Orissa High Court
Debi Prasad Panda And 9 Ors. And Dambaru ... vs State Of Orissa on 6 April, 2002
Equivalent citations: 2003CRILJ105, 2002(I)OLR618
Author: M. Papanna
Bench: B.P. Das, M. Papanna
JUDGMENT M. Papanna, J.
1. Common judgment dated 29.11.1994 of the learned Additional Sessions Judge, Koraput-Jeypore passed in S. C. No. 15 of 1994 and S. C. No. 24/94 convicting appellant No. 1 Debi Prasad Panda and appellant No. 6 Manoj Kumar Padhi, under Sections 147, 148, 302 of the Indian Penal Code read with Section 149 of the Indian Penal Code and sentencing each of them to undergo rigorous imprisonment for one year on each count and life imprisonment respectively, thereunder and further convicting the other appellants, namely, Laxmi Narayan Sahu, Prabir Barik, K. Dharma Acharya, Arun Kumar Dash, Ram Prasad Gantayat, Kali Naik, Sarat Chandra Sahu and Dambaru Muduli under Section 147 and 302 read with Section 149 of the Indian Penal Code and sentencing each of them to undergo rigorous imprisonment for one year and life imprisonment, respectively, thereunder, with a direction to run the above sentences concurrently, is under challenge in these two Criminal Appeals which were heard analogously and are being disposed of by this common judgment.
2. The accused persons were put upon trial before the learned Additional Sessions Judge, Koraput-Jeypore on the accusation as unfolded from F.I.R. (Ext. 1) Lodged by Kali Prasad Rath (P.W. 1) that on 9.5.1993 at about 5.40 P.M. while his brother Gouri Prasad Rath (deceased) was going from his house to his employer, all the accused persons, namely, Debi Prasad Panda, Babuli Sahu, Kadama Achari, Prabir Barik, Manoj Kumar Padhi, Sarat Sahu, Kali Naik, Dambaru Naik, Sana Gantayat and Bulu were assaulting and dragging him from near the Masjid. At that juncture the informant, who was going to the market saw bleeding from the neck of his brother to whom, inspite of his request to leave, they dragged to Madala street to kill. He followed them. At that time, when accused Prabir Barik pulled his left leg, one of his shoes was slipped near Bagha Bhandar Chhak. Thereafter, the accused persons took the deceased towards Madala Sahi and near Municipality Gymnasium in front of house of one Rama Paik, accused persons Debi Prasad Panda, Kadama Achari, Babuli Sahu, Prabir Barik, Manoj Padhi and Sana Gantayat cut his neck by means of a sword, as a result of which he died there. It is also revealed from the F.I.R. (Ext. 1) that at that time, the other accused persons were armed with knives, swords etc. and the incident was witnessed by Chaitanya Patra, Sarat Panigrahi, Rama Chandra Panigrahi, Surya Narayan Parichha and many others of the street. The inhabitants of the street and shop-keepers entered inside their houses out of fear seeing the activities of the accused persons, who showing their sword and knives threatened them to kill, if they would speak against them. On the report of P.W. 1, to the above effect, Jeypore Town P.S. Case No. 32 of 1993 was registered by the I.I.C. of the said P.S., who directed Shri J. M. Patel, S.I. of Police to take up investigation during which the latter visited the spot, examined the witnesses, held inquest over the dead body of the deceased, sent the same for autopsy and after completing investigation of the case laid charge sheet against all the accused persons.
3. The accused persons, who pleaded innocence of the accusation, stated further during their examination under Section 313 Cr.P.C. that they have been roped falsely in this case by the witnesses, who are enemtcally disposed of towards accused Debi Prasad Panda.
4. The prosecution, for proof of the charges against the accused persons, adduced evidence by examining altogether eleven witnesses of whom P.Ws. 1, 4 and 6 are no other than the brothers of the deceased whereas P.W. 2 in his father; P.W. 3 is a witness to inquest; P.W. 5 is a witness to the seizure of wearing apparels of the accused Kali Nayak as well as the wearing apparels of the deceased; P.Ws. 7, 8 and 9 are the hostile witnesses; P.W. 10 is the Doctor, who examined accused Debi Prasad on the following day whereas P.W. 11 is the I.O., who laid charge sheet against the accused persons. It may be mentioned here that one Lady Doctor who conducted autopsy over the dead body of the deceased has not been examined in this case for which the post-mortem report issued by her has been marked as Ext. 13 on admission by the accused persons.
