearing for

the appellant P.K. Choudhury contended that the evidence of

star witness P.W.1 is full of contradictions. He has made

deliberate improvement in his evidence in comparison to what he

has narrated in the F.I.R. and stated before the I.O. in his

statement recorded under section 161 Cr.P.C. and therefore, no

implicit reliance can be placed on it. He argued that taking into

account the distance factor from the Basti of P.W.1 and the

deceased to Purighat police station, had they left their Basti at a

time as stated by P.W.1, it would not have taken so much of

time for them to reach at the police station. None of the police

officials like P.W.8 and P.W.9 present in the police station and

other independent persons like P.W.11 and P.W.12 who came to
43

the police station during the relevant time corroborated the

evidence of P.W.1 regarding his presence with the deceased

since evening hours as well as the assault on the deceased by

any of the appellants. According to Mr. Panda, the alleged

weapon of offences i.e. M.O.IV and M.O.VII were not shown to

P.W.1 during trial for identification and M.O.VII was not even

produced before the Scientific Officer when he and his team

visited Purighat police station on 05.05.1985 midnight nor sent

to S.F.S.L., Rasulgarh for examination. The F.I.R. lodged by the

deceased in Purighat/Lalbag P.S. Case No.272/1985, the station

diary entries dated 04.05.1985 of Purighat police station marked

as Exts.C, D, E, E/1, F, F/1 substantiate the defence plea

regarding arrival of the deceased and P.W.1 in the police station

around 10 p.m. and not at about 7 p.m. on 04.05.1985 as

alleged by prosecution. He argued that materials on record

indicate that A.S.I. of police P.K. Mishra was the diary in-charge,

Sk. Firoz was the driver of the police jeep in which the deceased

was taken to the hospital from the police station and constable

Anand Naik was also on duty at the relevant point of time but

they have not been examined during trial. According to Mr.

Panda, it was the duty on the part of the investigating officer

(P.W.39) to first verify as to who were on duty during the period

P.W.1 and the deceased remained in Purighat police station and
44

to examine all of them to ascertain the truthfulness of the

prosecution version but the same has not been done. Though the

investigating officer stated that he sent P.W.1 for medical

examination on police requisition on 05.05.1985 and received

the injury report on the same day but P.W.1 is silent in that

respect. In the first information report, it is mentioned that a

police officer having mustache assaulted the informant but

strangely the informant has not named the appellant P.K.

Choudhury in it even though he had deposed a month before

against the said appellant in the complaint case instituted at the

instance of P.W.34, the son of the deceased. The evidence on

record indicates that there were other police officials working in

Purighat police station at the relevant point of time who were

having mustache and this creates doubt about the participation

of the appellant P.K. Choudhury. He argued that no importance

can be attached to the identification of appellant P.K. Choudhury

in the T.I. Parade as everything has been stage managed by the

investigating officer. He further contended that though the

learned trial Court has commented that the appellant Pratap

Kumar Choudhury had minimized the injuries sustained by the

deceased at the time of preparation of inquest report (Ext.16)

and gave incorrect data in it in comparison to the inquest report

(Ext.15) prepared by the Executive Magistrate but no importance
45

can be attached to Ext.15 as the concerned Executive Magistrate

who prepared such report was not examined nor any of the

witnesses who signed the inquest report were examined to prove

their signatures on it. He emphatically contended that since

Indian Evidence Act enumerates as to how a document is to be

proved and by whom and Ext.15 has not been proved in that

manner, the same cannot be considered at all to discard Ext.16.

The statement of the I.O. that he could not find the Executive

Magistrate who prepared the inquest report is not acceptable. He

further argued that P.W.39 seems to have received an oral order

to investigate Purighat/Lalbag P.S. Case No.273/1985 prior to its

registration and the presence of Umesh Mohapatra, City D.S.P.

at the time of lodging of F.I.R. at Lalbag police station are some

of the doubtful features of the case. While concluding his

argument, it is submitted that two separate standards have been

adopted by the learned trial Court while assessing the

prosecution case vis-à-vis the defence plea and therefore, taking

an overall holistic and pragmatic view, benefit of doubt should be

extended in favour of the appellant P.K. Choudhury.

Mr. Yasobant Das, learned Senior Advocate

appearing for the appellant Pravat Mohanty contended that

P.W.1 is a agnatic relation of the deceased and he is a highly
46

interested witness and he also deposed as a witness in the

complaint case instituted by the son of the deceased against

appellant P.K. Choudhury. P.W.1 is a Court bird and there is

motive on his part to falsely implicate the appellant and

therefore, the false implication of the appellant cannot be ruled

out. Mr. Das further argued that the prosecution has to stand on

its own legs and weakness of the defence or inability of the

defence to prove the defence plea is not a factor to accept the

prosecution case automatically. To dislodge the defence plea

regarding assault on the deceased on the river embankment at

about 9 p.m. on 04.05.1985, a story has been introduced by the

prosecution that P.W.8 accompanied the deceased and P.W.1 to

the police station which indicates that the prosecution has not

come forward with clean hand to substantiate its case. The

version of different witnesses including P.W.1 relating to the time

of his leaving of Basti with the deceased on the date of

occurrence and their arrival time at Purighat police station are

discrepant in nature. He highlighted the evidence of the doctor

(P.W.37) who conducted post mortem examination and

contended that since the doctor stated that all the external

injuries are superficial in nature and such type of injuries are by

themselves not fatal and cannot precipitate death, therefore

even if for the sake of argument it is conceded that there was
47

assault on the deceased in Purighat police station but the same

would not make out the case of culpable homicide as defined

under section 299 of the Indian Penal Code as the doctor

(P.W.37) stated that the deceased was having a diseased heart

which might accelerate heart attack and sudden death. He

further argued that there is nothing on record to make out a

case for the offence under section 471 of the Indian Penal Code.

He further argued that it is doubtful if the F.I.R. lodged by P.W.1

was registered at 11 a.m. on 05.05.1985 rather it has been ante

timed as in the inquest report and post mortem report prepared

thereafter, Purighat/Lalbag P.S. case no. 273 of 1985 has not

been reflected but those documents reflect Purighat/Lalbag P.S.

case No. 272/1985 which was registered on the basis of the

F.I.R. lodged by the deceased. According to Mr. Das, the

investigating officer (P.W.39) has deliberately not investigated

Purighat/Lalbag P.S. Case No. 272/1985 properly and submitted

final report indicating the case to be false, otherwise truth could

have been elicited. The statement of the star witness (P.W.1)

stated to have been recorded on 05.05.1985 was sent to Court

on 25.07.1985 which has not been explained by the prosecution.

He argued that how the Scientific Officer (P.W.2) noticed blood

stain on the floor of the police station during the midnight on

05.05.1985 when P.W.3, the sweeper washed and cleaned the
48

floor in the morning hours of that day. He concluded his

argument by submitting that since material witnesses have been

withheld by the prosecution and the prosecution case has been

disbelieved by the learned trial Court in part, it would be very

risky to convict the appellant. The learned counsel for the

appellant relied upon the decisions in the cases of Jagdish

-Vrs.- State of Haryana reported in (2019)7 Supreme

Court Cases 711, Kathi Odhabhai Bhimabhai -Vrs.- State of

Gujarat reported in A.I.R. 1993 S.C. 1193, Lallu Manjhi

-Vrs.- State of Jharkhand reported in (2003)2 Supreme

Court Cases 401, Motilal -Vrs.- State of Rajasthan

reported in (2009)7 Supreme Court Cases 454,

Govindaraju @ Govinda -Vrs.- State reported in (2012)4

Supreme Court Cases 722, Harbeer Singh -Vrs.-

Sheeshapal reported in ABC 2016(II) 218 SC, Guman

Singh -Vrs.- State of Rajasthan reported in 2019 (II)

C.L.T. Crl. (Supp.) 402 (SC) and Rai Sandeep @ Deepu

-Vrs.- State of NCT of Delhi reported in A.I.R. 2012 S.C.

3157.

Mr. Lalatendu Samantaray, learned Addl. Govt.

Advocate on the other hand supported the impugned judgment

and submitted that the learned trial Court has vividly discussed
49

the evidence on record and acquitted the appellants of some

charges and even if in view of contradictions in the evidence of

P.W.1 vis-à-vis his narration of events in F.I.R. and statement

recorded under section 161 of Cr.P.C., he is taken as a partly

reliable and partly unreliable witness, still then there are ample

corroboration to the evidence of P.W.1 that when the deceased

came to the police station with P.W.1 in the evening hours on

the date of occurrence, he was having no injuries but during

midnight, he was taken to the hospital in a moribund condition

from the police station and therefore, it is apparent that the

injuries sustained by the deceased were caused during his

presence at the police station. He argued that in view of the

nature of contradictions in the evidence of P.W.1, his entire

evidence cannot be wiped out rather the Court should adopt the

well settled theory of separating grain from the chaff. He further

submitted that even though the deceased and P.W.1 were not

named as accused in the first information report lodged by

P.W.13 Sura Nayak which gave rise to Purighat/Lalbag P.S. Case

No.269/1985 but all the same they were called to the police

station with an oblique motive and creating a false statement

against them in the said case, they were shown to have been

arrested and detained in the police station. He further argued

that the deceased was assaulted mercilessly by the two
50

appellants as the appellant P.K. Choudhury and another police

officer were summoned by the Court as accused on the

compliant petition filed by the son of the deceased and then

realizing that the health condition of the deceased had

deteriorated on account of assault and there would be hue and

cry for custodial violence, documents were created immediately

to show as if the deceased sustained the injuries on account of

assault by some unknown persons on the river embankment and

came to report for the same. If the deceased was having no

injuries on his person when he came to police station as stated

by some witnesses, then the question of deceased sustaining any

injury on account of assault on the river embankment does not

arise rather it falsifies the defence plea. If the defence plea that

the deceased came to police station to report about his assault

incident is not accepted, then the defence plea that P.W.8 was

not sent to the Basti to call the deceased and P.W.1 gets falsified

as there would be no occasion for them to come to the police

station. Finally, he argued that the appeals should be dismissed.

9. It would be appropriate first to discuss briefly the

background of the case which appears from the evidence on

record.
51

P.W.20 Biswanath Nayak, the younger brother of the

deceased lodged a first information report at Purighat police

station against Sukanta Naik (P.W.34), the son of the deceased

in connection with some landed property dispute, for which

Purighat/Lalbag P.S. Case No.49 of 1985 was registered under

sections 294 and 506 of the Indian Penal Code. In connection

with the said case, P.W.34 was arrested by police of Purighat

police station and allegedly assaulted for which P.W.34

approached the Legal Aid Board and also instituted a complaint

case vide I.C.C. Case No.28 of 1985 in the Court of learned

S.D.J.M., Cuttack against the appellant P.K. Choudhury and one

P.K. Jaisingh who were the Sub-Inspectors of the said police

station. In the complaint case, after inquiry under section 202 of

Cr.P.C. was conducted, summons were issued against the

appellant P.K. Choudhury as well as P.K. Jaisingh and both of

them appeared in the Court on 30.04.1985. The above aspect

has not been disputed by appellant P.K. Choudhury in his

accused statement though it is his case that the complaint case

was filed on false accusation.

On 03.05.1985 P.W.13 Sura Naik lodged an F.I.R.

(Ext.20) at Purighat police station, on the basis of which

Purighat/Lalbag P.S. Case No.269/1985 was registered against
52

P.W.34 and others but the deceased and P.W.1 were not named

as accused in the said first information report. This aspect is also

not disputed by both the appellants in their accused statements.

10. Now, coming to the prosecution case on the date of

occurrence, it is stated that P.W.8 Brahmananda Behera who

was the Havildar of Purighat police station came to the Basti of

the deceased and P.W.1 for three times to call both of them to

the police station and accordingly, both the deceased and P.W.1

went to the police station in the evening. Appellant Pravat

Chandra Mohanty denied about this aspect whereas appellant

P.K. Choudhury stated in his accused statement that since he

was not present in the police station from 10 a.m. to 9.45 p.m.,

he could not say anything about that. In view of the stand taken

by the appellants on this particular aspect, it would be important

first to discuss the evidence adduced by the prosecution.

A. Whether P.W.1 and the deceased were called to

Purighat police station through P.W.8 on the date of

occurrence:

On this point, the relevant prosecution witnesses are

P.W.1, P.W.7, P.W.8, P.W.13, P.W.18, P.W.20 and P.W.21.
53

In the first information report (Ext.1), it is mentioned

that on the date of occurrence, after the informant (P.W.1)

returned home from the market at about 4.30 p.m., he was

informed by his wife (P.W.18) that he had been called to

Purighat police station by Thanababu and after some time, the

deceased also came and told P.W.1 to go to the police station

and accordingly, both of them decided to go to the police station.

There is nothing in the first information report as to who gave

information to the wife of P.W.1 in that respect.

In his evidence, P.W.1 stated that at about noon

when he returned to his house, he was told by his wife that he

was wanted by the police of Purighat police station and one

Behera babu had come to call him and then he met the deceased

who also told that they were wanted by the police of Purighat

police station. Thus from the evidence of P.W.1, it appears that

he was not directly informed by any police official of Purighat

police station to come to Purighat police station but he was told

by his wife in that respect. It is also not clear from his evidence

as to who was that Behera babu to whom his wife was referring

to.

P.W.18 Kanchan Dei is the wife of the informant who

stated that on the date of occurrence at about noon, Havildar
54

Behera Babu had come to their Basti to call her husband but her

husband was absent for which Havildar Behera Babu returned.

Again Behera Babu came to the Basti to call her husband and

took her husband and the deceased to the police station. Her

previous statement has been confronted by the Public Prosecutor

after she was declared hostile and she admitted to have stated

before the I.O. that when Havildar came to her house at about

twelve noon on 04.05.1985, he told her that the appellant Pravat

Babu wanted her husband to go there and that she told that her

husband was absent. Except giving suggestion that Behera Babu

did not call her husband and the deceased Kasinath, the defence

has brought nothing in the cross-examination in that respect.

P.W.7 Malati Bewa, the widow of the deceased stated

that Havildar Behera babu of Purighat police station came to call

the deceased at about 11.30 a.m. on the date of occurrence but

the deceased was absent and when she asked, the Havildar told

her that the deceased was wanted by the Inspector in-charge

and if the deceased would not go to the police station, they

would come and take him under handcuff. Again Havildar Behera

babu came at about 4.30 p.m. and at that time also the

deceased was absent and had been to his duty. When she

informed her husband (deceased), her husband and P.W.1 talked
55

together and decided to go to the Purighat police station. She

further stated that again when the Havildar babu came, the

deceased and P.W.1 along with the Havildar babu went to the

police station and by then it was sun set time. Thus from the

evidence of P.W.7, it appears that Havildar Behera babu had

come for three times on the date of occurrence to call the

deceased and on the first two occasions, he could not meet the

deceased but on the third occasion when he came, the deceased

and P.W.1 accompanied him to the police station. It is elicited in

the cross-examination that the said Havildar Behera babu used

to come to the Basti of the deceased to pacify different dispute

and to take miscreants to the police station. Therefore, the

identity of Havildar Behera babu by P.W.7 cannot be doubted. In

the cross-examination, she stated that on the date of

occurrence, the deceased returned home at about 5 p.m. from

duty. Except giving suggestion to P.W.7 that Havildar Behera

babu had not come to call the deceased and that the deceased

had not accompanied him to the police station, nothing further

has been brought out in the cross-examination to discard this

part of evidence. P.W.7 has denied the defence suggestion. Law

is well settled that the suggestion made by the defence does not

constitute any evidence when the same is denied. Suggestions

put are not evidence at all against the accused and on the basis
56

of such suggestion, no inference can be drawn against an

accused that he admitted the fact suggested in the cross-

examination. A suggestion thrown to a prosecution witness

under cross-examination by the defence counsel cannot be used

as an implied admission so as to dispense with the proof of

prosecution case.

P.W.20 Biswanath Naik has stated that on the date of

occurrence which was the lunar eclipse day, during day time at

about noon, he saw Havildar Behera Babu had come to their

Basti to search for the deceased and P.W.1. He further stated

that when the Havildar approached P.W.13 to show him their

houses, P.W.13 did not like to show their houses and at that

time the deceased as well as P.W.1 was not present in their

respective houses. He further stated that in the evening hours at

about 6.30 to 7.00 p.m., he saw the deceased and P.W.1 going

towards police station. Except putting suggestion that Havildar

Behera Babu had not come to the Basti and searching for the

houses of the deceased and P.W.1, nothing has been elicited in

the cross-examination to disbelieve the same on this particular

aspect.

Thus, a combined reading of evidence of P.W.1,

P.W.7, P.W.18 and P.W.20, it appears that Havildar Behera Babu
57

had come to their Basti and in the absence of P.W.1 and the

deceased, informed their respective wives to tell their husbands

to go to the police station. However, the evidence of P.W.7 and

P.W.18 that Havildar Behera Babu took P.W.1 and the deceased

with him to the police station is not corroborated by P.W.1 and

even P.W.20 has not seen Havildar Behera Babu accompanying

P.W.1 and the deceased while they were going towards police

station.

