JUDGMENT
P.K. Tripathy, J.
1. This appeal has been preferred against the order of acquittal granted in favour of the accused-respondents by learned Assistant Sessions Judge-cum-Chief Judicial Magistrate, Puri on 23-7-1986 in S.T. Case No. 1 /2 of 1986 arising out of G.R. Case No. 1026 of 1984 of the Court of Sub-divisional Judicial Magistrate, Puri.
2. According to the case of the prosecution, there was ill-feeling between the accused persons and Lokanath Das (P.W. No. 2). On 30-8-1984, while P.W. No. 2 accompanied by P.Ws. 1 and 3, each occupying separate bi-cycles were going on the public road leading to Brahmagiri, at about 8.30 p.m. near Puri-Nimapara Co-operative Bank, the three accused persons came and attempted to commit murder of P.W. No. 2. According to the allegations of the prosecution, respondents 1 and 2 dealt respectively Farsa blows on his right hand and on his face. Accused sustained bleeding injuries and fell down at the spot. Accused persons, who were three in number fled away from the spot, P.W. No. 2 was brought to the Medical Dispensary at Brahmagiri and thereafter the Police at Brahmagiri was intimated. The Officer-in-charge, Brahmagiri Police Station registered P.S. Case No. 9*7 of 1984 and undertook the investigation in a routine manner and on completion of investigation, submitted charge-sheet against three accused persons for the offence under Section 307, I.P.C. Accused persons took the plea of complete denial and stated about false accusation because of previous enmity,
3. To substantiate the charge, prosecution examined as many as nine witnesses. Out of them, as noted above, P.W; No. 2 is the injured, P.W. Nos. 1 and 3 claimed to be the eye-witnesses to the occurrence being travelling together with P.W. No. 2 at the relevant time, P.W. Nos. 5 and 6 claimed as independent eye witnesses to the occurrence, P.W. No. 4 is the Doctor, who examined P.W. No. 2 and granted the injury certificate, Ext. 2 and P.W. No. 9 is the Investigating Officer and others are witnesses to the seizure. Ext. 1 is the F.I.R. lodged by P.W. No. 1. Ext. 2 is the injury certificate, Exts. 3 and 5 are the seizure lists and Ext. is the zimanama. No material object was produced by the prosecution. Defence declined to adduce any evidence from its side.
4. On assessment of evidence on record, trial Court recorded the finding that P.W. No. 2 sustained three incised wounds as certified and deposed by P.W. No. 4 but he doubted the veracity of P.Ws. 1 and 3 on the ground that they are partisan witnesses. He did not record any reason specifically to ex clude the evidence of P.W. Nos. 5 and 6 but recorded the finding that since one Bairagi Jena said to have seen the occurrence was not examined as a witness from the side of the prosecution, therefore, the prosecution version is not trustworthy so as to warrant a conviction against the accused persons.
5. Learned Standing Counsel places before the Court, evidence both oral and documentary and the above noted findings recorded by the trial Court and argues that notwithstanding consistency in the statement of eye-witnesses to the occurrence regarding the manner in which the occurrence took place and the two respondents in this case being the author of the injuries which the P.W. No. 2 sustained, the trial Court un reasonably acquitted them on flimsy ground and by ignoring material evidence available on record. He argues that evidence on record is not only consistent and corroborative but also true and trustworthy to warrant a con viction against both the respondents for the offence under Section 326, I.P.C. and fairly con cedes that a case of attempt to commit murder punishable under Section 307, I.P.C. is not made out from the evidence on record. Accordingly, he argues to set aside the order of acquittal and to convict both the respon dents for the offence under Section 326, I.P.C.
6. Mr. A.K. Sahoo, learned counsel for the respondents argues that once the trial Court having given the benefit of doubt in favour of the accused that benefit should not be taken away by interfering with the order of acquittal. He further argues that evidence of P.W. No. 3 is clear enough to indicate that he was not an eye-witness to the occurrence. He also argues that it is clear from the evidence of P.Ws. 1 and 2 that P.W. No. 2 is the maternal uncle of P.W. No. 1 and paternal uncle of P.W. No. 3 and, therefore, evidence of such interested witnesses was critically scrutinised by the trial Court and notwithstanding consistency and corroboration in such evidence the trial court did not find such evidence credible so as to warrant a conviction against the respondents and under such circumstances, the order of acquittal be maintained and the Government Appeal be dismissed.