5. On the other hand, defence examined two witnesses in support of the stand taken by the accused persons during trial.
6. The learned trial Judge having considered the evidence on record, convicted the accused persons and sentenced them as stated above.
7. The learned counsel appearing for the appellants assailted the impugned judgment of the learned trial Judge on several grounds. According to them the learned trial Judge has committed gross error in convicting the accused persons relying on the testimony of P.W. 4 who was admittedly inimically disposed of towards accused No. 1 (Debi Prasad Panda) and that apart, his evidence being highly discrepant inconsistent and unreliable should not have been relied upon by the learned trial Judge while convicting the appellants. They have further urged that basing on such evidence of P.W. 4, the other accused persons ought not to have been convicted in the case. Moreover, as per their contentions, reliance cannot be placed on the evidence of P.W. 2, who is not only interested in the prosecution case being the father of the deceased, but also he cannot be treated as an eye witness to the occurrence particularly when his evidence is found to be highly discrepant.
8. It is also contended on behalf of the appellants that appellant No. 1 had received injuries caused by the deceased for which he is said to have exercised his right of private defence which is natural as provided under law. That apart, evidence of witnesses, who are interested in the prosecution case, having been relied upon by the trial judge in convicting the appellants the same cannot be sustained in law to which the learned Additional Government Advocate for the State refuted stating that the prosecution case has been well established by the direct evidence of witnesses and even if they are relations of the deceased, their evidence cannot be brushed aside in a case of heinous crime of murder committed by the appellants and that being so he has supported the conviction and sentence impugned before us.
9. The fact that the deceased died a homicidal death has not be disputed by the defence. But the learned counsel appearing for the appellants have urged that the post-mortem report (Ext. 13) cannot be accepted for being not proved legally by the Doctor who conducted autopsy over the dead body of the deceased particularly when she has been with-held from the witness box. A perusal of . the post-mortem report (Ext. 13) shows that the deceased sustained injuries as below:
(i) One gaping spindle shaped incised wound 4" x 2" x 3" obliquely placed in front of the neck 1/2" below the adam's apple extending from the anterior border of the left sternomastoid downwards to the right side of the neck cutting completely treachea right common carotid artery, right internal and external jugular vein and sternomastoid muscle;
(ii) Bruise 6" x 1/4" obliquely placed on right arm 2" below the shoulder joint;
(iii) Bruise 2" x 1/2" over the right shoulder;
(iv) Bruise 6" x 1/4" obliquely placed on the lateral side of the right thigh 4" below hip joint;
(v) Abrasion 1/2" x 1/2" on the flexa surface of the left wrist.
10. We have perused the post-mortem report (Ext. 13) which contains opinion of the Doctor, who conducted autopsy over the dead body of the deceased to the effect that the death of the deceased was due to hypovolumic shock resulting from excessive bleeding following injuries to major vessels to the right side of the neck by sharp cutting weapon. Basing on Ext. 13, the learned trial Judge came to hold that the injuries sustained by the deceased were ante mortem in nature and the deceased died a homicidal death which we affirm, the same having been not challenged by the defence either before the learned trial Judge during trial or before us by the learned counsel for the appellants in course of hearing of the appeals. Whether the post-mortem report (Ext. 13) can be relied upon is the bone of contention raised at the Bar, particularly when the Doctor, who conducted autopsy over the dead body of the deceased, has been withheld from the witness box by the prosecution. In this regard, we are convinced that in spite of the summons issued to the concerned Doctor and letters written to the Director of Health Services, Bhubaneswar and the C.D.M.O., Koraput, attendance of the said Doctor could not be procured for which on the consent of the learned counsel for both the parties without there being any prejudice caused to the accused, the post-mortem report was marked as Ext. 13 which has been admitted into evidence under Section 32 of the Indian Evidence Act in support of which reliance can be placed on the ruling in the case of Prithiv Chand v. State of Himachal Pradesh reported in AIR 1989 SC 702, wherein their Lordships laid the law that Section 32 of the Evidence Act provides that when a statement written or verbal is made by a person in discharge of professional duty and his attendance cannot be procured without an amount of delay, the same is relevant and admissible in evidence. Applying this principles of law to the present case, we hold that even if the Medical Officer conducting autopsy over the dead body of the deceased could not be examined for the reasons recorded above, the post-mortem report (Ext. 13) can be admitted into evidence under Section 32 of the Indian Evidence Act and the same cannot be brushed aside merely for the reasons that the Doctor conducting autopsy over the dead body of the deceased has not been examined.