P.W.13 Sura Naik who is the informant in

Lalbag/Purighat P.S. Case No.269 of 1985 stated that he had not

seen any police officer or Havildar or constable in his village on

04.05.1985. He was declared hostile and his previous statement

before police was confronted to him by the Public Prosecutor and

the same was proved through the I.O. (P.W.39) that he stated to

have seen Havildar Behera Babu along with the brother of the

deceased on 04.05.1985 at about noon and that Havildar asking

him to show the houses of the deceased and P.W.1 but he told

the Havildar that he was not pulling on well with them and asked

to tell to the brother of the deceased to show the houses.

Therefore, even though P.W.13 has made a statement before

police regarding approach of Havildar Behera Babu to him to
58

meet the deceased as well as P.W.1 on the date of occurrence

but during trial, he resiled from his previous statement.

P.W.21 Harasamani Dei stated to have seen the

deceased in the company of P.W.1 and a Havildar on the river

embankment road on the date of occurrence going towards

Purighat police station. In the cross-examination, she stated that

she had come to Tala Telenga Bazar to take rice from a shop on

credit but she could not say the name of the shop keeper. She

further admitted that there were many grocery shops in

Rajabagicha area where the rice was available. She stated that

there is a short cut road from her house to that shop where she

had gone to bring rice and another road through river

embankment. The purpose for which the witness was passing on

the river embankment road on that day appears to be doubtful

and therefore, it is not believable that she was on the river

embankment road in the evening hours to see the deceased and

P.W.1 in the company of a Havildar. Thus the evidence of P.W.21

has to be discarded.

P.W.8 Brahmananda Behera on the other hand

stated that he had not gone to Harijan Basti on 04.05.1985 and

nobody sent him to call any person of that Basti and on that day,

he had not seen P.W.1 and the deceased. His previous statement
59

made before the investigating officer was confronted to him by

the Public Prosecutor after he was declared hostile that he stated

in his 161 Cr.P.C. statement that on 04.05.1985 at about 11.00

a.m., he had been to call P.W.1 and the deceased being ordered

by appellant Pravat Mohanty. The said previous statement of

P.W.8 has been proved through the investigating officer.

Mr. Devashis Panda, learned counsel contended that

since no command certificate has been proved by the

prosecution to show that P.W.8 was sent to the Basti of the

deceased on the date of occurrence to call the deceased and

P.W.1, the oral evidence adduced by the prosecution in that

respect cannot be accepted. As per Rule 90 of Orissa Police

Rules, whenever a Subordinate police officer is deputed on any

duty, a command certificate in P.M. Form No.9 is given to him,

who has to carry it with him and produce it on his return before

the officer in-charge. Obviously by proving the command

certificate, the prosecution case regarding visit of P.W.8 to the

Basti of the deceased and P.W.1 on the date of occurrence to call

them would have been strengthened but its absence cannot a

ground to discard the oral evidence on that score provided the

same is clinching and trustworthy. It cannot be lost sight of the

fact that the defence plea of the appellants was that neither the
60

deceased nor P.W.1 was called to the police station through any

Havildar but they came on their own to lodge a report in

connection with the assault on the deceased on the river

embankment. The possibility of sending P.W.8 to the Basti of the

deceased and P.W.1 to call them to the police station without

issuing any command certificate cannot be ruled out inasmuch as

it is hardly expected from persons of social and educational

background like the deceased and P.W.1 to demand perusal of

command certificate before going to the police station.

Analysing the evidence adduced by the prosecution,

even though P.W.8 has not supported the prosecution case and

no command certificate has been proved by the prosecution, but

in view of the evidence adduced by P.Ws.1, 7, 18 and 20 as

already discussed, I am of the humble view that on the date of

occurrence, P.W.8 had been to the Basti of the deceased and

P.W.1 to call them to the police station and in their absence, he

also informed about the purpose of his visit to their respective

wives. However, the evidence adduced by P.W.7 and P.W.18 that

Havildar Behera Babu took the deceased and P.W.1 with him to

Purighat police station is not acceptable.

B. Leaving of Basti and arrival time of the deceased and

P.W.1 at Purighat police station:
61

It is the prosecution case that the deceased and

P.W.1 left their Basti at about 4.30 p.m. and reached at Purighat

police station in the evening hours on 04.05.1985. However, it is

the defence plea that both of them came to police station at

about 9.50 p.m. to lodge a report in connection with the assault

on the deceased that took place on the river embankment at

about 9.00 p.m.

On this point, the relevant prosecution witnesses are

P.W.1, P.W.7, P.W.20 and P.W.21. Since I have already

discarded the evidence of P.W.21, the evidence of other three

witnesses is to be discussed.

In the first information report, P.W.1 has mentioned

that after he returned home at about 4.30 p.m. and heard from

his wife that he had been called to Purighat police station,

decision was taken by him and the deceased to go to the police

station. It is further mentioned that he and the deceased went to

Purighat police station at about 7.00 p.m. In his evidence, P.W.1

stated that he and the deceased decided to go to Purighat police

station at about 4.00 or 4.30 p.m. and again the deceased came

and called him to go to Purighat police station at 4.30 p.m. and

after taking some tiffin in the house of the deceased, they

proceeded to Purighat police station and by the time they
62

reached at the police station, it was already evening. In the

cross-examination, he stated that they left the house of the

deceased at 4.30 p.m. to go to police station and by the time

they reached, the light was on. In the first information report,

there is no mention about taking of tiffin in the house of the

deceased by both of them before proceeding to the police

station. It has been confronted to this witness in the cross-

examination that he had not stated in his F.I.R. or in his 161

Cr.P.C. statement that at about 4.30 p.m., again the deceased

called him to go to the police station and taking tiffin in his

house, they went to the police station. The I.O. (P.W.39) has

stated that P.W.1 did not state before him that he and the

deceased went to police station at 4.30 p.m. rather he said that

they went at about 7.30 p.m. It has been suggested to P.W.1 by

the defence that they had never come to the police station

during the evening hours on 04.05.1985. The discrepancies

which are appearing in the evidence of P.W.1 vis-à-vis the F.I.R.

and his previous statement recorded under section 161 Cr.P.C.

relating to leaving the Basti and arrival at the police station has

its own significance in the factual scenario. After arrival in the

house at about 4.30 p.m., P.W.1 seems to have been informed

by his wife that he had been called to Purighat police station and

since the deceased was also called to the police station, both of
63

them decided to go to the police station which obviously must

have been after 4.30 p.m. They took the tiffin in the house of the

deceased which must have taken sometime and then they

proceeded to the police station. Therefore, the evidence of P.W.1

that they left the house of the deceased at 4.30 p.m. to go to

the police station cannot be accepted. The distance between the

Basti of P.W.1 and Purighat police station is only one kilometer

and it is rightly contended by the learned counsel for the

appellants that had P.W.1 and the deceased started at 4.30

p.m., it would not have taken so much of time to reach at the

police station at about 7.30 p.m. Though in the F.I.R., it is

mentioned that they went to Purighat police station at about

7.00 p.m. and in his statement before police, he stated that they

went to police station at about 7.30 p.m. but during trial he

stated that they left the house of the deceased to go to police

station at 4.30 p.m. Even though P.W.1 deposed in the Court

almost a year after the occurrence, but the discrepancies relating

to the leaving time of Basti as stated by him at different stage is

very difficult to be digested. Why the leaving time of Basti was

stated in a different manner? Whether it is an attempt by the

prosecution to nullify the defence plea that the assault on the

deceased took place on the river embankment at about 9.00

p.m. for which the deceased came to police station at about 9.50
64

p.m.? This aspect is to be discussed at appropriate stage while

considering the defence plea and the F.I.R. stated to have been

lodged by the deceased.

P.W.7 Malati Bewa, the widow of the deceased stated

that her husband returned home after 4.30 p.m. and then he

and P.W.1 talked together and decided to go to the police

station. In the cross-examination, she stated that the deceased

returned home at about 5.00 p.m. She further stated that P.W.1

went to attend the call of nature to the river and after he

returned, she gave them tea, puri and halwa as it was a lunar

eclipse day and then the deceased and P.W.1 went to the police

station and by that time, it was sunset time. Thus, from the

evidence of P.W.7, it appears that after taking tiffin, both P.W.1

and the deceased left their Basti at sunset time.

P.W.20 Biswanath Naik has stated that on the day of

lunar eclipse in the evening at about 6.30 or 7.00 p.m., he had

seen the deceased and P.W.1 going towards the police station.

Nothing has been brought out in the cross-examination to raise

any doubt on this aspect.

It was summer season and the sunset time in

Cuttack on 04.05.1985 as per google was 6.02 p.m. In view of

the evidence of P.W.1, P.W.7 and P.W.20, it appears that both
65

the deceased and P.W.1 left their Basti after sunset and the time

mentioned in the F.I.R. that they went to Purighat police station

at about 7.00 p.m. appears to be correct.

Now, coming to the arrival time at Purighat police

station, apart from the evidence of P.W.1, the evidence of P.W.9,

P.W.11 and P.W.12 are relevant. P.W.1 stated that there was a

cabin in front of the police station and the deceased asked him to

sit there so that he could go to the police station to study the

situation and accordingly, he sat there and the deceased went up

to the gate of the police station and returned and told him that

the appellant Pravat Mohanty had not come and they have to

wait till his arrival. P.W.1 stated in the chief examination that by

the time they reached at Purighat police station, it was already

evening. In the cross-examination, he stated that by the time he

reached at the police station, there was already light. He further

stated in the cross-examination that at about 7.30 p.m., they

entered the police station. Therefore, according to P.W.1, their

arrival time in the police station was at about 7.30 p.m.

P.W.9 was the constable attached to Purighat police

station and he stated that on 04.05.1989 from 8.00 p.m. to

10.00 p.m. when he was on duty, he had seen the appellant

Pratap Kumar Choudhury in the police station but not the
66

appellant Pravat Mohanty. He further stated that just before

10.00 p.m., he had seen the deceased and P.W.1 coming to the

police station and giving an application to the appellant

Choudhury. This witness was declared hostile by the prosecution

and cross examined as he did not support the prosecution case

relating to the assault on the deceased inside the police station.

P.W.11 is an independent witness and he stated that

at about 9.30 p.m. on 04.05.1985 he came to Purighat police

station in a case matter and after fifteen minutes of waiting,

appellant Choudhury babu came and he also found two HADIS

standing there. This witness has been declared hostile by the

prosecution as he did not support the prosecution case relating

to the assault on the deceased inside the police station.

P.W.12 is an independent witness who stated that on

04.05.1985 at about 10.00 p.m., he had come to Purighat police

station and sat on the verandah. At that time, appellant

Choudhury babu came and started going through a newspaper

sitting in his room. After some time, two persons came and

approached Choudhury babu. This witness has also been

declared hostile by the prosecution as he did not support the

prosecution case relating to the assault on the deceased inside

the police station.
67

The statements of P.W.11 and P.W.12 were recorded

by Magistrate under section 164 of Cr.P.C. in which also they had

stated about the assault on the deceased inside Purighat police

station by the appellants. Thus P.W.11 and P.W.12 have not only

resiled from their previous statements made before the I.O. but

also before Magistrate.

After considering the evidence of P.W.9, P.W.11 and

P.W.12 with due caution and care, I find that as a result of the

cross-examination and contradiction, the witnesses stand

thoroughly discredited and completely shaken and their

testimony relating to the arrival time of the deceased and P.W.1

at Purighat police station around 10 p.m. is very difficult to be

acted upon and as a matter of prudence, such evidence has to

be discarded in toto. (Ref: Sat Paul -Vrs.- Delhi

Administration: (1976) 1 Supreme Court Cases 727).

Since after discarding the evidence of P.W.9, P.W.11

and P.W.12, the only evidence remains regarding arrival time of

the deceased and P.W.1 at Purighat police station is that of

P.W.1 from whose evidence, the arrival time appears to be at

about 7.30 p.m., at this stage it is important to discuss the

evidence of P.W.1 who is the star witness of the prosecution and
68

the conviction of the appellants seems to be based mainly on his

evidence.

C. Whether statement of P.W.15 was concocted for

calling P.W.1 and the deceased to the police station:

The prosecution case is that even though in the F.I.R.

lodged by P.W.13 in Purighat/Lalbag P.S. Case No.269/1985,

there was nothing against either P.W.1 or the deceased but all

the same, they were called to the police station with an ulterior

motive. I have already held that P.W.8 was sent on the date of

occurrence to call P.W.1 and the deceased. It is not in dispute

that there is nothing in the F.I.R. (Ext.20) lodged by P.W.13

against P.W.1 and the deceased. Appellant P.K. Choudhury has

mentioned in the case diary of Purighat/Lalbag P.S. Case

No.269/1985 that he examined Para Dei (P.W.15) in connection

with the said case and she implicated the deceased in connection

with that incident. P.W.15 in her evidence clearly denied having

any knowledge about any such incident that took place on the

previous day of lunar eclipse of the year 1985 or giving any

statement to any police officer. The learned trial Court has held

that such a statement of P.W.15 falsifies the recording of her

statement by appellant P.K. Choudhury in Purighat/Lalbag P.S.

Case No.269/1985.
69

Law is well settled that even though the name of a

person does not find place in the first information report as an

accused but during course of investigation, materials come

against such person, nothing prevents the investigating officer to

arraign him as an accused and also interrogating him to

ascertain the truth. I am of the humble view that merely because

P.W.15 denied to have made any statement before appellant

P.K. Choudhury, her evidence cannot be accepted as gospel

truth. Whether she was examined or not and whether her

statement has been concocted was the subject matter of the trial

in Purighat/Lalbag P.S. Case No.269/1985.

Therefore, the finding of the learned trial Court that

the evidence of P.W.15 falsifies her alleged statement in the case

diary of Purighat/Lalbag P.S. Case No.269/1985 is not

acceptable. However, it is evident that both P.W.1 and the

deceased were called to Purighat police station through P.W.8 for

which they came there and they were also shown to have been

arrested in Purighat/Lalbag P.S. Case No.269/1985.

D. Whether evidence of P.W.1 can be acted upon:

I have already discussed the evidence of P.W.1 prior

to his arrival at Purighat police station in the first two headings

from which it appears that there are some discrepancies in his
70

evidence relating to leaving time of his Basti but his arrival time

at Purighat police station at about 7.30 p.m. has almost

remained unshaken. Now, let me discuss about what he stated

to have happened after he entered inside the police station with

the deceased.

Since other eye witnesses to the occurrence like

P.Ws.9, 11, 12 and 13 have not supported the prosecution case

relating to the assault on the deceased and resiled from their

previous statements, it is required to assess the evidence of

solitary eye witness (P.W.1) relating to the assault by the

appellants on him as well as the deceased carefully and also

keeping in view the medical evidence.

P.W.1 stated that when he entered inside the police

station with the deceased, the appellants abused them in filthy

language as the son of the deceased approached Legal Aid office

complaining against appellant P.K. Choudhury. Appellant P.K.

Choudhury kicked both P.W.1 and the deceased and then

assaulted the deceased with a lathi from his head to feet and

then he assaulted P.W.1 by the same lathi on his left hand, left

leg and left side cheek. Due to such assault by appellant P.K.

Choudhury, the deceased sustained severe bleeding and swelling

injuries all over his body and he himself also sustained swelling
71

injury on his left fore arm. He further stated that the appellant

Choudhury came with a constable and the constable was holding

a bottle of liquor. The deceased was forced to open his mouth

and the appellant P.K. Choudhury poured liquor into his mouth

and P.W.1 was also forced to open his mouth and some liquor

was inserted in his mouth. The appellant P.K. Choudhury told

P.W.1 that he was the Chamcha of the deceased as he was a

witness for deceased's wife and son in the Legal Aid case. The

appellant P.K. Choudhury also gave a slap on the left cheek of

P.W.1. Again the appellant P.K. Choudhury assaulted the

deceased by means of the lathi which he was holding. Out of

fear, the deceased wanted to pass stool and urine and went to

the verandah by crawling. P.W.1 heard the cry of the deceased

"MARIGALI MARIGALI, MOTE AU BADANA". Then P.W.1 was

forced to go to that place and he saw that the deceased had

passed urine and stool. The appellant Pravat Mohanty asked

P.W.1 to lift the deceased. When P.W.1 told that the deceased

was about to die and it would not be possible on his part to lift

him, the appellant Pravat Mohanty gave three to four kick blows

on the buttock of P.W.1. With much difficulty, P.W.1 took the

deceased to the side of a well inside the compound of the police

station. One constable gave water and he washed the deceased.

The appellant Pravat Mohanty gave some blows with a long lathi
72

to the deceased after his washing. Then the appellant Pravat

Mohanty brought some bread through one constable and told

P.W.1 to give it to the deceased. P.W.1 told that the deceased

was not in a position to take any food. At this, P.W.1 was given a

kick on his buttock by appellant Pravat Mohanty. P.W.1 gave the

bread to the deceased which he could not eat. The deceased was

also assaulted by the appellant Pravat Mohanty by means of lathi

on his shoulder and other joints of his body. While P.W.1 was

taking the deceased to the verandah of the police station, his

condition became serious. Appellant Pravat Mohanty asked the

driver to bring the jeep and then the deceased was taken to the

jeep and at that time, he was in a dying condition. The police

officials told P.W.1 that they were taking the deceased to the

hospital. He further stated that when he wanted to go with them

as he had also sustained some swelling injuries on account of

assault; he was not allowed to go and detained in the police

station under handcuff. At about midnight, the deceased was

taken to the hospital in the police jeep by appellant Pravat

Mohanty and a constable. In the morning, again he saw the

appellant Pravat Mohanty in the police station. Being asked by

appellant Pravat Mohanty, the handcuff of P.W.1 was opened and

he was set free. He further stated that at that time, a sweeper

came to the police station for sweeping and the appellant Pravat
73

Mohanty asked the sweeper to clean the spot which was stained

with blood, stool, urine and vomiting substances and accordingly,

the sweeper washed it. While he was sitting there, the wife of

the deceased came with another female and challenged in the

police station in front of the appellant Pravat Mohanty that they

killed her husband and she would die. He heard about the death

of the deceased and was shocked. While he was in the police

station, two police officers came one after another and took him

in a jeep to Lalbag police station and asked him about the death

of the deceased. He narrated the entire incident from beginning

to end. One of the police officers reduced the oral account into

writing at Lalbag police station which was read over and

explained to P.W.1 and the same was treated as F.I.R. (Ext.1).

P.W.1 further stated that he did not know the appellant

Choudhury prior to the incident and that he identified him in a

T.I. parade after the incident. He further stated that on the date

of occurrence, the deceased had not lodged any sort of

information at the police station nor any of them had sustained

any injury before going to the police station on the date of

occurrence.

Thus if evidence of P.W.1 given in the chief

examination as enumerated above is assessed, it appears that
74

he supported the prosecution case and implicated both the

appellants in the assault on the deceased as well as on his

assault. He further stated that due to such assault, the condition

of the deceased became serious for which he was shifted to the

hospital where he was declared dead.

Now, coming to his cross-examination, it has been

elicited that since last four years, he was coming to the Court to

look after his case and as a witness in other cases and

occasionally, he was also coming to the police station along with

the deceased to look after the cases of the Basti people at the

time of litigation. He stated that the deceased was his agnatic

relation and he called him as his brother. He admitted to have

deposed in I.C.C. Case No.28/1985 which was filed by Sukanta

Naik (P.W.34), the son of the deceased after taking Legal Aid

advice. Thus, P.W.1 is not only related to the deceased but also

deposed in the complaint case filed by the son of the deceased

against appellant Choudhury and another and he also appears to

be accustomed with the Court proceedings and therefore, though

his evidence cannot be discarded merely on the ground that he is

either partisan or interested being a relative to the deceased, but

his evidence requires scrutiny with more care and caution, so

that neither the guilty escapes nor the innocent is wrongly
75

convicted. If on such careful scrutiny, his evidence is found to be

reliable and probable, then it can be acted upon. If it is found to

be improbable or suspicious, it ought to be rejected. Law is well

settled that in order to act upon the evidence of a solitary

witness, the evidence must be clear, cogent, trustworthy and

aboveboard.

P.W.1 stated that the assault on him as well as on

the deceased was over by 10.30 p.m. to 11.00 p.m. Though he

stated that four to five constables were present inside the police

station during that period but only two of them i.e. P.W.8 and

P.W.9 were examined but they did not support the prosecution

case. He further stated that one Mishra Babu and one Panda

Babu were also present in the police station. According to the

I.O. (P.W.39), on 04.05.1985 A.S.I. of police namely Prafulla

Mishra was in charge of the Station Diary of Purighat police

station and on 05.05.1985 at 8 a.m. Chandrasekhar Panda took

charge of the Station Diary and he examined both of them, but

none of them have been examined during trial. P.W.1 further

stated that one outsider of Bangalisahi was present during the

assault and the said witness was examined as P.W.11 but he

also did not support the prosecution case. He further stated that

police officers were present at the police station when they
76

entered inside at 7.30 p.m. and they had seen their arrival but

none of them have been examined during trial to say about the

arrival of P.W.1 and the deceased at 7.30 p.m.

In the F.I.R., P.W.1 stated that he was assaulted only

by a police officer having mustache with a lathi who gave two

blows on his hand and also a kick. Nothing has been stated

therein about any assault made to him by appellant Pravat

Mohanty. In the chief examination, he not only stated that

appellant P.K. Choudhury kicked him and then gave four lathi

blows on his left hand, left leg and left side cheek and slapped on

his cheek but also stated that appellant Pravat Mohanty gave

three to four kick blows on his buttock at one stage and also at a

subsequent stage, he gave another kick on his buttock. Of

course, in the 161 Cr.P.C. statement, P.W.1 stated about kick

blows given to him by appellant Pravat Mohanty. Therefore, even

though the implication of appellant Pravat Mohanty in his assault

was not there in the first information report but it was stated in

his previous statement before the I.O. and also during trial.

P.W.1 was medically examined on police requisition by the

doctor (P.W.10), who noticed one swelling on the left wrist joint

and one abrasion on the left leg and both the injuries have been

opined to be simple in nature. Thus, in the ocular testimony of
77

P.W.1, it appears that he has exaggerated the number of blows

given to him by lathi by appellant P.K. Choudhury and also the

number of kicks given to him by appellant Pravat Mohanty in

comparison to his previous statement but these exaggeration in

the number of lathi blows or kicks cannot be a factor to

disbelieve the participation of the appellants in the assault of

P.W.1.

Similarly so far as the assault on the deceased is

concerned, the ocular testimony of P.W.1 indicates that, apart

from the kick blows given to him by the appellants at different

stages, he was assaulted by appellant P.K. Choudhury with a

lathi from his head to feet for which he sustained severe

bleeding and swelling injuries all over his body and again at

another stage, appellant P.K. Choudhury assaulted him with the

lathi which he was holding and after sometime, appellant Pravat

Mohanty gave some blows with a long lathi to him and again

appellant Pravat Mohanty assaulted him on his shoulder and

other joints by a lathi.

At this stage, if the evidence of P.W.37, the doctor

who conducted autopsy is taken into account, it appears that the

deceased had sustained eleven external injuries, out of which the

injuries nos. 1 to 9 were opined to be antemortem in nature.
78

Those injuries were either abrasions or bruises except injury

no.5 which is a lacerated wound below the left knee in front

without involving the bone. The abrasions or bruises noticed

were on lower part of right thigh, right leg below the right knee,

medial aspect of right leg above the medial malleolus, left leg

below the left knee, left buttock, left elbow joint on the posterior

aspect, left thigh and on right hand from above the elbow to the

dorsum of palm. Thus all the injuries except one on the right

hand were below the waist line of the deceased.

The contradictions relating to the narration of events

in the first information report as well as in the previous

statement have been confronted to P.W.1 in the cross

examination by the defence counsel and it has been proved

through the I.O. (P.W.39) that he has not stated before him that

two months before death of the deceased, there was a dispute

between him and his brother named Biswanath (P.W.20) for the

landed property and that P.W.20 reported the matter at the

police station. He has also not stated before him that deceased

cautioned him saying that if they would not go to the Purighat

police station, the consequences would be bad. He has not stated

that he and the deceased went to the police station at 4.30 p.m.,

rather he stated that they went at about 7.30 p.m. He has not
79

stated before the I.O. that when they entered inside the police

station, they saw the appellant Pravat Mohanty sitting on a chair

in his office and that both the appellants told the deceased "EEA

SALA KASINATH TO EKA ASHICHU TO PUA KAHIN". He has not

stated before the I.O. that the deceased replied to police that he

had not gone to the Legal Aid office and that only his son and

wife had gone there. He has not stated before the I.O. that

appellant P.K. Choudhury gave kicks specifically to his knee and

the knee of the deceased. Though he stated to the I.O. about the

assault by the appellant P.K. Choudhury, he did not specifically

state that the assault was on head to foot. He has not stated

before the I.O. that the appellant P.K. Choudhury gave lathi

blows on the left leg and left cheek of the deceased. Though he

stated about lathi blows on his left hand but he did not state that

the number of blows were four. Though he stated before the I.O.

that the deceased sustained swelling in his hands and legs, he

did not state that the swellings were throughout his body. He has

not stated before the I.O. that appellant P.K. Choudhury came

with a constable and that the latter was holding a bottle of

liquor. He has also not stated that the appellants abused him

saying that he was the CHAMACHA of the deceased as he was a

witness for the wife and son of the deceased in the Legal Aid

matter. He has not stated that the appellant P.K. Choudhury
80

gave a slap on his cheek and gave a second phase beating by

lathi to the deceased before taking him to verandah. Though he

stated that the deceased was taken to the verandah after

assault, he did not state that the deceased went to the verandah

by crawling. He did not state that he was forced to go to the

verandah and that the appellant Pravat Mohanty asked him to lift

the deceased and that because the deceased was about to die it

was not possible on his part to lift him. Though he stated to him

about assault to him, he did not specifically state that it was

through kicks on the buttock numbering three to four. He has

not stated about assault by appellant Pravat Mohanty on his

buttocks by kicks on the verandah. He has also not stated that

the deceased was again assaulted by a long lathi after he

washed the deceased at the well. Though he stated before the

I.O. that the appellant Pravat Mohanty assaulted the deceased

because he did not take bread, he did not specifically state that

the assault was on the shoulder. He did not state that he was

compelled to take the deceased to the verandah of the police

station. He has not stated that the condition of the deceased was

serious before he was taken to the verandah of the police

station. He has not stated that the deceased was in dying

condition specifically when he was taken in the jeep.
81

In view of the contradictions appearing in the

evidence of the solitary eyewitness P.W.1 as pointed out above,

the question arises whether he can be said to be a truthful

witness and implicit reliance can be placed on his evidence. In

the case of Jagdish (supra), it is held that the sound and well

established rule of law that conviction on the basis of a solitary

eyewitness is undoubtedly sustainable if there is reliable

evidence cogent and convincing in nature along with surrounding

circumstances. The evidence of a solitary witness will therefore

call for heightened scrutiny. In the case of Kathi Odhabhai

Bhimabhai (supra), it is held that even if the presence of an

injured witness cannot be doubted but if his evidence is in

conflict with medical evidence, it is not safe to convict the

accused on his sole testimony. In the case of Lallu Manjhi

(supra), it is held that since the version of the incident given by

the sole eyewitness who is also an interested witness on account

of his relationship with the deceased and being inimically

disposed against the accused persons is highly exaggerated and

not fully corroborated by the medical evidence and the version of

the incident as given in the Court is substantially in departure

from the earlier version as contained and available in the first

information report, no reliance can be placed on such testimony

for the purpose of recording the conviction of the accused
82

persons. In the case of Govindaraju @ Govinda (supra), it is

held that where there is a sole witness to the incident, his

evidence has to be accepted with caution and after testing it on

the touchstone of evidence tendered by other witnesses or

evidence otherwise recorded. The evidence of a sole witness

should be cogent, reliable and must essentially fit into the chain

of events that have been stated by the prosecution. When the

prosecution relies upon the testimony of a sole eyewitness then

such evidence has to be wholly reliable and trustworthy.

Presence of such witness at the occurrence should not be

doubtful. If the evidence of the sole witness is in conflict with the

other witnesses, it may not be safe to make such a statement as

a foundation of the conviction of the accused. In the case of

Guman Singh (supra), it is held that if the testimonies of the

witnesses would be treated to be falling in the third genus i.e.

neither wholly reliable nor wholly unreliable, the Court has to

treat the evidence with circumspection and look for corroboration

in material particulars by reliable evidence/testimony, direct or

circumstantial. In the case of Rai Sandeep (supra), it is held

that what would be more relevant in the case of a 'sterling

witness' is the consistency of the statement right from the

starting point till the end, namely, at the time when the witness

makes the initial statement and ultimately before the Court.
83

There should not be any variation in the version of such a

witness. To be more precise, the version of such a witness on the

core spectrum of the crime should remain intact. The Court can

accept the version of such a witness without any corroboration,

basing on which the guilty can be punished. The other attendant

materials, namely, oral, documentary and material objects

should match the said version in material particulars in order to

enable the Court trying the offence to rely on the core version to

sieve the other supporting materials for holding the offender

guilty of the charges alleged.

The Court is always concerned with the quality and

not with the quantity of the evidence necessary for proving or

disproving a fact. A witness in a criminal case can be categorized

under three headings i.e. (i) wholly reliable (ii) wholly unreliable

(iii) neither wholly reliable nor wholly unreliable. In case the

Court finds a witness to be under the first category i.e. wholly

reliable, the Court can act upon it even without seeking for any

corroboration. If the witness comes under the second category

i.e. wholly unreliable, the Court has to discard his evidence in

toto. If the Court finds a witness to be under the third category

i.e. neither wholly reliable nor wholly unreliable then the Court

has to be circumspect and has to look for corroboration in
84

material particulars by reliable testimony, direct or

circumstantial. It is the duty of the Court to make an attempt to

separate grain from the chaff, the truth from the falsehood

where it is possible to do so. However, where the grain cannot

be separated from the chaff because the grain and the chaff are

so inextricably mixed up that in the process of separation, the

Court would have to reconstruct an absolutely new case then it

would not be proper and justify doing so. While considering the

discrepancies in the evidence of the witness, the Court has to

see whether there are material discrepancies or minor ones.

Minor discrepancies in the evidence of the witness do not corrode

his credibility. However, material discrepancies affect the

truthfulness of a witness and it would not be safe to place

reliance on the testimony of such a witness.

The discrepancies in the evidence of P.W.1 mainly

relates to the manner of assault by the appellants to the

deceased as well as to him, the number of blows and the parts of

the body where both of them were assaulted and it seems that

even in some respect of such assault, P.W.1 has made certain

exaggeration during trial than what he mentioned in the F.I.R. as

well as stated in his statement recorded under section 161 of

Cr.P.C. The learned trial Court has also held that there are some
85

discrepancies between the evidence of P.W.1 and the averments

made in the F.I.R. and those discrepancies were brought to the

notice of P.W.1 during his cross-examination, but the Court

found that in spite of such discrepancies, on the whole, the basic

and broad feature of what happened inside the police station

have not been changed. The learned trial Court has also held

that the occurrence took place in May 1985 and P.W.1 was

examined in Court about a year thereafter and since he is not an

educated person, the contradictions are bound to occur. The

learned trial Court ultimately held that the evidence of P.W.1

should not be discarded on the ground that there were some

differences between his testimony and his averments in the

F.I.R. It seems that the learned trial Court has not taken into

account the discrepancies between the evidence of P.W.1 vis-a-

vis his statement before police recorded under section 161 of

Cr.P.C. and it has only focused on the discrepancies of the

evidence of P.W.1 with reference to the first information report.

It cannot be lost sight of the fact that after the death

of the deceased came to notice, there was commotion in the

Harijan Basti and among the sweepers of Cuttack Municipality

and P.W.16 Biswanath Pandit who was the President of Cuttack

Mehentara Sangh and President of Cuttack Municipal Employees'

Union immediately brought the matter to the notice of
86

Superintendent of Police and District Magistrate, Cuttack as the

deceased was a Jamadar of Cuttack Municipality and a member

of the Union. The Deputy Superintendent of Police, City arrived

in Purighat Police Station on 05.05.1985 in the morning at about

10.30 a.m. followed by the D.I.G. of Police (Central Range),

under whose direction, the Deputy Superintendent of Police took

the informant (P.W.1) from Purighat police station to Lalbag

police station. At the same time, it is the prosecution case that

the Director General of Police passed an order in his residential

office on 05.05.1985 directing P.W.39 to investigate into all the

three cases. As per the evidence of the I.O. (P.W.39), the first

information report was scribed in the hands of one A.S.I. of

police named Mr. Jena in Lalbag police station and at that time

City D.S.P. Umesh Mohapatra and other officers of Lalbag police

station were present. In view of the background, when the F.I.R.

was scribed in presence of City D.S.P. and has also been signed

by him and it carries a vivid description of the events

chronologically, even though the F.I.R. is not supposed to be an

encyclopaedia of the entire events and cannot contain the

minute details of the events but in the peculiar facts and

circumstances, if any material aspect is not mentioned in the

F.I.R. or stated in the 161 Cr.P.C. statement but stated for the

first time in Court in an exaggerated manner for which
87

contradictions have been proved, then certainly such

contradictions cannot be just ignored on the ground that the

witness deposed in Court about a year after the occurrence. The

contentions raised by the learned counsel for the appellants that

P.W.1 has made exaggerations while deposing in Court in some

material aspect that took place during course of occurrence

which he has not mentioned in the first information report as

well as in his statement recorded under section 161 Cr.P.C., has

some force but the primary question is whether the entire

evidence of P.W.1 is to be discarded on account of such

exaggerations?