11. The most pertinent question that poses before us while adjudicating the appeals is, whether the accused persons, who are the appellants herein, have committed the offences with which they have been charged in furtherance of their common object.
12. To start with acceptability of evidence of P.W. 1, it is seen that on 9.5.1993 at 5.30 P.M. while he was going from his house towards Jeypore town daily market, on the way near Masjid he noticed that his brother Gouri Prasad Rath was lying inside the Municipality drain and accused Debi Prasad Panda (Tutu) was giving kicks to him. After parking his scooter he caught hold of accused Debi Prasad Panda. At that time deceased came out from the drain to the road. He saw bleeding from his mouth. He requested accused Debi Prasad Panda, Prabir, Kadama and Laxminarayan to leave the deceased but accused Laxminarayan, Prabir and Kadama dragged the deceased and took him towards Madala Sahi. Then accused Debi Prasad Panda gave pushes to him from his back. While he was being taken towards Madala Sahi by the accused persons, accused Debi Prasad brought a piece of fire wood from the hotel of Ishwar Rao at Ganganagar Chhak and attempted to give a blow on his head but the blow hit on his left shoulder when he bent his head towards right side. While the accused persons above named were dragging the deceased along the street, other six accused persons being armed with swords, tangi, Gurkha knife joined them near Municipal High School No. 1. Accused Manoj Padhi, Sana Gantayat, Dambaru Nayak and Bulu were armed with swords whereas accused Sarat Sahu was armed with tangi white accused Kali was holding a Gurkha knife. Accused Debi Prasad took the knife from Kali. Accused Laxminarayan took the sword from accused Sana Gantayat. Accused Prabir took the sword from accused Dambaru Nayak. His evidence in the Court further shows that getting information about the assault, his elder brother Debi Prasad Rath came near the High School. Both of them requested the accused persons to leave the deceased without assaulting him but all the accused persons took the deceased towards the house of pama Nayak in Madala Sahi where accused Sarat Sahu dealt an axe blow causing bleeding injury near the mouth and chin of the deceased. Accused Manoj Padhi dealt a blow by means of a sword on the right shoulder of the deceased. Accused Babuli Sahu dealt another blow by means of a sword on the right arm of the deceased. Accused Prabir Barik dealt a sword blow near the right wrist of his brother. Accused Babuli Sahu by means of a sword also assaulted on the right thigh and accused Prabir also dealt a sword blow on the right side buttock of the deceased. At that time accused Dambaru, Sana Gantayat and Kali caught hold of his brother and thereafter his brother fell down on the ground sustained several bleeding injuries on his body. After his brother fell down, accused Manoj stood on both of his legs and accused Debi Prasad saying 'Jay Shree Ram' cut the throat of his brother from right side, as a result of which he died then and there. The evidence of P.W. 1 further indicates that his elder brother Debi Prasad Rath put off his shirt and covered the face of his deceased brother with the same at the spot. Then he went to inform his father about the incident. At the same time, P.W. 1 himself went to Masjid and taking his scooter he went to Jeypore Town Police Station and reported the incident.