From the contradictions proved, it appears that so far

as the assault that took place inside Purighat police station is

concerned, P.W.1 has not stated in his previous statement before

the I.O. about appellant P.K. Choudhury giving kicks specifically

to his knee and the knee of the deceased and the assault by

appellant P.K. Choudhury to the deceased by a lathi on the head

and on his (P.W.1) left leg and left cheek by same lathi and

giving four blows to him. He has also not stated in his previous

statement about the deceased sustaining swellings all over his

body and appellant P.K. Choudhury giving a slap on his (P.W.1)

cheek and also giving a second phase of beating by lathi to the
88

deceased. He has also not stated in his previous statement about

appellant Pravat Mohanty giving three to four kicks on his

(P.W.1) buttock and assaulting the deceased again by a long

lathi and that the assault was on the shoulder of the deceased.

In the case of Harbeer Singh (supra), it is held that

the explanation to section 162 Cr.P.C. provides that an omission

to state a fact or circumstance in the statement recorded by a

police officer under section 161 Cr.P.C., may amount to

contradiction if the same appears to be significant and otherwise

relevant having regard to the context in which such omission

occurs and whether any omission amounts to a contradiction in

the particular context shall be a question of fact. Thus, while it is

true that every improvement is not fatal to the prosecution case,

in cases where an improvement creates a serious doubt about

the truthfulness or credibility of a witness, the defence may take

advantage of the same.

Though the prosecution case is that M.O.IV is the

bamboo lathi and M.O.VII is the wooden batten with which the

deceased as well as P.W.1 were assaulted but it is not

understood as to why those weapons were not shown to P.W.1

for identification and to be marked as M.Os. at that stage when

he deposed in Court since he is the only witness who stated

about the assault inside the police station. Whether the
89

prosecution had doubt that P.W.1 would not have supported the

case of prosecution that M.O.IV and M.O.VII were the weapons

of offence? The bamboo lathi which has been marked as M.O.IV

was examined by the Scientific Officer (P.W.2) on the date of

inspection at Purighat police station during midnight on

05.05.1985 and he noticed bloodstain on top portion of it and he

marked the lathi as Ext.D. When the said lathi was produced

along with other articles by the investigating officer, according to

P.W.2, those were not under sealed cover. The articles were sent

to the Director, S.F.S.L., Rasulgarh, Bhubaneswar on the prayer

of the investigating officer through the learned S.D.J.M., Cuttack

and on examination, it was found that there was human blood

stain on the lathi. The other weapon of offence i.e. wooden

batten (M.O.VII) was neither produced before P.W.2 nor sent to

S.F.S.L. though it was seized on 05.05.1985 at 11.45 p.m. by

the investigating officer at Purighat police station along with

M.O.IV vide Ext.13 which was prior to the arrival of Scientific

Officer.

In my humble view, it was the duty of the Public

Prosecutor to show the weapons of offence M.O.IV and M.O.VII

to P.W.1 for identification which would have strengthened the

case of prosecution as he was the only witness to the assault.
90

Even though the learned trial Court has not taken

into account the discrepancies between the evidence of P.W.1

vis-a-vis his previous statement before police and considered

only with reference to the first information report but after

considering the contradictions closely and carefully in the

evidence of P.W.1 with reference to the first information report

as well as his previous statement before police, I am of the

humble view that the entire evidence of P.W.1 cannot be

discarded for such contradictions.

D-1. Discussion on lodging of first information report:

A number of comments were made on the lodging of

the first information report (Ext.1). While discussing the

evidence of the informant, it is felt necessary to have a

discussion on the same. It is contended that prior to lodging of

the F.I.R. (Ext.1), information was given by P.W.1 to the police

officials about the commission of cognizable offence and such

information was the real first information report and not Ext.1,

which was lodged at Lalbag police station at a later stage. It is

further contended that Ext.1 has been scribed by one police

officer in the presence of D.S.P., City, Cuttack and other police

officials but the scribe of F.I.R. was not examined. According to

the learned counsel for the appellants, Ext.1 is hit by section 162
91

of Cr.P.C. It is further contended that the lodging of the F.I.R. on

05.05.1985 at 11.00 a.m. is a doubtful feature, as according to

the informant (P.W.1), the writing of the F.I.R. was completed on

that day at about 4.00 p.m. It is further contended that since the

inquest was held by the Executive Magistrate and the dead body

was sent for post mortem examination in connection with

Purighat/Lalbag P.S. Case No.272/1985 and not in connection

with Purighat/Lalbag P.S. Case No.273/1985 even though those

events took place after 11.00 a.m., therefore, the registration of

Purighat/Lalbag P.S. Case No.273/1985 at 11.00 a.m. is a

doubtful feature. It is further argued that if the F.I.R. was

registered at 11.00 a.m. on 05.05.1985 and despatched from the

police station on that day itself as was shown in the formal F.I.R.

which was a Sunday, being a sensational matter, it should have

been placed before the learned S.D.J.M., Cuttack on that very

day at his residential office but it was placed before the learned

S.D.J.M. on 06.05.1985 which creates doubt that the F.I.R. was

ante timed and it was never despatched on 05.05.1985 from the

police station as shown in the formal F.I.R.

P.W.1 stated that on the following day of occurrence,

in the morning, one police babu came in a car to Purighat police

station and took him inside a room and remained with him for
92

about ten minutes and asked him about the incident and he

narrated about the incident including the assault. He further

stated that after the departure of the said police officer, another

police babu came in an Ambassador car and took him to the very

same room and asked him about the incident, however again

P.W.1 stated that the said police babu did not ask him anything

but took him in his car to Lalbag police station.

Section 154 of Cr.P.C. states that every information

relating to the commission of cognizable offence, if given orally

to an officer in charge of a police station, shall be reduced to

writing by him or under his direction and be read over to the

informant; and every such information, whether given in writing

or reduced to writing shall be signed by the person giving it and

the substance thereof shall be entered in a book to be kept by

such officer in such form as the State Government may prescribe

in that behalf. An information given under sub-section (1) of

section 154 of Cr.P.C. which is commonly known as 'first

information report' is a very important document. It is the

earliest and the first information of a cognizable offence recorded

by an officer in charge of a police station. It sets the criminal law

into motion and marks the commencement of the investigation.

The informations made orally or in writing after the
93

commencement of the investigation into the cognizable offence

disclosed from the facts mentioned in the first information report

and entered in the station diary by the police officer or such

other cognizable offences as may come to his notice during the

investigation, will be statements falling under section 162 of

Cr.P.C. Thus there cannot be any dispute that any statement

recorded during the investigation is covered by section 162 of

Cr.P.C. No such information/statement can be treated as an

F.I.R. and entered in the station diary again, as it would in effect

be a second F.I.R. and the same cannot be in conformity with

the scheme of the Code of Criminal Procedure.

Though P.W.1 stated to have narrated about the

incident including the assault to one police officer who came to

Purighat police station, but that officer was not the officer in

charge of a police station, nor was the narration of events

reduced to writing. The narration of events made by P.W.1 was

not even entered in the Station Diary of Purighat police station.

The accusation was against the Inspector in-charge of Purighat

police station and a Senior S.I. of the said police station. At the

time of occurrence, Purighat police station was not notified by

the Government as an independent police station and the first

information reports received in Purighat Police Station were
94

registered in Lalbag Police Station. Therefore, no fault can be

found in bringing P.W.1 to Lalbag Police Station for lodging the

first information report.

It appears from the evidence of P.W.39 that after

P.W.1 was taken to Lalbag Police Station, he gave an oral report

which was reduced to writing by one A.S.I. of Police named Mr.

Jena and certificate about reading over and explaining was also

made by Mr. Jena and it was also signed by Mr. Umesh

Mohapatra, D.S.P., City, Cuttack and treated as F.I.R. (Ext.1).

P.W.1 has also stated that after he was taken to Lalbag police

station in a jeep, he narrated the entire incident from beginning

to end and one police officer reduced his saying into writing and

the contents of the writing were read over and explained to him

and he gave his signature. P.W.1 also proved the F.I.R. and his

signature on it. Of course, the scribe Mr. Jena has not signed or

endorsed anything in Ext.1 and he has also not been examined

during trial and Mr. Umesh Mohapatra in whose presence Ext.1

was lodged has also not been examined during trial but non-

examination of the scribe of the first information report during

trial cannot be a ground to doubt that the lodging of F.I.R. is a

suspicious feature or it is fatal to the prosecution and it can at

best be treated as mere irregularity which can be cured if it is
95

otherwise proved. In view of the above discussion, I am of the

humble view that no first information was lodged prior to lodging

of Ext.1 which is the real F.I.R. and it cannot be said to be a

statement made during investigation to be hit by section 162 of

Cr.P.C.

Of course, it is brought out in the cross-examination

of the informant (P.W.1) that the writing of the F.I.R. was

completed on that day at about 4.00 p.m., but the I.O. (P.W.39)

stated that by the time he reached Lalbag police station at 10.30

a.m., the formal F.I.R. was in the process of being written and

registration of the case was completed at 11 a.m. and he took up

investigation at that time. The I.O. further stated that in

between 11 a.m. to 12 noon, he opened the case diary and

wrote the gist of the F.I.R. in it and that the examination of

P.W.1 by him continued from 12 noon to 1 p.m. and then he

came to Purighat police station and reached there at 1.15 p.m.,

made the spot visit, inspected the police jeep and sent

requisition to the Director of State F.S.L., Rasulgarh for sending

Scientific Officers for collection of physical evidence. Therefore, I

am of the humble view that the F.I.R. (Ext.1) is correctly shown

to have been registered on 05.05.1985 at 11 a.m. and it is not

ante timed as after registration of F.I.R., P.W.39 has started
96

investigation and did various things as enumerated above. The

statement of P.W.1 that writing of the F.I.R. was completed at

about 4.00 p.m. is a misstatement. Of course, the prosecution

could have called for the station diary of Lalbag police station

and proved the same to show what was the actual time of

lodging of the F.I.R. in Purighat/Lalbag P.S. Case No.273/1985

by P.W.1 but since the defence is raising a point regarding ante

timing of the F.I.R., nothing prevented the defence to make a

prayer before the Court in that respect. Therefore, I am of the

humble view that for the non-proving of the station diary of

Lalbag police station, the timing of lodging of the F.I.R. (Ext.1)

cannot be doubted.

It is not in dispute that the inquest over the dead

body was conducted by the Executive Magistrate as well as by

appellant P.K. Choudhury on 05.05.1985 in connection with

Purighat/Lalbag P.S. Case No.272/1985 and inquest reports

Ext.15 and Ext.16 were prepared respectively. The time of

preparation of Ext.16 was in between 8.35 a.m. to 9 a.m. which

was much prior to the registration of Ext.1, whereas Ext.15 was

prepared at 11.17 a.m. which was just after registration of Ext.1.

Since Purighat/Lalbag P.S. Case No.272/1985 was also in

connection with the assault on the deceased, though a different
97

version was presented therein relating to such assault and in

that case also offence under section 302 I.P.C. was added by the

learned S.D.J.M., Cuttack on the prayer of P.W.38 , I am of the

humble view that merely because inquest over the dead body

was conducted by the Executive Magistrate and the dead body

was also sent for post mortem examination in connection with

Purighat/Lalbag P.S. Case No.272/1985, it would be an

extremely farfetched conclusion to hold that by that time Ext.1

was not in existence for which Purighat/Lalbag P.S. Case

No.273/1985 could not be mentioned in inquest report Ext.15.

The learned counsel for the appellants raised

contentions that the presence of Mr. Umesh Mohapatra, D.S.P.,

City, Cuttack at Lalbag police station at the time of lodging of

F.I.R. (Ext.1) at 11 a.m. is a doubtful feature as there are

evidence on record that at that time, he was present at Purighat

police station and made certain station diary entries and he was

also at S.C.B. Medical College & Hospital where inquest and post

mortem over the dead body were conducted. It was argued that

a person cannot remain present at three different places at one

time which is an additional feature to show that Ext.1 was lodged

at a later stage and not at 11 a.m. and the City D.S.P. signed on

it but it was ante timed.
98

In my humble view, this contention has no force.

P.W.39, the I.O. specifically stated that Ext.1 was scribed in

presence of City D.S.P. who also signed on it. Ex.1 shows it was

signed by City D.S.P. at two portions. P.W.39 admits that S.D.

Entry No.182 dated 05.05.1985 of Purighat police station was

made in the hands of City D.S.P. and such entry was made at

10.30 a.m. and in the end of the entry below his signature, the

time 10.45 a.m. has been written. P.W.39 further states that

City D.S.P. Sri Mohapatra was present in Purighat P.S. on

05.05.1985 between 10.30 a.m. to 10.45 a.m. Of course,

P.W.34, the son of the deceased stated that he saw the

Collector, S.P. and City D.S.P. at S.C.B.M.C. Hospital at about 11

a.m. but it cannot be said that he was checking his watch all the

time to remember at what time he saw them exactly. It appears

from the evidence on record that the distance between Purighat

and Lalbag police station is just one and half k.m. and according

to P.W.39, it ordinarily takes five minutes to cover the distance

in a jeep. Therefore, in view of the distance between Purighat

P.S. to Lalbag P.S. and from Lalbag P.S. to S.C.B.M.C. Hospital,

it cannot be said that the duties performed by City D.S.P. Sri

Umesh Mohapatra one after the other at three different places

was an impossible task. This cannot be the reason to doubt that

F.I.R. (Ext.1) was not lodged at 11 a.m.
99

Similarly, delay in placement of F.I.R. (Ext.1) before

Magistrate in this case cannot be said to be so unreasonable that

it would be factor to doubt about timing of its lodging. The F.I.R.

was lodged on 05.05.1985 at 11 a.m. which was a Sunday and it

was shown to have been dispatched from the police station on

the very day, however, it was placed before the learned

S.D.J.M., Cuttack on the next day i.e. 06.05.1985 who signed it.

Rule 148(a) of Orissa Police Rules states that the original of the

first information report shall be sent without delay to the

S.D.J.M. having jurisdiction and the copies of such report shall

be sent to the Superintendent, Circle Inspector and S.D.P.O., if

there be any. Therefore, the first information report should reach

the Magistrate immediately and without undue delay. However,

mere delay in sending the first information report to the

Magistrate cannot be a ground to throw away the prosecution

case if the evidence adduced in the case is found to be credible

and unimpeachable.

In the case of Arjun Marik -Vrs.- State of Bihar,

(1994)2 Supreme Court Reporter 265 , the Hon'ble Court

held as follows:

"...The forwarding of the occurrence report is
indispensable and absolute and it has to be to
forwarded with earliest despatch which intention
100

is implicit with the use of the word 'forthwith'
occurring in Section 157 Cr.P.C., which means
promptly and without any undue delay. The
purpose and object is very obvious which is spelt
out from the combined reading of Sections 157
and 159 Cr.P.C. It has the dual purpose, firstly
to avoid the possibility of improvement in the
prosecution story and introduction of any
distorted version by deliberations and
consultation and secondly to enable the
Magistrate concerned to have a watch in the
progress of the investigation."

In the case of Motilal (supra), it is held that there is

a purpose behind the enactment of section 157 of the Code of

Criminal Procedure. The statutory requirement that the report

has to be sent forthwith itself shows the urgency attached to the

sending of the report. In a given case, it is open to the

prosecution to indicate reasons for the delayed dispatch or

delayed receipt. This has to be established by evidence.

It is common knowledge that on Sunday in the

residential office of the S.D.J.M. or Magistrate in-charge, apart

from the cases of forwarding of accused persons, only

exceptional urgent matters are placed on being moved. After the

F.I.R. is dispatched from the police station, as per practice, it

first comes to the office of Court Sub-Inspector (in short 'C.S.I.
101

Office') where it is entered in G.R. Case register [i.e. Form No.

(R) 2 as per G.R.C.O. (Criminal) Vol.II] serially with date and

G.R. Case number is allotted to the said F.I.R. and then the

C.S.I. places the F.I.R. before the S.D.J.M. or concerned J.M.F.C.

who after perusing the same puts his signature and date on each

page of the F.I.R., on the first order sheet of the case record and

also in the G.R. Case register. After G.R. Case number is allotted

to an F.I.R., it should be placed immediately placed before the

concerned Magistrate for perusal and to make necessary

endorsements, but sometimes it becomes not possible to place

the F.I.R. before the Magistrate on the same day for some

genuine reasons. If the defence pleads that the F.I.R. was not

actually dispatched from the police station on the day as it was

shown in the formal F.I.R. for which it could not be placed before

the Magistrate on the date of its forwarding, then the first

checkpoint is when it was received and registered in the C.S.I.

Office and the defence can call for the said register in accordance

with law during trial to prove it, otherwise the vague contentions

in that respect should not be accepted.

In view of the aforesaid discussion, the comments

made by the learned counsel for the appellants on the lodging of

the first information report (Ext.1) are not acceptable.
102

E. Whether defence plea is acceptable:

The defence plea of the appellants was that on

04.05.1985 the deceased Kasinath Nayak came to Purighat

police station at about 9.50 p.m. to lodge a first information

report regarding assault on him on Kathajori river embankment

at about 9 p.m. by some unknown persons and that he had

sustained injuries on account of such assault. P.W.1

accompanied the deceased to lodge the report and on the F.I.R.

of the deceased, Purighat/Lalbag P.S. Case No.272/1985 was

registered by appellant Pravat Mohanty, who directed appellant

P.K. Choudhury to investigate the case and accordingly the later

took up investigation and maintained case diary.

In order to substantiate its plea, apart from the oral

evidence, the defence relied upon the F.I.R. lodged by the

deceased in Purighat/Lalbag P.S. Case No.272/1985, the case

diary maintained in the said case by appellant P.K. Choudhury

marked as Ext.63, the station diary entries dated 04.05.1985 of

Purighat police station marked as Exts.C, D, E, E/1, F, F/1.

Before going to discuss about the documentary

evidence, it is felt necessary to examine the oral evidence

related to such plea. P.W.1 specifically stated in the chief

examination that on the date of occurrence, the deceased had
103

not lodged any sort of information at the police station and they

had not sustained any sort of injury before going to the police

station on the date of occurrence. He further stated that on the

date of incident, there was no other incident regarding the

assault on the deceased by his opponents on the Kathajori river

embankment near Rajabagicha School. P.W.1 was questioned by

the learned defence counsel on the lodging of the first

information report by the deceased but P.W.1 denied that he

along with the deceased had been to Purighat police station on

04.05.1985 to lodge any first information report relating to the

assault on the deceased on the river embankment at about 9.00

p.m. on that day and he also denied to have made any

statement before police in connection with that case and he also

specifically denied that the deceased came to the police station

sustaining injuries.

P.W.7, the wife of the deceased was also asked about

the incident stated to have taken place on the Kathajori river

embankment in front of Rajabagicha High School in the cross-

examination by the learned defence counsel but she denied that

the deceased sustained severe injuries at about 9.00 p.m. on

04.05.1985 on account of any such incident and that the
104

deceased had been to the police station to lodge information in

connection with that incident.

P.W.11 stated to have seen the deceased as well as

P.W.1 in Purighat police station at about 9.30 p.m. but he stated

not to have seen any sort of injury either on the person of the

deceased or on the person of P.W.1. P.W.13 also stated to have

visited Purighat police station on 04.05.1985 past 10.00 p.m.

and remained there for five minutes but he stated not to have

seen any sort of injury on the deceased and P.W.1. These two

witnesses have completely resiled from their previous

statements made before the I.O. and the Magistrate under

section 164 Cr.P.C. and therefore, the learned trial Court has not

rightly placed any reliance on their evidence.

P.W.33 Bhaghyadhar Bal whose house was adjacent

to Rajabagicha High School stated that on the lunar eclipse day

of year 1985, he had not seen any disturbance taking place near

Rajabagicha High School or heard any hullah though he was

present in his house all through. In view of the distance of his

house from main Kathajori road, the learned trial Court rightly

has not placed any reliance on his testimony.
105

Thus, not a single witness examined on behalf of the

prosecution has stated anything in support of the defence plea

relating to any incident on the Kathajori river embankment.

The learned counsel for the appellants contended

that since the deceased sustained injuries mainly below the

waistline and he was wearing dhoti and half shirt, it might have

missed the notice of others. It is somewhat difficult to

comprehend this argument. If the deceased came to the police

station with the type of bleeding injuries as noticed by the doctor

conducting post mortem examination and he had passed stool,

urine on his dresses and was vomiting and not even in a position

to walk properly, it could not have missed the notice of others

including P.W.1 and in such a condition, the deceased would not

have been allowed to enter into various rooms of police station

to make the floor dirty.

Coming to the documentary evidence, the first

information report stated to have been lodged by the deceased

carries a signature 'Kasinath Nayak' on the bottom portion which

has been marked as Ext.A during the cross-examination of

P.W.31. The said F.I.R. is shown to have been received on

04.05.1985 at 10.00 p.m. at Purighat police station and it was

sent to Lalbag police station where it was registered under the
106

signature of Inspector in charge of Lalbag police station on the

same day at 10.30 p.m. and it is specifically mentioned therein

that appellant P.K. Choudhury had already taken up

investigation. The signature of the I.I.C. of Lalbag police station

has been marked as Ext.A/1. There is no material as to who

scribed the F.I.R. which was in Odia language stated to have

been presented by the deceased. P.W.39 stated that he

compared the standard writings of all the employees of Purighat

police station with the disputed F.I.R. but the writings did not

tally and therefore, he could not know as to who scribed the Odia

portion of the disputed F.I.R. in Purighat/Lalbag case no.272/85.

P.W.34, the son of the deceased specifically stated that the

signature Ext.A did not belong to his father and that usually his

father wrote his name by using 'Talabyasa'. P.W.31, the Senior

Clerk in the Health Office of Cuttack Municipality though

identified Ext.A to be the signature of the deceased when

confronted to him by the learned defence counsel in the cross-

examination but it is not understood as to how he was so

confident about it particularly when in other signatures of the

deceased proved on the official documents, 'Talabyasa' have

been used whereas in Ext.A, 'Dantasa' has been used. He was

not present when Ext.A was put on the F.I.R. and he was

examined in Court one year and four months after the
107

occurrence. Though the defence has cleverly elicited about Ext.A

on the last but one question of the cross-examination of P.W.31

and thereafter the prosecution has not put any question on this

aspect by way of re-examination but it is difficult to accept Ext.A

to be the signature of the deceased solely on the testimony of

P.W.31. The handwriting expert (P.W.27) after examining the

admitted handwritings of the deceased and the disputed

signature Ext.A, opined that for want of sufficient basis, it was

not possible to say as to whether the person who wrote the

admitted signatures and writings marked as K/1 to K/11 also

wrote the disputed signature which has been marked by him as

X-1. He further stated that the disputed signature marked X-1

revealed certain amount of freedom of stroke and some amount

of resemblance in inherent characteristic when compared with

the admitted signatures and writings marked K/1 to K/11. Thus

the evidence of P.W.27 is no way helpful either to the

prosecution or to the defence to arrive at a conclusion whether

the Odia signature 'Kasinath Nayak' appearing on the F.I.R. of

Purighat/Lalbag P.S. Case No.272/1985 is that of the deceased

or not. The learned trial Court held that the handwriting expert's

opinion is confusing as he stated to have found some amount of

resemblance in inherent characteristic with the admitted writing

and simultaneously said that sufficient characteristic and
108

similarities could not be found. The learned trial Court accepted

the statement of P.W.34 to hold that the disputed signature

reading 'Kasinath Nayak' in the F.I.R. relating to Purighat/Lalbag

P.S. Case No.272/1985 was not in the hands of the deceased.

P.W.39 who took charge of investigation of

Purighat/Lalbag P.S. Case No.272/1985 stated that the case

diary in the said case was opened by appellant P.K. Choudhury

and first five sheets of the case diary were written in the

handwriting of the said appellant. He further stated that though

the date of seizure in Ext.23/3 was shown to have been prepared

on 04.04.1985 but the appellant P.K. Choudhury put his

signature and below it, he had put the date as 05.05.1985. He

further stated that the witnesses shown to have been examined

by appellant P.K. Choudhury in Purighat/Lalbag P.S. case

No.272/1985 were re-examined but they did not support their

alleged previous statements made before the appellant and

some of them even denied to have been examined by him.

Now the crucial question comes for consideration is

whether Purighat/Lalbag P.S. Case No.272/1985 is an out and

out false case and the F.I.R. of the said case carries an

imaginary story and the so-called signature of the deceased vide

Ext.A is a forged one. As already discussed, there is lack of oral
109

evidence that such an occurrence at all took place on the date,

time and place as pleaded by the defence. There is no evidence

as to who scribed the F.I.R. and P.W.1 who accompanied the

deceased from Basti to Purighat police station has denied about

any such incident of assault on the deceased being taken place

on the Kathajodi river embankment as well as any F.I.R. lodged

by the deceased in connection with his assault and no other

witness stated about it. Final report was submitted in that case

by P.W.39 indicating it to be a false case and thus there is

nothing to support the defence plea. The learned trial Court has

vividly dealt with entire defence plea very carefully and

cautiously and came to hold that Purighat/Lalbag P.S. Case

No.272/1985 is a false case and the alleged investigation by

appellant Pratap Kumar Choudhury was just a paper transaction.

Law is well settled that the Court may accept the fact proved

through expert's evidence when it has satisfied itself on its own

observation that it is safe to accept the opinion of the expert.

After closely examining the admitted signatures of the deceased

on the documents i.e. in Exts.5 to 5/5, 6, 7, 8 and comparing

those signatures minutely with disputed signature Ext.A, I am of

the humble view that Ext.A does not tally with signatures of the

deceased on official documents.
110

The learned counsel for the appellants argued that

since the F.I.R. in Purighat/Lalbag P.S. Case No.272/1985

reached Lalbag police station at 10.30 p.m. on 04.05.1985 and

I.I.C., Lalbag police station has put his signature, it cannot be

said that the signature Ext.A is a forged one or that the narration

of events in that F.I.R. is a fabricated version. It was further

argued that I.I.C., Lalbag police station should have been

examined by prosecution to clarify the position. This contention

is not acceptable as merely because the F.I.R. reached Lalbag

police station at 10.30 p.m. on 04.05.1985, it cannot be said the

narration of events therein are correct. According to P.W.38,

Ext.A/1 is the endorsement and signature of Mr. Mahakud, S.I.

of Lalbag police station. The said Mr. Mahakud has mentioned

himself as I.I.C., Lalbag P.S. below his signature and date in

Ext.A/1. Neither the F.I.R. forwarded to Lalbag police station was

written in the presence of said Mr. Mahakud nor it is the defence

plea that the deceased had put his signature in presence of Mr.

Mahakud. Even if such F.I.R. reached at Lalbag police station at

10.30 p.m. on 04.05.1985, the point for consideration is whether

any such occurrence as narrated in the said F.I.R. had at all

taken place and whether the deceased lodged the F.I.R. by

putting his signature as appearing on the F.I.R.
111

The learned counsel for the appellants submitted that

Purighat/Lalbag P.S. Case No.272/1985 was not investigated

properly and final report was submitted. It was argued that in

the case diary of the said case, appellant P.K. Choudhury has

mentioned the presence of one Biswanath Bardhan during his

spot visit on 04.05.1985 but the said witness was not cited as a

charge sheet witness. In my humble view, the spot visit by the

appellant in the late night itself appears to be a doubtful feature

inasmuch as who would have identified the alleged spot of

assault to the appellant in the deep night when neither the

deceased nor P.W.1 accompanied him. It further appears as if in

that night, the witness Biswanath Bardhan was waiting for the

arrival of the appellant to give his statement on the river

embankment. The possibility of making such entries relating to

spot visit and examination of witness to make out a plea of alibi

from 10.15 p.m. onwards from the police station cannot be ruled

out.

According to the learned counsel for the appellants, if

the said witness Biswanath Bardhan on examination would have

denied about any occurrence that took place on the river

embankment as per defence plea, that would have dislodged the

entire defence case and therefore, non-citing of such an
112

important witness in the charge sheet indicates that the

investigation was conducted in an unfair manner with malafide

intention. The fact remains that final report was submitted in

Purighat/Lalbag P.S. Case No.272/1985 vide Ext.64 indicating

the case to be false. Reasons have been assigned therein as to

why the case was a false one. No one has challenged such

report. P.W.39 has also clarified as to why he submitted final

report in that case. In the case in hand, it is not required to be

adjudicated whether final report was submitted rightly or in an

unfair manner. P.W.39 stated that he examined Biswanath

Bardhan on 19.06.1985 but not cited him as charge sheet

witness. If according to the defence, Biswanath Bardhan was

such an important witness who could have thrown light about the

alleged incident taking place on Kathajori river embankment on

04.05.1985 at 9 p.m., nothing prevented the defence to make a

prayer before the learned trial Court to summon such a witness

at appropriate stage for examination as a defence witness.

The case diary of Purighat/Lalbag P.S. Case

No.272/1985 maintained by appellant P.K. Choudhury vide

Ext.63 indicates that injury requisition in respect of the deceased

for his examination in the casualty of S.C.B. Medical College &

Hospital was prepared prior to 10.15 p.m. when he left for spot
113

visit. The Station Diary of Purighat police station dated

04.05.1985 at serial no.164 at 11 p.m. indicates about receipt of

injury report of Kasinath Naik (deceased) from appellant P.K.

Choudhury, who was the I.O. of the case. In the left hand side of

the said S.D. entry, it is mentioned that the Havildar was out

with injured. When the deceased was present in Purighat police

station all through from the time of his arrival till he was taken in

a police jeep after midnight to Casualty Department and was

declared dead there by the doctor (P.W.14) at 3.15 a.m., the

preparation of his injury requisition prior to 10.15 p.m. by

appellant P.K. Choudhury and also receipt of injury report at 11

p.m. are highly suspicious features. Similarly if as per the case

diary (Ext.63) prepared by the appellant P.K. Choudhury, he left

Purighat police station at 10.15 p.m. on 04.05.1985 and

returned at 12 midnight how could he be remained present at

11.00 p.m. at the police station to hand over the injury report as

mentioned in the station Diary.

Of course, it is not necessary for the defence to

prove its case with the same rigour as the prosecution is

required to prove its case. It is sufficient for the accused to

prove the defence on the touchstone of preponderance of

probability. The defence can succeed in throwing reasonable
114

doubt on the prosecution case which is sufficient to enable the

Court to reject the prosecution version. Once the defence gives

reasonable and probable explanation, it is for the prosecution to

prove affirmatively that the explanation is false.

The written report stated to have been presented by

the deceased was received at 10.00 p.m. at Purighat police

station and the endorsement of appellant Pravat Mohanty

treating the same as F.I.R. and directing appellant P.K.

Choudhury to take up investigation have been mentioned in it

and the hand writings have been proved by P.W.39. Even though

this F.I.R. stated to have reached at 10.30 p.m. at Lalbag police

station and Purighat/Lalbag P.S. Case No.272/1985 was

registered but while sending the F.I.R. in Purighat/Lalbag P.S.

Case No.273/1985 to the S.D.J.M., Cuttack on 05.05.1985, the

F.I.R. stated to have been lodged by the deceased on

04.05.1985 was not sent to Magistrate for which it was placed

before the learned S.D.J.M. on 07.05.1985 which was two days

after the date of lodging of F.I.R.

Now, let me discuss about the two seizure lists

prepared by appellant P.K. Choudhury in connection with

Purighat/Lalbag P.S. Case No.272/1985 which were marked as

Ext.23/3 and Ext.42. Ext.23/3 indicates seizure of one half shirt
115

and one napkin on production of deceased at 10.05 p.m. at

Purighat police station. The witness to the seizure namely

Maheswar Nayak who was examined as P.W.17 did not support

the seizure. P.W.17 stated that four to five days of the death of

the deceased, appellant P.K. Choudhury called him and took his

signature vide Ext.23 on a written paper and that he had not

gone through that paper and was not aware that it was a seizure

list. In my humble view, such a statement of P.W.17 is not

acceptable as appellant P.K. Choudhury was placed under orders

of suspension on 05.05.1985 and he stopped investigation of

Purighat/Lalbag P.S. Case No.272/1985 at 3 p.m. on that day

and P.W.38 took over charge of investigation of that case on

06.05.1985. It is not understood as to why the half shirt and

napkin under seizure list Ext.23/3 were not seized in the

presence of P.W.1 who accompanied the deceased to the police

station. Though the date and hour of seizure was mentioned in

Ext.23/3 as 04.05.1985 at 10.05 p.m. on the top but appellant

Pratap Kumar Choudhury has put the date as 05.05.1985 below

his signature in the said seizure list. Moreover, when the case

was registered at 10.30 p.m. at Lalbag police station as

Purighat/Lalbag P.S. Case No.272 of 1985, it is not understood

as to wherefrom the appellant P.K. Choudhury got the P.S. Case

number to mention it on the seizure list prepared at 10.05 p.m.
116

In the case diary, appellant P.K. Choudhury has inserted this

seizure aspect in between the gist of the F.I.R. and examination

of the deceased in small letters. The reply given by the appellant

P.K. Choudhury in his accused statement in question no.46 on

the seizure list Ext.23/3 is highly unsatisfactory as he stated that

the seizure started at 10.00 p.m. and it was completed at 12.00

p.m. and therefore, he put his date as 05.05.1985. Appellant

P.K. Choudhury seems to have left the police station for spot

visit at 10.15 p.m. as per the case diary prepared by him and

closed the diary at 12.00 midnight. Therefore, the explanation

given by the appellant that the seizure of a half shift and a

napkin continued for two hours cannot be accepted by any

stretch of imagination. It seems that the wearing apparels of the

deceased like dhoti, ganji and deunria and steel ring which were

marked as M.Os.I, II, III and VI were produced by P.W.8 after

post mortem examination before the I.O. and accordingly, those

were seized under seizure list Ext.11. The shirt and napkin

seized by the appellant under seizure list Ext.23/3 were also sent

for chemical examination being marked as 'K' and 'L' and the

C.E. report marked as Ext.60 indicates that the blood stain were

detected in those two exhibits.. The half shirt and the napkin

were not shown to P.W.1 to prove whether those were of the

deceased or not, however the wife of the deceased being
117

examined as P.W.7 identified the shirt (M.O.VIII) to be that of

her husband and further stated that the deceased had put on

that shirt while going to the police station. In my view, the

articles seized under Ext.23/3 can be said to be of the deceased

though there are some irregular features in the preparation of

seizure list as already discussed.