13. The above being sum and substance of prosecution case, now the most pertinent question regarding acceptability of testimony of P.W. 1 who set the criminal law into motion by lodging F.I.R. (Ext. 1) needs our careful examination and consideration while adjudicating the appeals preferred by as many as ten condemned persons. In a case of murder, as viewed by the Apex Court in the case of State of Punjab v. Sucheta Singh, 1993 Crl.L.R (SC) 399 the Court has to be satisfied not of the probabilities, but of the certainty beyond any reasonable doubt that the accused is guilty and the prosecution has to bring home the guilt to the accused by leading clear, cogent and consistent evidence which should be of unimpeachable character. It is of paramount importance for the Court to find out truth from falsehood, from evidence available on record in order to tender justice which is not only to be done but also it is seen to have been done, which being cardinal principle of law of justice, we are called upon to scan the evidence of P.W. 1 first. No doubt immediately after the occurrence, he lodged information in the Police Station claiming to have been all the ten accused persons dragging his deceased brother from Masjid Chhak and his request made to them to leave him because a cry in the wilderness, and instead they abused him in filthy language and told him further that they would kill him in the street and thereafter near Municipality Gymnasium in Madala Sahi in front of the house of Rama Paik, accused persons, namely, Debi Prasad, K. Dharma, Laxmi Narayan, Prabir, Manoj and Ram Prasad cut throat of his brother by a small sword, as a result he died then and there due to excessive bleeding, while the other accused persons were present at the spot being armed with knife and sword. This story of prosecution case as has been reflected in Ext. 1 was also told to the l.O. while recording his previous statement under Section 161 Cr.P.C. indicating that the said statement is nothing but verbatim reproduction of his version contained in the F.I.R. (Ext. 1) in which the informant has omitted all the salient facts of prosecution case as per his evidence in the court during trial. No-doubt F.I.R. is not the encyclopaedia of all the events that take place during the occurrence, but in the case at hand, the most important event such as infliction of injuries by each of the accused persons, weapon of offence used by them are neither being mentioned in the F.I.R. nor stated before the l.O. soon after the occurrence, nor the post mortem report (Ext. 13) indicates all the injuries said to have been caused on the person of the deceased by the accused persons by means of sword, knife etc. excepting the cut injury appearing on his neck probably caused by a sharp cutting weapon. In this regard, reliance can be placed on the decision reported in 1974 Crl. Law Reporter 36 (SC) Laxman and Ors. v. State of Maharastra wherein the Apex Court has taken the view that when there are omission in the F.I.R. as to the part played the accused and when later in the evidence before the trial court witnesses specify the acts of the accused persons, the accused persons will be entitled to the benefit of doubt. In 1998 SCC (Crl.) 1605 State of Rajasthan v. Rajendra Singh and 1986 (1) Crimes 675, Harihar Ray and Ors. v. State of Orissa, the Apex Court has laid down the law that omission amounts to contradiction creating serious doubt about the truthfulness of the witnesses particularly when they during the trial make material improvement to make their evidence acceptable. In such a case, it would be difficult to rely on such evidence.
14. In the case of Mahendra Singh v. State of Rajasthan reported in AIR 1989 SC 982, their Lordships of the Apex Court have taken the view that improvements made to suit the medical evidence corrode credibility of the prosecution version. In such a case when versions contained in the F. I.R. made by the informant are changed subsequently before the Trial Court while giving evidence to suit the medical evidence, the same should be treated as vulnerable. In the case at hand, evidence of P.W. 1 who claims to have seen the occurrence, suffers from material contradictions as his testimony regarding overtacts attributed to each of the accused persons does not find place in Ext. 1 nor they are made to the I.O. during investigation of the case. As a matter of fact, the overtacts of each of the accused persons attributed in detail in the FIR and the statements under Section 161 Cr.P.C. are totally different from his version given in the Court. In this case, material details as spoken to in the Court by P.W. 1 do not actually fit in with the actual happening on the spot. As such there is wide discrepancy between the scenario as described in the FIR as well as his statement under Section 161 Cr.P.C. and as stated in the Court and the same being quite contradictory from each other in all material particulars cannot be relied upon. Therefore, we are of the considered view that the evidence of P.W. 1 not only suffers from major material contradictions ad indicated above but also it appears to be full of exaggerations as well as embellishments of the incident thereby persuading us to hesitate to accept him as eye witness to the occurrence particularly when D.W. 1 by his evidence has successfully proved two documents, such as, tour diary (Ext. A) and T.A. Bill (Ext. B) of P.W. 1 for the month of May, 1993 as Village Forest Worker under the Social Forestry Department thereby indicating that on 9.5.1993 at 6 A.M. he had been to Jhaliaguda Nursery on official work and was back home at 6.30 P.M. by which time the alleged occurrence having been over, P.W. 1 is not only an eye witness but also he is highly interested in the prosecution case for which we disbelieve and discard his evidence completely from consideration.