Coming to the other seizure list prepared by

appellant P.K. Choudhury i.e. Ext.42, it appears that on

05.05.1985 at 7.30 a.m., some soil containing the vomiting

substance of the deceased was seized in front of the Casualty

Department. P.W.36 Trinath Nayak is a witness to the said

seizure list but he stated that he did not notice any vomited

substance in the soil. P.W.35 Bulu Nayak stated that appellant

P.K. Choudhury asked him to collect some wet sand lying in front

of the casualty verandah which was collected by him and seized

but he did not notice any sign of vomiting. The earth with

vomiting substance was also sent for chemical analysis being

marked as 'M' and the chemical examiner did not find any

vomiting substance in it as per the C.E. report Ext.60. The

seizure list Ext.42 seems to have been prepared to show that the

deceased was alive when he arrived at Casualty Department and

there he vomited. However, P.W.30 who was the attendant of
118

the Casualty Department and was on night duty on

04/05.05.1985 stated that police brought the deceased to

Casualty at 3.00 a.m. and he informed the doctor and the

deceased was taken to the bed in the Casualty Department and

the doctor on examining him, declared him dead. He specifically

stated that he had not seen the deceased vomiting. In his cross-

examination, he has stated that he had not seen any saliva

coming either from the nose or mouth of the deceased. P.W.14 is

the doctor who was in-charge of Casualty stated that he received

one Kasinath Naik dead at 3.15 a.m. on 05.05.1985. Therefore,

the contents of this seizure list are false and preparation of such

a document makes the conduct of the appellant P.K. Choudhury

more suspicious.

As per the case diary prepared by appellant Pratap

Kumar Choudhury in Purighat/Lalbag P.S. Case No.272/1985, he

left Purighat police station at 10.15 p.m. on 04.05.1985 for

investigation of the case and returned at 12 midnight. The

station diary entries nos.163 and 166 dated 04.05.1985 of

Purighat police station also indicate about the same. Within

fifteen minutes of his stay at Purighat police station from 10 p.m.

to 10.15 p.m., appellant P.K. Choudhury seems to have opened

the case diary in that case, mentioned the gist of the F.I.R.
119

stated to have been presented by the deceased, seized some

wearing apparels of the deceased under a seizure list, examined

the deceased, issued injury requisition for examination of the

deceased and also examined P.W.1 and recorded his statement.

The learned trial Court rightly held that within such a short span

of fifteen minutes, it was not possible on the part of appellant

Pratap Kumar Choudhury to do so many things including

arresting the deceased and P.W.1 in connection with

Purighat/Lalbag P.S. Case No.269/85 where they were not even

named as accused in the F.I.R. The case diary seems to have

been so prepared for the purpose of taking plea of alibi if

contingency so arises and to show that he had not participated in

the assault on the deceased and P.W.1 that the prosecution

put forth to have taken place after 10.15 p.m.

It is contended that since appellant P.K. Choudhury

was placed under orders of suspension on 05.05.1985 for which

he stopped investigation of Purighat/Lalbag P.S. Case

No.272/1985 and he was present in S.C.B. Medical College from

early morning of 05.05.1985 till 12.30 p.m., there was no scope

on his part to make false entries as alleged by the prosecution.

As already indicated, most of the entries in the case diary of the

said case including the preparation of one seizure list were prior
120

to his leaving the police station at midnight. Another irregular

feature was noticed in the preparation of the inquest report

(Ext.16) by him in minimizing the injuries on the deceased. The

appellant maintained the case diary till 3 p.m. on 05.05.1985.

Therefore, the contentions are not acceptable.

In view of the foregoing discussions, the defence

plea that any occurrence of assault on the deceased took place

on the Kathajori river embankment on 04.05.1985 at about 9.00

p.m. in which the deceased sustained injuries and came to lodge

the first information report to Purighat police station and

accordingly, the F.I.R. was registered and that as per the

direction of appellant Pravat Mohanty, appellant P.K. Choudhury

took up investigation of the case and maintained case diary vide

Ext.63 mentioning all correct state of affairs is not acceptable. I

am of the considered view that the deceased had not presented

any F.I.R. on 04.05.1985 at 10 p.m. at Purighat police station

and a false F.I.R. is shown to have been presented by him which

carries the forged signature of the deceased vide Ext.A.

F. Lacunas in investigation:

The learned counsel for the appellants pointed out

certain lacunas in the investigation which is now required to be

discussed. It is contended that the evidence of P.W.39 that he
121

received oral communication in the residential office of the D.G.

of Police at about 9.00 a.m. on 05.05.1985 in which he was

directed to investigate three cases i.e. Purighat/Lalbag P.S. Case

Nos.269/1985, 272/1985 and 273/1985 is unbelievable as by

that time the F.I.R. in Purighat/Lalbag P.S. Case No.273/1985

was not registered and it was only registered according to the

prosecution on that day at 11.00 a.m. It is further argued that

when the office order vide Ext.66 was issued on 06.05.1985

posting P.W.39 in Purighat police station as Addl. I.I.C. as well as

directing him to be the investigating officer of all the three cases,

how could and under what authority he investigated

Purighat/Lalbag P.S. Case No.273/1985 on 05.05.1985 after the

registration of the first information report. It is further argued

that though direction was issued to P.W.39 to take up

investigation of Purighat/Lalbag P.S. Case Nos.269/1985 and

272/1985 simultaneously along with Purighat/Lalbag P.S. Case

No.273/1985 but he took charge of investigation of those two

cases only on 26.05.1985. It is further argued that many

important witnesses who could have substantiated the defence

case were not deliberately examined and even if some of them

were examined but they were not shown as charge sheet

witnesses. It is further argued that P.W.39 did not submit charge

sheet against some of the F.I.R. named accused persons in
122

Lalbag/Purighat P.S. Case no.269 of 1985 whereas he submitted

charge sheet against some who were not even named in the first

information report. All these aspects, according to the learned

counsel for the appellants indicate about the lapses in the

investigation made by P.W.39 for which the appellants are

entitled to benefit of doubt.

In the case of State of W.B. -Vrs.- Mir Mohammad

Omar and Ors. reported in (2000)8 Supreme Court Cases

382, the Hon'ble Supreme Court observed as follows:

"41.....Castigation of investigation unfortunately
seems to be a regular practice when the trial
courts acquit the accused in criminal cases. In
our perception, it is almost impossible to come
across a single case wherein the investigation
was conducted completely flawless or absolutely
foolproof. The function of the criminal courts
should not be wasted in picking out the lapses in
investigation and by expressing unsavoury
criticism against investigating officers. If
offenders are acquitted only on account of flaws
or defects in investigation, the cause of criminal
justice becomes the victim. Effort should be
made by courts to see that criminal justice is
salvaged despite such defects in
investigation........"
123

P.W.39 stated that on 05.05.1985, he was ordered to

take charge of investigation in Purighat/Lalbag P.S. Case

Nos.269/2985, 272/1985 and 273/1985 and accordingly, he

proceeded to Lalbag police station where he found P.W.1 was

lodging the F.I.R. before City D.S.P. who registered

Purighat/Lalbag P.S. case No.273/1985. He further stated that

he was so directed to take charge of investigation by the Director

General of Police. In the cross-examination, he stated that the

order was communicated to him by the D.G. -cum- I.G. himself.

He further stated that he received oral communication of the

Director General of Police directing him to be the investigating

officer on 05.05.1989 which was a Sunday and the written

communication was received on 06.05.1985. According to

P.W.39, he received oral communication in the residential office

of D.G. of Police at about 9.00 a.m. in the morning. He further

stated that he was posted in Purighat police station by the D.G.

-cum- I.G. and the said order was passed simultaneously with

the order directing him to be the I.O. Ext.66 is the copy of the

order of D.G. of police, Orissa, Cuttack communicated to P.W.39.

In the cross-examination, it has been elicited that the residential

office of D.G of Police did not remain close on Sunday. The I.O.

fairly admitted that he had not mentioned in the case diary that

he received oral intimation from D.G. of police.
124

It appears that when the death news of the deceased

on account of his assault in Purighat police station spreaded,

P.W.16 approached the Superintendent of Police and District

Magistrate and talked with D.I.G. of Crime Branch and taking

into account the situation precipitated by consequential

commotion, the D.G. of police orally directed P.W.39 to take up

investigation on 05.05.1985 but the written order was

communicated to P.W.39 on 06.05.1985. The said written order

dated 06.05.1985 has been marked as Ext.66. It is not the case

of the defence that P.W.39 was not competent to investigate the

cases. If the residential office of the D.G. of police was open on

05.05.1985 where P.W.39 received the oral direction from the

D.G. of Police, it sounds absurd that he would have insisted the

D.G. of police to pass a written order for proceeding to Purighat

police station to take up investigation particularly when

sensitiveness of the matter required immediate action otherwise

there would have been growing public resentment. Therefore, no

fault can be found with P.W.39 in obeying the oral order of his

superior authority and coming to Lalbag police station to

investigate the cases. It appears from the evidence of P.W.1

that while he was in Purighat police station, two police officers

came in car one after another in the morning and the first police

officer interrogated him for ten minutes about the incident and
125

the second officer took him in his car to Lalbag police station for

lodging the first information report. The station diary entry

no.182 dated 05.05.1985 of Purighat police station made at

10.30 a.m. by City D.S.P. also corroborates the evidence of

P.W.1. At Lalbag police station, steps were taken to reduce the

oral account of P.W.1 into writing. Of course, there is some

confusion relating to timing of the oral order passed by D.G. of

police to P.W.39 to take up investigation of the cases, but that

would not be factor to view the lodging of F.I.R. by P.W.1 and

taking over investigation by P.W.39 in a suspicious manner. In a

sensational case like this, it was the utmost duty of a responsible

and prudent investigating officer not only to take up the

investigation as per the order of the superior authority but also

to take all consequential steps as quick as possible so that the

evidence should not disappear particularly when it had come to

light that by that time another version of the occurrence relating

to the injuries sustained by the deceased was presented on the

so-called F.I.R. of the deceased and the appellant P.K.

Choudhury was carrying out investigation of the said case as per

the direction appellant Pravat Mohanty.

The evidence of P.W.39 clearly indicates that in a

non-stop way, he carried out investigation by examining
126

witnesses, making spot visit, conducting seizure of articles,

sending information to Scientific Officers to visit the spot, going

through the station diary entries of Purighat police station and

also remaining present with the scientific team during their spot

visit in the midnight. All these things performed by P.W.39 on a

single day i.e. on 05.05.1985 would have got delayed had he

waited for the written order which he received on the next day

i.e. 06.05.1985. Therefore, there was no illegality on the part of

P.W.39 to investigate the matter on the oral direction of the D.G.

of Police before receipt of Ext.66.

Coming to non-examination/non-citation of some

witnesses in the charge sheet, it is the settled law that

investigation is in the absolute domain of the investigating

agency. Whom the investigating officer would examine during

course of investigation and whom he would cite as charge sheet

witnesses depends completely on him, of course the

investigation is to be done in an impartial and fair manner to

ascertain the truth. Merely because some of the witnesses who

might have supported the defence case were not examined

during course of investigation nor cited as charge sheet

witnesses, that itself would not be a factor to reject the

prosecution case. If the defence felt that any material witnesses
127

were left out from the list of charge sheet witnesses, even

though their statements were on record or any particular witness

should have been examined to throw light on certain aspects,

the defence could have filed appropriate application to summon

such witnesses assigning reasons for their examination. The trial

Court on being satisfied that the examination of any such

witnesses mentioned in the application of the defence counsel

was necessary for arriving at truth and for just decision of the

case, would have allowed such petition and permitted such

witnesses to be examined as 'defence witnesses'. Even the Court

has got power to examine any witness as 'Court witness' for the

ends of justice. The defence has not taken any step to examine a

single witness as defence witness though it has proved certain

documents. Therefore, I am of the humble view that non-

examination/non-citation of some witnesses in the charge sheet

cannot be a factor to hold that the investigation was perfunctory.

The next contention was raised that Purighat/Lalbag

P.S. Case No.269/1985 was not investigated properly for which

accused persons named in the F.I.R. were not charge sheeted

whereas others whose name do not find place in the F.I.R. have

been charge sheeted. The first information report in

Purighat/Lalbag P.S. No.269/1985 was registered against seven
128

accused persons and charge sheet was submitted against five

persons and three sons of the deceased though specifically

named in the F.I.R. were not charge sheeted. There is no

mandate in law for the investigating officer to file charge sheet

against all the F.I.R. named accused persons. After proper

investigation, if the I.O. finds that there is no sufficient material

against some of the accused persons relating to their

involvement in the alleged incident, he is not bound to submit

charge sheet against them merely because the informant named

them as accused in the F.I.R. Even an informant can be charge

sheeted as accused in the same case, if clinching materials come

against him in course of investigation. If P.W.13, who was the

informant in P.S. Case No.269/1985 was not satisfied with the

submission of charge sheet only against five persons, various

options were available with him including filing of a complaint

petition which he had not done. Therefore, it cannot be said that

P.W.39 conducted perfunctory investigation.

It is correct that even though P.W.39 was directed to

take up investigation of all the three cases, he took over charge

of P.S. Case Nos. 269/1985 and 272/1985 only on 26.05.1985

but after taking over investigation, he filed final report in P.S.

Case No.272/1985 vide Ext.64 and charge sheet in P.S. Case
129

No.269/1985. There is no evidence that the conclusion arrived at

by P.W.39 either in P.S. Case No. 269/1985 or P.S. Case

No.272/1985 were challenged either by the informant or any

aggrieved persons in any Court. P.W.39 specifically stated that

he has explained the reason for delay in taking over investigation

of Purighat/Lalbag P.S. Case No.273/1985 in the case diary of

Purighat/Lalbag P.S Case No.272/1985. Therefore, there is

nothing on record to show that P.W.39 deliberately delayed in

taking over investigation of Purighat/Lalbag P.S. Case

Nos.269/1985 and 272/1985.

Thus the contentions raised by the learned counsel

for the appellants relating to certain lacunas in the investigation

are not acceptable.

G. Non-examination of independent witnesses and police

staff regarding the occurrence inside Purighat police

station:

It is contended by the learned counsel that materials

on record indicate that one Gadadhar Swain and Aswini Kumar

Mohapatra who were the outsiders were present at some point of

time during the course of the occurrence in Purighat police

station but they have not been examined. Similarly the jeep

driver Sk. Firoj, Diary in-charge A.S.I. Prafulla Mishra, constables
130

N.C. Samal, Prafulla Samanta, Sentry constables Gopabandhu

Sadangi and Ananda Nayak as well as A.S.I. of Police C.S. Panda

were present at some point of time in police station during the

occurrence but they have not been examined.

Some of the official witnesses like P.W.8, P.W.9

present in Purighat police station at the relevant point of time

were examined but they did not support the prosecution case.

Some of the outsiders like P.W.12 and P.W.13 who also stated

about the occurrence in their previous statements were

examined but they also did not support the prosecution case.

There was serious allegation against A.S.I. of police Prafulla

Mishra that he entered certain incorrect facts in the station diary

of Purighat police station to show genuineness of Purighat/Lalbag

P.S. Case No.272/1985.

Law is well settled that withholding of material

witnesses who could have unfolded the genesis of the incident or

essential part of the prosecution case would be a factor for the

Court to draw adverse inference against the prosecution but

where the overwhelming evidence is already available on record

and examination of other witnesses would only be a repetition or

duplication of the evidence already adduced, non-examination of

other witnesses may not be material. It has come on record of
131

the evidence of P.W.39 that during his investigation, he did not

receive cooperation from the police staff of Purighat police

station and Lalbag police station, though he has not mentioned

about any obstruction to his investigation in the case diary. He

has also stated that he had no personal hostility with the officers

and staff of Purighat police station. In my humble view, it is not

at all necessary to examine all the persons as pointed out by the

learned counsel for the appellants. Section 134 of the Evidence

Act provides that no particular number of witnesses is required

for proof of any fact. It is not the number of the witnesses but

the quality of evidence which is required to be taken note of by

the Court for arriving at a conclusion whether the prosecution

case is to be accepted or rejected. Though the selection of the

witnesses to prove an essential part of the prosecution case

should be fair but the defence cannot compel the prosecution to

examine any particular witness. At best, the Court can draw

adverse inference against the prosecution for withholding

material witnesses. Therefore, I am of the view that non-

examination of some witnesses as pointed out by the learned

counsel for the appellants cannot be a factor to discard the

prosecution case.
132

H. Non-examination of Executive Magistrate to prove

inquest report (Ext.15):

According to the prosecution case, the Executive

Magistrate N.K. Das prepared the inquest report (Ext.15) over

the dead body on 05.05.1985 at 11.17 a.m. in the mortuary of

S.C.B.M.C. Hospital, in which more number of injuries on the

person of the deceased were reflected than the inquest report

(Ext.16) prepared by appellant P.K. Choudhury on the same day

in between 8.35 a.m. to 9.00 a.m.

Though the learned trial Court has observed that the

appellant P.K. Choudhury had minimized the actual injuries

sustained by the deceased but the Executive Magistrate who

prepared the inquest report has not been examined during trial.

The inquest report (Ext.15) was proved first by P.W.8

Brahmananda Behera and then by P.W.16 Biswanath Pandit, who

is a witness to the inquest report and he stated about the arrival

of the Executive Magistrate for conducting the inquest and

preparing the report in the presence of Inspector of Police,

Mangalabag police station as well as appellant P.K. Choudhury.

He further stated that Ranendra Pratap Swain, Chittaranjan

Mohanty and Krushna Chandra Patra were present at the time of

inquest and they also signed in the inquest report. He further
133

stated that inquest continued for about one and half hours and

everything was noted by the Executive Magistrate and the

inquest was held in their presence. P.W.39 also said that Ext.15

is the inquest report in respect of the dead body of the deceased

prepared by the Executive Magistrate. He has denied the

suggestion of the defence that he was not acquainted the

handwriting and signature of N.K. Das and that the inquest

report Ext.15 has been manufactured under the signature of so-

called Executive Magistrate N.K. Das.

On comparison of the two inquest reports i.e. Ext.15

and Ext.16, it appears that Ext.15 has mentioned the injuries in

a detailed manner and those injuries tallied with the post

mortem report. Some of the injuries mentioned in Ext.15 as well

as the post mortem report do not find place in Ext.16. It is

mentioned in Ext.16 that swelling was noticed on palm of the

right hand and one finger of the right hand and thumb of left

hand and below the knee portion of both the legs, the injuries

were also noticed. Comparing P.W.16 with the post mortem

report, I am of the view that the learned trial Court rightly held

that while preparing inquest report vide Ext.16, appellant P.K.

Choudhury has minimized the injuries. In view of section 174 of

Cr.P.C. and also column no.5 of the inquest report which
134

indicates that apparent injuries or marks on the body are to be

noted down, the conduct of appellant P.K. Choudhury in not

mentioning some of the injuries shows his malafide conduct in

preparing the inquest report himself without taking the help any

Executive Magistrate.

In view of the foregoing discussions, non-

examination of the Executive Magistrate cannot a factor not to

take into account the inquest report Ext.15 as an authentic

document.

I. Whether T.I. Parade of appellant P.K. Choudhury was

necessary:

It is contended by the learned counsel for the

appellants that appellant P.K. Choudhury was a known person to

P.W.1 and P.W.1 deposed against him in I.C.C. Case No.28 of

1985 filed by P.W.34 Sukanta Nayak, the son of the deceased.

Therefore, not naming the said appellant in the F.I.R. or in the

previous statement of P.W.1 casts doubt about his participation

in the occurrence. It is further contended that there was no need

to conduct T.I. Parade.

It is not in dispute that in the first information report

as well as in the 161 Cr.P.C. statement, P.W.1 has not named
135

appellant P.K. Choudhury, however he stated that a person

having moustache along with appellant Pravat Mohanty assaulted

them. P.W.1 identified both the appellants in the dock and also

named appellant P.K. Choudhury as 'Choudhury Babu'. He stated

that he did not know appellant Choudhury Babu prior to the

incident and that he had identified him in a T.I. Parade after the

incident. In the cross-examination, P.W.1 stated that he deposed

in I.C.C. Case No.28 of 1985 which was filed by P.W.34 and in

that case, he was examined under section 202 Cr.P.C. two to

three months prior to the date of occurrence. The deposition

copy of P.W.1 in the said complaint case has not been proved.

The certified copy of the order sheet in I.C.C. Case No.28 of

1985 has been marked as Ext.41. The order dated 29.03.1986 is

the order taking cognizance and issuance of process against the

appellant P.K. Choudhury and one P.K. Jaisingh, S.I. of Police.

The learned Magistrate has passed a detailed order where the

evidence of the witnesses has been discussed. In 202 Cr.P.C.

enquiry, the informant (P.W.1) was examined as P.W.2 but there

is nothing to show that he named appellant P.K. Choudhury,

though he stated that Police Babu assaulted the complainant

with a lathi which broke and when the mother of the complainant

came and protested, she was pushed and assaulted by another

stick and that the complainant became senseless. Therefore,
136

from the order sheet, it is not clear whether P.W.1 knew the

name of appellant P.K. Choudhury. Even in Court, he only used

the surname of the appellant P.K. Choudhury.

Therefore, merely because P.W.1 has not named

appellant P.K. Choudhury in the F.I.R. as well as in the 161

Cr.P.C. statement but stated about the participation of one

person having moustache and identified him in the test

identification parade, it cannot be a factor to doubt that

appellant P.K. Choudhury was not the person who was having

moustache and present in the police station at the relevant point

of time. In fact, appellant P.K. Choudhury himself admits about

his presence in the police station when P.W.1 and the deceased

arrived. Since in the prosecution evidence, it appears that there

were other police officers in Purighat police station having

moustache and the petitioner was not aware about the full name

of the appellant P.K. Choudhury, therefore, it cannot be said that

an illegality has been committed by P.W.39 in making a prayer

before the Magistrate to hold test identification parade of

appellant P.K. Choudhury. Moreover, no infirmity has been

pointed out in the test identification parade conducted by P.W.24

Niranjan Das, the learned J.M.F.C., Cuttack who proved the T.I.

parade report Ext. 24.
137

J. Whether post mortem report finding negatives ocular

testimony of P.W.1:

It is contended by the learned counsel for the

appellants that P.W.1 stated that after taking some tiffin in the

house of the deceased, they proceeded to Purighat police station

and P.W.7, the wife of the deceased stated that she gave raw tea

and puri and halua to P.W.1 and the deceased as that was a

lunar eclipse day and then they proceeded to the police station

along with Havildar. It is further stated that after taking tiffin in

his house, the deceased had not taken any other food prior to his

death. Though the deceased was offered bread in Purighat police

station but he did not take it. However, the doctor (P.W.37)

conducting post mortem examination found undigested food i.e.

rice and vegetables in the oropharynx and larynx and mouth also

contained semi-digested food like rice, vegetables residue inside

it. Similarly though P.W.1 stated that appellant P.K. Choudhury

forcibly poured liquor in his mouth as well as in the mouth of the

deceased but the query made to the doctor (P.W.37) has been

answered in Ext.51 which indicates that no poison including

alcohol was detected in the stomach and other viscera of the

deceased. It is further contended that though P.W.1 stated that

appellant P.K. Choudhury assaulted the deceased with a lathi
138

from head to feet but no injury was noticed on the head of the

deceased and therefore, the post mortem report negatives the

evidence of P.W.1.

Though there is evidence that in the afternoon,

taking puri, halua and raw tea, the deceased left his house for

the police station but there is no evidence that prior to that he

had not taken any rice or vegetables. Therefore, it cannot be

ruled out that the deceased had not taken rice and vegetables at

all on the date of occurrence. No question at all were asked to

P.W.7, the wife of the deceased as to whether she had given the

deceased rice and vegetables at all on the date of occurrence or

not. The contention of the learned counsel for the appellants that

the deceased came to police station after taking dinner and in

the dinner he had taken rice and vegetables which were found

from his stomach during post mortem examination is a

hypothetical argument. Law is well settled that medical evidence

is only an evidence of opinion and is hardly decisive. The doctor

has not clarified as to what was the extent of undigested food in

the stomach of the deceased. The process of digestion depends

upon the digestive power of an individual and varies from an

individual to an individual. It also depends upon the type and

amount of food taken. The period of digestion is different for
139

different types of food (Ref.: Maniram -Vrs.- State of

Rajasthan, A.I.R. 1993 S.C. 2453). In Taylor's Principles

and Practice of Medical Jurisprudence (11th Ed.), it is

observed that the rate of digestion varies in different persons

and according to the functional efficiency of gastric mucosa; that

the gastric process does not cease at once after death and can

continue after death also. In Modi's Medical Jurisprudence

(25th Edition), it is observed that the rate of emptying of

stomach varies in a healthy person depending upon consistency

of food, motility of stomach, osmotic pressure of stomach

contents, quality of food in duodenum, surroundings where food

was taken, emotional factors and residual variations and it varies

from 2.5 to 6 hours. Meals containing carbohydrates generally

leave the stomach early while that containing protein leaves

later. Fatty food delays emptying time and liquids leave the

stomach immediately.

Though an argument was advanced that since puri

and halua were not found in the stomach of the deceased, it

falsifies that the deceased took such food items, in my humble

view, as there is no evidence about the quantity of such food

items taken by the deceased while leaving his house and when it

is the prosecution case that death of the deceased took place
140

after midnight, therefore, the complete digestion of such food

items cannot be ruled out.

Similarly though P.W.1 stated that appellant P.K.

Choudhury poured liquor in the mouth of the deceased, there is

no evidence that what were the quantity of such liquor and

whether the deceased consumed the alcohol or not. Moreover,

there is no evidence that what was poured into the mouth of the

deceased was liquor inasmuch as no bottle of liquor was seized.

It is already discussed that so far as the assault on

the head of the deceased with a lathi by appellant P.K.

Choudhury appears to be an exaggerated version as it does not

get corroboration from the post mortem report.

Therefore, the contention of the learned counsel for

the appellants that the post mortem report findings completely

negatives the evidence of P.W.1 is not acceptable.

K. Finding of blood stain on the floor of police station by

Scientific Officer:

It is contended by the learned counsel for the

appellants that when P.W.3, the sweeper of Purighat police

station washed the floor of the police station in the morning as

usual on the next day of occurrence, how the Scientific Officer
141

(P.W.2) who visited the police station during the midnight on

05.05.1989 could notice bloodstain on the floor.

P.W.3 has not supported the prosecution case and he

resiled from his previous statement made before the I.O. to the

effect that he had seen vomiting substance and bloodstain inside

the police station and washed it with water. The Scientific Officer

(P.W.2) not only noticed bloodstain on different articles produced

by the investigating officer and in Thana Jeep (which was not

washed by P.W.3) but also collected bloodstain earth from the

cemented floor of the rooms of the police station. The samples

so collected by P.W.2 from the floor of the police station were

marked as Exts. E, F and G and on chemical analysis, bloodstains

were detected in it as per C.E. report Ext.60 and it was also

found to be human blood though the blood group could not be

detected.

It is common knowledge that if there is extensive

bloodstain on the cemented floor which had remained for few

hours, it cannot be cleanly removed by simply washing the floor

with water. Application of detergent mixture and treatment with

hydrogen peroxide can make clean removal of the bloodstain

from the cemented floor. There is no evidence of P.W.3 applying

detergent mixture or treating the floor by using hydrogen
142

peroxide. Therefore, there is nothing to doubt about noticing

bloodstain by the Scientific Officer on the cemented floor of the

police station even after washing.

11. After carefully dealing with various contentions raised

by the learned counsel for the respective parties, I am of the

view that those part of evidence of P.W.1 which is consistent

with his version in the first information report, his previous

statement before the investigating officer and other surrounding

circumstances and gets support from medical evidence can be

safely acted upon after adopting the separation of grain from the

chaff theory.

It has already been held that the defence plea

relating to the assault on the deceased on Kathajori river

embankment on 04.05.1985 at about 9.00 p.m. by some

unknown persons is not acceptable. Similarly, it has already

been held that the deceased had not sustained any injury on his

person when he arrived at Purighat police station along with

P.W.1 on 04.05.1985 at about 7.30 p.m. The ante mortem

injuries noticed on the person of the deceased as per post

mortem report were caused to the deceased in Purighat police

station during his stay from 7.30 p.m. till past midnight on

04/05.05.1985 and the evidence of the Scientific Officer and
143

chemical examination report also corroborate that the spot of

assault was the police station and not any river embankment and

the appellants were the authors of those injuries.

12. Now, the question comes for consideration is whether

the conviction of the appellants under various offences as was

held by the learned trial Court is sustainable.

Section 304 Part-II/34 of the Indian Penal Code:

The charge was framed under section 304/34 of the

Indian Penal Code, however, the learned trial Court found both

the appellants guilty under section 304 Part-II read with section

34 of the Indian Penal Code.

The learned trial Court has observed that there was

nexus between the death of the deceased and the act of the

appellants in subjecting him to long detention throughout the

night and in mercilessly beating him and that the appellants did

it in furtherance of their common intention. It was further held

that the facts of the case disclosed that there might not be an

intention to cause such bodily injury as was likely to cause death

but the facts disclosed that the appellants knew that their act

would be likely to cause death.
144

The evidence of the doctor (P.W.37) who conducted

autopsy indicate that the deceased had sustained eleven

external injuries, out of which the injuries nos. 1 to 9 were

opined to be ante mortem in nature. The opinion on injuries

nos.10 and 11 were kept reserved, however in Ext.51, the

doctor opined that those two injuries were not ante mortem

injuries and those could be due to post mortem hypostasis

stimulating injuries which was evident from histopathological

study. Except injury no.5 which is a lacerated wound below the

left knee in front without involving the bone, the other ante

mortem injuries were either abrasions or bruises. The abrasions

or bruises noticed were on lower part of right thigh, right leg

below the right knee, medial aspect of right leg above the medial

malleolus, left leg below the left knee, left buttock, left elbow

joint on the posterior aspect, left thigh and on right hand from

above the elbow to the dorsum of palm. Thus all the injuries

except one on the right hand were below the waist line of the

deceased.

The doctor found undigested and regurgitated

vomitus (rice and vegetable residues) present in the oropharynx

and larynx blocking the air passage. Trachea showed oedema of

the walls and food particles inside it. Mouth contained semi
145

digested food matters like rice, vegetable residues inside it. The

doctor also noticed that the heart weight was 550 grams

enlarged with deposit of fat over the heart. The left ventricle was

thicken, bicuspid vulve admitted three fingers. Bicuspid and

aortic vulves were thicken with nodules at its margin which was

attached to the chordae tendineae. Heart chambers were found

containing blood clots which were thicken fat appearance. The

ascending aorta, carotid arteries, abdominal aorta showed

atheromatous plaque which were marked at the junctions. There

was obstruction of the left coronary artery. The muscle of left

ventricle was contested and showed areas of hyperemia.

The doctor opined that all the injuries sustained by

the deceased were simple in nature and not fatal in ordinary

course of nature. According to him, death was proximately due

to asphyxia resulting from chocking brought about by

regurgitated stomach contents which aspirated into respiratory

passage. The doctor found evidence of atherosclerotic changes in

the aorta, vessels of neck and brain coronaries with blocking of

left coronary artery. Hypertrophic enlargement of heart with

dilatation of mitral vulvular opening and thickening mitral and

aortic cusps was found. He noticed marked congestion

associated with massive edema of both lungs and also massive
146

cerebral edema with congestion of cerebral vessels. According to

the doctor, these features could have contributed to the cause of

death of the deceased. In his report Ext.51, the doctor opined

that the immediate cause of death was asphyxia due to the

obstruction of the windpipe by the regurgitated food materials,

which is otherwise known as choking. He further opined that the

deceased was having previous heart trouble owing to high blood

pressure associated with obesity (fattiness). The signs observed

at post mortem examination were suggestive of the fact that the

'choking' could have precipitated by the failing heart. He further

opined that none of the injuries or all the injuries taken together

could not have been directly fatal in ordinary course of nature.

However, he opined that long detention associated with the

injuries as mentioned in the post mortem report could have

precipitated in failure of the already diseased heart resulting in

death as a matter of consequence. The doctor opined in his

report Ext.45 that anxiety, excitement, fear, emotional tension,

physical and mental stress can precipitate the failure of the heart

which was already diseased to the extent as described in the

post mortem report. He further opined in that report that long

detention associated with multiple injuries can induce physical

and emotional stress.
147

In the cross-examination, the doctor has clarified

that the weight of the heart of the deceased was abnormal and it

was a diseased one and diseased heart can accelerate heart

attack and sudden death. He further stated that all the external

injuries were superficial in nature and the superficial external

injuries by themselves are not fatal and cannot precipitate death.

The doctor opined that injuries nos. 1 to 9 except injury no.6

(which was a Grazed abrasion 1/2" X 1/2" on the left buttock)

can be caused by M.O.IV and M.O.VII. Grazed abrasion is caused

by relative movement or rubbing of skin against a rough surface.

In order to sustain conviction either under section

304 Part I or 304 Part II of the Indian Penal Code, the

prosecution is first required to prove it to be a case of culpable

homicide and then such culpable homicide does not amount to

murder. Culpable homicide is murder, if it comes within any of

the four clauses as enumerated under section 300 of the Indian

Penal Code. Culpable homicide is not murder, if it comes within

any of the five exceptions as enumerated under section 300 of

the Indian Penal Code. In order to be called a case as murder, it

needs to be culpable homicide in the first place. All murders are

culpable homicides, but the vice versa may not true in all cases.