15. Having carefully examined the judgment impugned before us juxtaposing with testimonies of P.Ws. 2, 4 and 6, we have found that since independent witnesses such as Sarat Chandra Panigrahi (P.W. 7), Ram Chandra Panigrahi (P.W. 8) and Chaitan Patra (P.W. 9) whose names find place in the FIR (Ext. 1) as eye witnesses to the occurrence, have resiled from their previous statements made to the I.O. under Section 161 Cr.P.C., the learned trial Judge has placed reliance on the evidence of P.Ws. 2, 4 and also the evidence of P.W. 6 even if he has been declared hostile towards the prosecution case. In paragraph 10 of the impugned judgment, the learned trial Judge has observed that before the occurrence, there was a tussle between the deceased and accused Debi Prasad Panda at about 5.20 P.M. of the relevant day during which accused sustained injuries caused by the deceased by means of a Gurkha knife. This fact does not find place either in the FIR or in the statement of P.Ws. 2, 4 and 6 made to the I.O. under Section 161 Cr.P.C. or in their evidence in the Court. It appears that the learned trial Judge might have gathered the same from paragraph 11 of the evidence of the I.O. (P.W. 11) who during cross-examination by the defence stated to have examined P.W, 8, who in his earlier version revealed that on 9.5.1993 at about 5.30 P.M. while he was present in front of his house, he saw a tussle between the deceased and accused Debi Prasad Panda. But, however, P.W. 8 did not support the prosecution case to the above effect. We, on perusal of the medical evidence as deposed to by P.W. 10, are convinced that accused Debi Prasad Panda had sustained the following injuries as per Ext. 5 :
(i) Incised wound 1 x 2/10" x 1/2" skin deep longitudinally placed, spindle shaped, tafling downwards placed over left fore-arm, ulnar side 3.2" above the wrist.
(ii) Incised wound curved 1/2" x 2/10" x skin deep placed over left index finger dorsal side closed to nail.
(iii) Abrasion linear 1" fong tailing downwards placed over right side wrist over inner side.
(iv) Incised wound 1" x 4/10" skin deep placed over left side chest between 8th and 9th rib on anterior oxillary line 6" below exilla.
16. How accused Debi Prasad Panda had sustained injuries as per Ext. 5 has not been explained by the prosecution. Established position of law on this point as laid down by the Apex Court has to be seen. In AIR 1976 SC 2263 (Laxmi Singh and Ors. v. State of Bihar) the Apex Court has ruled thus :
"In a murder case, non-explanation of injuries sustained by the accused at about time of occurrence or in course of altercation is a very important circumstances from which the Court can draw the following inferences :
(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;
(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and, therefore, their evidence is unreliable;
(iii) that in case there is defence version which explains the injuries on the person of the accused, it is rendered probable so as to throw doubt on the prosecution case."
AIR 1968 SC 1281 and AIR 1975 SC 1674 relied on. Their Lordships of the Supreme Court observed in the above case that omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consisting of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. The Apex Court further held that there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit worthy that it far outweighs the fact of omission on the part of the prosecution to explain the injuries. AIR 1975 SC 1478 relied on. Therefore, much depends upon the facts and circumstance of each case. Reliance can also be placed on Vijay Singh ana Ors. v. State of U.P. reported in 1990 (II) Crimes 584 may be referred to. Where it is seen that the prosecution has suppressed the genesis and the origin of the occurrence and has not presented the true version, the prosecution case becomes vulnerable. Non-explanation of the injuries may not affect the prosecution case as a whole. The defence can contend on the basis of non-explanation of injuries found on the accused that the accused could have had a right of private defence or at any rate the reasonable doubt arises in this regard. In the present case, since the genesis and the origin of the occurrence have neither been reflected in the FIR (Ext. 1) nor in the statements made to the I.O. under Section 161 Cr.P.C. by P.Ws. 1 to 4 and 6, who are no other than the family members of the deceased and thus are not only interested but also inimically disposed of towards the accused Debi Prasad Panda, we are constrained to hold that the prosecution has not presented true versions for which the prosecution case has become vulnerable. Therefore, on facts and circumstances of the case, we hold that the learned trial Judge has committed error in brushing aside the serious infirmities in the prosecution case regarding non-explanation of injuries sustained by accused Debi Prasad Panda on unconvincing premises.