'Culpable homicide' is defined under section 299 of the Indian

Penal Code. According to section 299, whoever causes death by
148

doing an act (i) with the intention of causing death, or (ii) with

the intention of causing such bodily injury as is likely to cause

death, or (iii) with the knowledge that he is likely by such act to

cause death, commits the offence of 'culpable homicide'. The

Explanation 1 to section 299 which is important in the case in

hand states that a person who causes bodily injury to another

who is labouring under a disorder, disease or bodily infirmity,

and thereby accelerates the death of that other, shall be deemed

to have caused his death. Illustration (b) given under section

300 of the Indian Penal Code after four clauses defining in which

case culpable homicide is murder, is very important. It states,

inter alia, that if A, not knowing that Z was labouring under any

disease, gives him such a blow as would not in the ordinary

course of nature kill a person in a sound state of health, here A,

although he may intend to cause bodily injury, is not guilty of

murder, if he did not intend to cause death, or such bodily injury

as in the ordinary course of nature would cause death

In the case of Sellappan -Vrs.- State of Tamil

Nadu reported in (2007)15 Supreme Court Cases 327, it is

held as follows:-

"13. Clause (b) of Section 299 corresponds with
clauses (2) and (3) of Section 300. The
distinguishing feature of the mens rea requisite
under clause (2) is the knowledge possessed by
149

the offender regarding the particular victim
being in such a peculiar condition or state of
health that the internal harm caused to him is
likely to be fatal, notwithstanding the fact that
such harm would not in the ordinary way of
nature be sufficient to cause death of a person
in normal health or condition. It is noteworthy
that the 'intention to cause death' is not an
essential requirement of clause (2). Only the
intention of causing the bodily injury coupled
with the offender's knowledge of the likelihood
of such injury causing the death of the particular
victim, is sufficient to bring the killing within the
ambit of this clause. This aspect of clause (2) is
borne out by illustration (b) appended to Section
300.
12. Clause (b) of Section 299 does not postulate
any such knowledge on the part of the offender.
Instances of cases falling under clause (2) of
Section 300 can be where the assailant causes
death by a fist blow intentionally given knowing
that the victim is suffering from an enlarged
liver, or enlarged spleen or diseased heart and
such blow is likely to cause death of that
particular person as a result of the rupture of
the liver, or spleen or the failure of the heart, as
the case may be. If the assailant had no such
knowledge about the disease or special frailty of
the victim, nor an intention to cause death or
bodily injury sufficient in the ordinary course of
150

nature to cause death, the offence will not be
murder, even if the injury which caused the
death, was intentionally given. In clause (3) of
Section 300, instead of the words 'likely to cause
death' occurring in the corresponding clause (b)
of Section 299, the words 'sufficient in the
ordinary course of nature to cause death' have
been used. Obviously, the distinction lies
between a bodily injury likely to cause death and
a bodily injury sufficient in the ordinary course
of nature to cause death. The distinction is fine
but real and if overlooked, may result in
miscarriage of justice. The difference between
clause (b) of Section 299 and clause (3) of
Section 300 is one of the degree of probability of
death resulting from the intended bodily injury.
To put it more broadly, it is the degree of
probability of death which determines whether a
culpable homicide is of the gravest, medium or
the lowest degree. The word 'likely' in clause (b)
of Section 299 conveys the sense of probable as
distinguished from a mere possibility. The words
'bodily injury....sufficient in the ordinary course
of nature to cause death' mean that death will
be the "most probable" result of the injury,
having regard to the ordinary course of nature."

While analysing section 304 of the Indian Penal Code,

the Hon'ble Supreme Court in the case of Mahadev Prasad
151

Kaushik -Vrs.- State of U.P. reported in (2008)14 Supreme

Court Cases 479 held as follows:-

"20....A plain reading of the above section
makes it clear that it is in two parts. The first
part of the section is generally referred to as
Section 304 Part I, whereas the second part as
Section 304 Part II. The first part applies where
the accused causes bodily injury to the victim
with intention to cause death; or with
intention to cause such bodily injury as is likely
to cause death. Part II, on the other hand,
comes into play when death is caused by doing
an act with knowledge that it is likely to cause
death, but without any intention to cause death
or to cause such bodily injury as is likely to
cause death.

xx xx xx xx

22. Before section 304 can be invoked, the
following ingredients must be satisfied:

(i) the death of the person must have been
caused;

(ii) such death must have been caused by the
act of the accused by causing bodily injury;

(iii) there must be an intention on the part of
the accused
(a) to cause death; or

(b) to cause such bodily injury which is
likely to cause death (Part I); or
152

(iv) there must be knowledge on the part of
the accused that the bodily injury is such that it
is likely to cause death (Part II).

In view of the evidence of P.W.1 and other

surrounding circumstances and corroborating medical evidence, I

am of the considered view that the prosecution has successfully

proved that the appellants were responsible for causing the

external ante mortem injuries as noticed on the deceased. In the

case in hand, there is no evidence that the appellants had any

knowledge that the deceased was labouring under any disease

and that weight of his heart was abnormal and it was a diseased

one and that he had serious lungs problem. The external injuries

were superficial in nature and not fatal in ordinary course of

nature. None of the injuries either individually or collectively

were fatal in ordinary course of nature. All the injuries were on

the non-vital parts of the body and those were mainly abrasions

or bruises. The finding of the learned trial Court that it was a

case of long detention of the deceased throughout the night is

factually incorrect as the deceased was not detained throughout

the night but taken to hospital past midnight. The detention was

stated to be on account of his involvement in a case instituted at

the instance of P.W.13 where he was shown to be arrested. The

nature of injuries sustained by the deceased does not indicate it
153

to be a case of merciless beating as observed by the learned trial

Court. Of course, the deceased could have been taken to the

hospital earlier without waiting for his health condition getting

worse.

In view of the aforesaid discussions, I am of the

humble view that the conviction of the appellants under section

304 Part II/34 of the Indian Penal Code is not sustainable in the

eye of law, which is accordingly set aside and instead the

appellants are found guilty of offence under section 324/34 of

the Indian Penal Code.

Section 323/34 of the Indian Penal Code:

The charge under section 323/34 of the Indian Penal

Code was framed against the appellants for voluntarily causing

hurt to P.W.1. As already discussed, P.W.1 exaggerated the

number of blows given to him by lathi by appellant P.K.

Choudhury but right from the F.I.R., P.W.1 has stated about two

lathi blows given to him on his hand by the said appellant.

Similarly P.W.1 exaggerated the number of kicks given to him by

appellant Pravat Mohanty during his evidence in Court in

comparison to his previous statement. The doctor (P.W.10)

noticed one swelling on the left wrist joint and one abrasion on

the left leg of P.W.1 and both the injuries have been opined to
154

be simple in nature. These exaggerations in the number of lathi

blows or kicks cannot be a factor to disbelieve the participation

of the appellants in the assault of P.W.1.

Therefore, in my humble view, the learned trial Court

rightly convicted the appellants under section 323/34 of the

Indian Penal code.

Section 342/34 of the Indian Penal Code:

The charge under section 342/34 of the Indian Penal

Code was framed against the appellants for wrongfully confining

the deceased and P.W.1 at Purighat police station. According to

the prosecution case, the deceased and P.W.1 were not arrested

in connection with Purighat/Lalbag P.S. Case No.269/1985 but

wrongfully detained. The learned trial Court held that the

deceased and P.W.1 were not arrested and connected parts of

case diary in Purighat/Lalbag P.S. Case No.269/1985 were

fabricated to falsely show that they were arrested. It is not in

dispute that in the case diary of Purighat/Lalbag P.S. Case

No.269/85 dated 04.05.1985, appellant P.K. Choudhury (who

was the I.O. of that case) has reflected about arrest of the

deceased and P.W.1. The said entry was proved by P.W.38 and it

is marked as Ext.52. The learned trial Court doubted the

participation of the deceased and P.W.1 in the said case as their
155

names were not reflected in the F.I.R. of the said case by

P.W.13, who was the informant of that case.

In my view, since the learned trial Court was not

trying Purighat/Lalbag P.S. Case No.269/1985, therefore, such

observation was not justified. A person can be made as an

accused and arrested in connection with a case, even if his name

does not finds place in the F.I.R. but during course of

investigation, materials come against him. Since Para Dei

(P.W.15) examined during investigation of the said case and

stated to have implicated the deceased and P.W.1 in her

statement recorded in that case by appellant P.K. Choudhury,

stated during her evidence in the case in hand not to have given

any statement in connection with Purighat/Lalbag P.S. Case

no.269/1985, the learned trial Court observed that such a

statement is shown to have falsely recorded. I have already held

that the finding of the learned trial Court that P.W.15 falsifies her

alleged statement in the case diary of Purighat/Lalbag P.S. Case

No.269/1985 is not acceptable. A witness may resile from his

previous statement during trial of the case and may say that he

was not examined by police, in the event of which the

prosecution can take step in consonance with 154 of the

Evidence Act and the evidenciary value of such statement is to
156

adjudicated in accordance with law. The learned trial Court held

that appellant P.K. Choudhury should have allowed the deceased

to go on bail or P.R. bond in that case. There is no justification

for such observation. One of the offences in Purighat/Lalbag P.S.

Case No.269/1985 was under section 452 of the Indian Penal

Code which carries maximum punishment upto seven years and

also imposition of fine and it is a non-bailable offence. Whether

appellant P.K. Choudhury exercised his discretion improperly in

not releasing the deceased on bail in Purighat/Lalbag P.S. Case

No.269/1985 after his arrest was definitely not the subject

matter of adjudication before the learned trial Court. Merely

because the time and place of arrest of the deceased and P.W.1

was not shown in Ext.52, is not a ground to disbelieve their

arrest. The appellant in the accused statement has stated that

such omission in Ext.52 in not reflecting the time and place of

arrest might be a mistake. I am of the humble view that on

04.05.1985 the deceased and P.W.1 were arrested by appellant

P.K. Choudhury in connection with Purighat/Lalbag P.S. Case

No.269/1985 in Purighat police station and both of them were

detained there and as such it cannot be said to be a case of

wrongful confinement of the deceased and P.W.1 at Purighat

police station without their arrest.
157

Therefore, the conviction of the appellants under

section 342/34 of the Indian Penal Code is hereby set aside.

Section 471/34 of the Indian Penal Code:

The charge under section 471/34 of the Indian Penal

Code was framed against the appellants for fraudulently or

dishonestly using the document purporting to be first information

report registered as Purighat/Lalbag P.S. Case No.272/1985 and

seizure lists which they knew or had reason to believe as forged

documents.

While discussing this charge in para 78 of the

judgment, the learned trial Court held that C.D. in

Purighat/Lalbag P.S. Case No. 269/1985 was fabricated so far as

it related to the alleged arrest of the deceased and P.W.1 and

that the appellant P.K. Choudhury, the I.O. of that case

committed forgery and appellant Pravat Mohanty is also

responsible for it. This observation is contrary to the charge

framed for this offence which was specific relating to

Purighat/Lalbag P.S. Case No.272/1985 and therefore, the

learned trial Court was not justified in considering the case

records of Purighat/Lalbag P.S. Case No. 269/1985 in connection

with this charge.
158

It was further held by the learned trial Court that the

so-called F.I.R., seizure lists and the connected case diaries

including examination of witnesses, inquest etc. in

Purighat/Lalbag P.S. Case No.272/1985 were also forged and

that the appellants used such forged documents as genuine

documents, though to their knowledge the same were forged and

that they did so in furtherance of their common intention to

falsely explain wrongful detention of the deceased and P.W.1 and

to explain the injuries in their bodies. The finding on the basis of

considering the case diaries including examination of witnesses,

inquest etc. in Purighat/Lalbag P.S. Case No.272/1985 was not

justified as the charge was specific relating to the first

information report and seizure lists.

The essential ingredients of offence under section

471 of the Indian Penal Code are: (i) fraudulent or dishonest use

of document as genuine, and (ii) knowledge or reasonable belief

on the part of person using the document that it is a forged one.

Thus if a document although not genuine, and a person knowing

it not to be genuine or having reasons to believe that it is not a

genuine but a forged document, uses it and that also

fraudulently or dishonestly then it comes within the mischief of

section 471 of the Indian Penal Code. 'Fraudulently' as per

section 25 of the Indian Penal Code means to do a thing with
159

intent to defraud but not otherwise. It is not necessary that the

'use' should be in a particular manner. If it is known to be not a

genuine document and it is used, it is sufficient. It is fairly

settled that the meaning of the term "use" mentioned in the

section is not restricted to the filling of such documents as

evidence in a Court. It is sufficient that it is used in order that it

may ultimately appear in evidence or used dishonestly or

fraudulently. The nature of user is not material. Whether the

accused knew or had reason to believe the document in question

to be a forged has to be adjudicated on the basis of materials

and the finding recorded in that regard is essentially factual.

I have already held the appellants prepared a false

first information report which carries the forged signature of the

deceased vide Ext.A and used it as genuine one by registering as

Purighat/Lalbag P.S. Case No.272/1985 on 04.05.1985 at 10

p.m. Appellant Pravat Mohanty registered it and as per his

direction, appellant P.K. Choudhury shown to have investigated

the case. I have also held that there are some irregular features

in the preparation of seizure list Ext.23/3 and the contents of

seizure list Ext.42 are false.
160

Therefore, in my humble view, the learned trial Court

rightly convicted the appellants under section 471/34 of the

Indian Penal Code.

13. In the result, the impugned judgment and order of

conviction of both the appellants for the offences under sections

304 Part-II/34 and 342/34 of the Indian Penal code are hereby

set aside, however their conviction under sections 323/34 and

471/34 of the Indian Penal Code are upheld. Both the appellants

are also convicted under section 324/34 of the Indian Penal

Code.

Now, it is to be carefully examined taking into

consideration the facts and circumstances of the case as to what

sentence is required to be imposed upon the appellants. One of

the prime objectives of criminal law is the imposition of

adequate, just, proportionate punishment which is

commensurate with the gravity and nature of the crime and

manner in which the offence is committed. The quantum of

sentence imposed should not shock the common man. It should

reflect the public abhorrence of the crime. The Court has a duty

to protect and promote public interest and build up public

confidence in efficacy of rule of law.
161

The appellant Pravat Mohanty is now aged about 76

years and appellant P.K. Choudhury is now aged about 75 years.

The occurrence in question took place thirty five years back and

the appellants must have suffered immense mental agony and

pain facing criminal proceeding for a considerable period.

Keeping all the aforesaid factors in view, I sentence both the

appellants to undergo simple imprisonment for one month for

the offence under section 323/34 of the Indian Penal Code and

simple imprisonment for three months for the offence under

section 471/34 of the Indian Penal Code. Both the appellants are

also sentenced to simple imprisonment for one year for the

offence under section 324/34 of the Indian Penal Code. All the

substantive sentences shall run concurrently. The appellants are

on bail. Their bail bonds shall stand cancelled and they are

directed to surrender before the learned trial Court within two

weeks from today for undergoing the remaining period of

sentence.

14. Custodial violence on a person which may sometimes

lead to his death is abhorrent and not acceptable in a civilised

society and it is a crime against humanity and a clear violation of

a person's rights under Article 21 of the Constitution of India.

Police excesses and maltreatment of detainees, under trial

prisoners or suspects tarnishes the image of any civilised nation.
162

Stern measures are required to be taken to check the malady

against those police officials who consider themselves to be

above the law and bring disrepute to their department, otherwise

the foundations of the criminal justice delivery system would be

shaken and common man may lose faith in the judiciary. Act of

custodial violence reflects tragic state of affairs indicating the

apparent disdain of the State to the life and liberty of individuals,

particularly those in custody and relief could be moulded by

granting compensation to the next of kin of the deceased. The

Hon'ble Supreme Court, in the case of Nilabati Behera (Smt.)

@ Lalita Behera -Vrs.- State of Orissa and others reported

in 1993 (2) Supreme Court cases 746 proceeded to take

view that even convicts, prisoners and undertrials cannot be

denuded of their fundamental rights under Article 21 of the

Constitution of India and once an incumbent is taken into

custody and there are injuries on his body, then State will have

to explain, as to how he sustained the injuries, and

compensation can be awarded under public law remedy.

Keeping in mind the age and earning capability of the

deceased as he was serving as Jamadar in Cuttack Municipality, I

am of the considered opinion that in the ends of justice, it would

be just and proper to grant compensation, amounting to

Rs.3,00,000/-(rupees three lakhs) in favour of the legal
163

representative(s) of the deceased. Accordingly, I direct the State

Government to pay Rs.3,00,000/-(rupees three lakhs) in favour

of the legal representative(s) of the deceased within a period of

one month from the date of this judgment.

15. Accordingly, the criminal appeals are partly allowed.

Lower Court records with a copy of this judgment be sent down

to the learned trial Court forthwith for information.

Before parting with this case, I would like to record

my deep appreciation for the valuable assistance rendered by

the learned counsel for the appellants and learned counsel for

the State in taking up the hearing of these thirty two year old

criminal appeals adopting the mode of virtual hearing.

..........................
S.K. Sahoo, J.

Orissa High Court, Cuttack The 9th November 2020/Pravakar/Sisir/RKM

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