17. While scanning evidence of P.W. 2, who claims to have seen the occurrence, we have found that his version that at Ganganagar Chhak accused K. Dharma Acharya was holding right hand and accused Babula was holding left hand of the deceased and were dragging him towards Madala Sahi while accused Prabir was giving pushes from his back side, is discrepant from the version of P.W. 1, who has stated to have seen accused Laxminarayan, Prabir and Kadama dragging the deceased towards Madala Sahi while accused Debi Prasad was giving pushes to him from his back. But the learned trial Judge in the judgment impugned before us has observed that it is accused Laxminarayan who was holding left hand of the deceased, which is different from what P.Ws. 1 and 2 have stated in their evidence. P.W. 2 stated to have seen the occurrence only fortwo to three minutes and thereafter rushed to R.M.S. by a rickshaw to intimate the incident to police as his domestic phone was disconnected and while he was coming home he was told near Ganganagar Chhak by his son (P.W. 4) that the deceased was killed. From his testimony it admits of no doubt that P.W. 2 has not seen with his own eyes as to who actually killed the deceased nor P.W. 4 told him about that nor even he went to spot to see his deadbody nor he himself asked his son as to who killed him and how and by what means. His evidence does not implicate the other accused persons in any manner in the complicity of the crime by attributing any specific overtact to each of them but he has stated to have seen accused Debi Prasad Panda assaulting his son by means of a thenga which hit on the right side shoulder of the deceased but the same is of no avail for having been not supported by any independent witness. Though as per his version one Ishwar Rao who has got a hotel at Ganganagar Chhak saw such assault but he has net been examined by the Police. The above being the state of evidence of P.W. 2, we are not inclined to give much weightage to his evidence. Even FIR (Ext. 1) is silent about presence of P.Ws. 2 and 4 near Ganganagar Chhak where accused Debi Prasad Panda assaulted the deceased by means of a thenga. As such doubt arises regarding presence of P.W. 2 at Ganganagar Chhak particularly when his very conduct at that juncture goes against normal human behaviour. The learned trial Judge has disbelieved the evidence of P.W. 1 as while deposing in the Court he has contradicted his own version in the FIR as well as the version made to the I.O. In the Court, his evidence shows that he has made improvements in his evidence by altering the story of prosecution case as per Ext. 1 but the learned trial Judge has given undue weightage to P.W. 2 and placed reliance on his version, which he ought not to have given particularly when he being not an eye witness to the occurrence of killing of the deceased and more so when his evidence is not clear, cogent, consistent and credit-worthy.
18. P.W. 4, whose evidence, we have reappreciated, stated to have heard about the assault on the deceased near Jagannath temple while he was returning home from the Bus-stand. He proceeded towards Madala Sahi by his cycle. At that time he found accused Dambaru, Ram Prasad and Kali holding the deceased while accused Manoj telling them not to assault him and the matter would be decided. His version regarding assault on the deceased at Madala Sahi is quoted for better appreciation :
"..... I immediately proceeded to Madala Sahi by my cycle and near the Byayam Sala in Madala Sahi I saw that six persons were assaulting my brother with deadly weapons. Accused Dambaru Naik, Sana Gantayat and Kali Nayak had caught hold of the deceased. Accused Kali had caught the tuft of hair of the deceased, accused Dambaru had caught hold of the left hand of the deceased and accused Sana Gantayat had caught the right leg of the deceased. At that time accused Manoj Kumar Padhi was telling not to assault the deceased and the matter would be decided. Accused Sarat Sahu gave an axe blow which hit on the chin (thodi) of the deceased. Accused Prabir at that time gave sword blow on the right thigh of my brother. As accused Sarat and Prabir assaulted the deceased, accused Sana Gantayat, Dambaru Naik and Kali Naik left the deceased. On account of assault my brother fell down on the road. At that time ! raised hullah not to assault my brother. At this accused Debi Prasad, K. Dharma Rao (identified), Arun Kumar Dash and Laxminarayan Sahu who were present at the distance of about 10/12 feet from the place of assault came near the deceased. Accused K. Dharma Rao, Arun Kumar Dash and Laxminarayan Sahu were armed with sword each. Accused Oebi Prasad Panda taking a sword from Manoj Kumar Padhi cut neck of my brother from the right side. As I shouted, the accused persons threatened me to kill. My brother died then and there. I returned and informed my father at Ganganagar Chhak about the murder of my brother."
19. How far evidence of P.W. 4, who claims to have seen the occurrence is legally acceptable and can be relied upon is to be examined by separating the truth from falsehood by applying the test of touch stone to his evidence so that grain can be separated from chaff. The learned counsel appearing for the appellants has drawn our attention to paragraph 20 of deposition of P.W. 11 (I.O.) who, while being confronted with the earlier version made by P.W. 4, admitted that he (P.W. 4) has not stated to him that accused Kali had caught the tuft of hair of the deceased; and that accused Dambaru had caught left hand of the deceased; and that accused Sana Gantayat had caught the right leg of the deceased; and that while he reached near the spot, he found six persons were assaulting his brother; and that accused Sarat Sahu gave an axe blow on the chin of the deceased and accused Prabir gave a sword blow on the right side thigh of the deceased; and that accused Debi Prasad Panda, K. Dharma Rao, Arun and Laxminarayan were present at a distance of about 10/12 feet from the place of assault and they came near the deceased; and that accused K. Dharma Rao, Arun and Laxminarayan were armed with sword each.
20. We have already pointed out earlier that FIR (Ext. 1) lodged by P.W. 1 though mentioned the names of some independent witnesses to have seen occurrence, but it is silent about the presence of P.W. 4 near the spot of occurrence at the material time for which doubt arises regarding veracity of his version as deposed to in the court and that too when all that he has stated in his evidence in the Court has not been told to the I.O. during investigation of the case. This shows that P.W. 4 made an attempt to develop the case during his examination before the trial court suppressing the genesis and the origin of the prosecution case fully. In our considered view, evidence of P.W. 4 suffers from infirmities and the same being not clear, cogent, consistent and creditworthy cannot be relied upon.
21. Now coming to the evidence of P.W. 6, one of the brothers of the deceased, it is seen that he came to the spot through Hyderabad lane. He has admitted in para 4 of his deposition that he could not see the presence of his brothers Debi (P.W. 4) and Kali (P.W. 1) at the spot as soon as he reached near the spot. He has also stated to have seen the presence of about ten persons at the spot. According to him, about hundred persons of the locality were present there by the time he reached the spot. After his neck was cut, all the persons went away. He has stated to the I.O. that accused Tutu Panda, K. Dharma Acharya and Sarat Sahu ran away from the spot as he raised hulla. His father (P.W. 2) came to the spot to see the deadbody after arrival of the police. This shows that P.W. 6 in his evidence eliminated the physical presence of P.Ws. 1, 2 and 4 who claim to be the natural witnesses to the occurrence. If the presence of P.W. 6 at the spot at the material time is accepted, then presence of P.Ws. 1, 2 and 4 can never be conceived. However, P.W. 6 has been declared hostile by the prosecution for having resiled from their earlier versions made to the I.O. Here is a case where the so-called independent eye witnesses to the occurrence such as P.Ws. 7, 8 and 9 have not supported the prosecution case during trial. Moreover, Ram Paik in front of whose house, the alleged occurrence had taken place and other nearby house owners having been not examined by the prosecution, adverse inference has to be drawn against the prosecution case.
22. While parting with the judgment, we would like to refer to some more decisions of the Supreme Court regarding acceptability or otherwise of witnesses, who are relations of the deceased and thus, interested in the prosecution case. The settled position of law is that during the criminal trial the testimony of all material - prosecution witnesses interested in the prosecution case requires close scrutiny and when there are many infirmities, contradictions, appearing in the evidence of the prosecution witnesses, it is extremely hazardous to convict the accused in the absence of corroboration in all material particulars. This view has been expressed by the Apex Court in the case of Ram Ashrit Ram and Ors. v. State of Bihar reported in 1983 (Crimes) 1310 (SC). In the case at hand admittedly P.Ws. 2, 4 and 6 are inimically disposed of towards the family of accused Debi Prasad Panda. Besides that, there are many other infirmities and contradictions in the evidence of the aforesaid witnesses. At the same time, the so-called eye witnesses account is neither correct regarding how the incident started nor it explained the injuries caused to accused Debi Prasad Panda for which the infirmities pointed out by the learned counsel for the appellants in the evidence of the witnesses created serious doubt in our mind regarding the manner in which the incident has happened. Thus, the ocular testimony of the aforesaid witnesses, who are interested, related and partisan cannot be relied upon in a case of this nature. In this regard AIR 1995 SC 1727 (Ramnath v. State of Punjab) can be relied upon. In the case at hand, the prosecution witnesses are not only interested, related and partisan in spirit, but also their evidence is intrinsically unreliable for which it would be hazardous to convict the accused persons. In support of this view, reliance can be placed on the decision reported in 1983 (1) Crimes 1310 (supra). In the case of Saiveraj v. State of Tamilnadu reported in AIR 1976 SC 1970, the Apex Court has ruled that when the evidence led on behalf of the prosecution is wholly unsatisfactory and cannot be accepted as sufficient to hold the appellant guilty for the murder of the deceased, the appellant is entitled to be acquitted.
23. During criminal trial, it is incumbent on the part of the Court to give equal importance to the evidence of the witnesses pressed into service on behalf of the prosecution as well as defence in support of their respective stand taken in the case. The learned Trial Judge has accepted and relied upon the evidence of D.W. 1 regarding absence of P.W. 1 at the place of occurrence at the material time basing on Exts. A and B proved by D.W. 1, but he has not given importance to the evidence of D.W. 2 when he stated that at the material time P.W. 4 was at his Pan shop till 6.20 P.M. and discussing about his personal affairs and, thereafter, left the shop hearing murder of his brother. On the facts and circumstances of the case and on perusal of the evidence of D.W. 2, we feel that there is no reason why his evidence should be disbelieved regarding physical presence of P.W. 4 at his Pan shop at the material time. Though P.W. 4 claims to have seen the occurrence, he could not say how the occurrence between the parties started. It appears, either he did not see how the occurrence started because of being physically not present near the place of occurrence at the material time or he suppressed the genesis and origin of the prosecution case. He failed to explain the injuries on accused Debi Prasad Panda caused by the deceased. He has made improvement in his evidence in the Court by deposing all that he has not stated to the I.O. during investigation of the case. This being state of evidence of P.W. 4, when his presence at the material time on the spot is doubtful, his presence at the Pan shop of D.W. 2 at that juncture has to be believed and relied upon.
24. On the whole, on reappraisal of the evidence of the witnesses on record, we are convinced that there is no legal evidence worthy of credence to show that the accused persons having formed an unlawful assembly in prosecution of their common object dragged the deceased from Masjid Chhak, took him to Uadala Sahi and killed him for which we are unable to hold them guilty or rioting being armed with deadly weapons like knife and sword and particularly when physical presence of so-called eye witnesses at the place of occurrence is found doubtful and independent witnesses from the locality having been not examined, we hold that the prosecution has utterly failed to substantiate the charges against the accused persons beyond the shadow of all reasonable doubt. Moreover, the prosecution has not established the motive for the commission of the crime. In 1985 Crl. Law Journal 580 (Benguli and Ors. v. State of Orissa) a view has been taken on the question of motive. It is held therein that true it is that the question of motive is of no consequence, if the evidence against the accused persons is clear and cogent, but the absence of proof of motive would put the Court on its guard to examine the evidence bearing on the guilt of the accused persons with care before its acceptance. In the present case, evidence of eye witnesses against the accused persons is not clear, cogent and trust-worthy for the reasons recorded above. As such, when the prosecution has not .established the motive for commission of the alleged crime, it casts serious reflection on the fairness of the trial in the present case where the witnesses with partisan spirit have resorted to falsehood against the accused persons by making improvement in their evidence in the Court to implicate them unhesitatingly with the complicity of alleged crime.
25. Therefore, on reappreciation of evidence of witnesses on its entirity and in view of the case laws as laid down by the Apex Court on each point as discussed above, we hold that the conclusion arrived at by the learned trial Judge that the accused persons committed rioting armed with deadly weapons and committed murder of the deceased in prosecution of their common object cannot be sustained and accordingly, the judgment of conviction under Sections 147, 148 and 302 read with 149 of the Indian Penal Code and sentence passed thereunder by him is hereby set aside.
26. In the result, we allow these two Criminal Appeals preferred by the appellants, who having been found not guilty of the charges, are hereby acquitted. The appellants, who are in jail custody, are directed to be set at liberty forthwith if their detention is not required in connection with any other case. The appellants, who are on bail, are discharged of their bail bonds.
B.P. Das, J.
27. I agree.