7. It is proper to mention here that on the basis of the charge-sheet altogether three accused persons faced the sessions trial and acquitted by the trial Court. State has pre ferred this appeal against two of them viz. Sri Kanhu Mohapatra and Sri Santosh Kumar Naik. Therefore, State has not appealed against the order of acquittal so far as the third accused i.e., Balu alias Sri Surendra Kumar Patnaik is concerned Learned Standing Counsel submits that there is no evidence against accused-Balu and, therefore, order of acquittal in his favour is conceded by the State.
8. It appears from the evidence of P.W. No. 4 that on the date of occurrence at 8.25 p.m. P.W. No. 2 was brought to the Brahmagiri Dispensary and then he examined him and found the following injuries:-
(i) Incised wound 1/2″ x 1/4″ x full thickness depth of the upper lip situated longitudinally below the nose close to the mid line of the face on the left side.
(ii) Incised wound 1″ x l/4″ x full thickness depth of the lower lip and gum situated longitudinally close to the midline of the face on the left side.
{iii) Incised wound 11/4 x 1 /8″ x soft tissue depth and involvement of bone situated obliquely on the back of the right fore-arm 2″ above the wrist towards the radial margin.
He found all the injuries possible by sharp cutting weapon, He found that injury Nos.
(i) and (ii) were simple in nature and injury No. (iii) was grievous in nature because of the X-Ray report relating to the fracture of the radious. The Doctor did not opine that the aforesaid injuries were in any way sufficient or dangerous so as to cause death of the injured. Injury on the person of P.W. No. 2 was neither disputed at the time of trial nor it has been disputed now before this Court. Therefore, this Court appreciates contention of learned Standing Counsel that prosecution has not been able to prove either through direct evidence or the medical evidence that accused persons had attempted murder so as to be punished under Section 307, I.P.C. However, his contention relating to conviction under Section 326, I.P.C. is a matter to be considered on a further probe into the evidence on record.
9. Before that the vital question falls for consideration is as to whether respondents are the author of the said injuries and what is the scope of interference by the appellate Court.
10. According to the provision in Chapter XXIX of the Code of Criminal Procedure, 1973 (in short ‘the Code’) and particularly Section 386, when leave is granted for appeal against order of acquittal, the appellate Court has the option to–
“reverse such order and direct that further inquiry be made, or that the accused be retried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law.”
11. The Code does not make a distinction in the duty of the appellate Court be it relating to an order of conviction or order of acquittal, which is placed for consideration. However, the settled principle of law established by healthy precedents is that when an order of acquittal has been granted by the trial Court, the appellate Court should not interfere with the same unless the findings recorded by the trial Court is illegal or such findings suffers from perversity. In other words, the appellate Court has to give due weigh tage to the findings on fact recorded by the trial Court and if the approach of the trial Court is found legal and reasonable, then, the appellate Court should not record a contrary finding, even if reasonable, to displace the order of acquittal. On the other hand if the appellate Court finds that evidence on record was either ignored or not discussed and appreciated in accordance with law resulting in illegality and/or perversity dominating the findings in favour of the order of acquittal, then, it becomes the duty of the appellate Court to scan the evidence properly and to arrive at proper conclusion. Keeping in view that settled position of law and principle, this Court makes scrutiny of the evidence vis-a-vis the judgment of the trial Court.
12. Evidence of P.Ws. 1, 2, 3, 5 and 6 runs consistent to each other relating to the manner in which, the occurrence took place at the spot of occurrence. Evidence of P. W. No. 4 and the injury certificate Ext. 2, lends adequate corroboration to such oral evidence of the injured and the eye-witnesses. If the argument of the respondent is accepted and for the sake of discussion if it is held that P.W. No. 3 could not have seen the actual part of assault being moving 5 cubits ahead of P.W. No. 2, then at best his evidence is not to be accepted as eye-witnesses to the occurrence. That circumstance automatically does not disqualifies or discredits evidence of P.Ws. 1, 5 and 6 as witnesses to the occurrence. Their evidence has remained consistent and corroborative in that respect. Trial Court has not assigned any reason and more particularly any sound reason to discard such evidence save and except stating about the relationship between P.Ws. 1 and 2 as the nephew and maternal uncle. That relationship may be a ground to make close scrutiny of evidence of P.W. No. 1 but not to discard evidence of P.W. No. 1 merely on the ground that he is nephew of P.W. No. 2. Provision of law in Evidence Act does not disqualify or render him incompetent as eye-witness. Such a relationship, however, puts the Court on its guard to make a stricter scrutiny of such evidence to find out if such evidence is infested with falsehood and false accusation with motive or malice. On perusal of evidence of P.W. No. 1 no such deficiency or circumstance is found to discard that evidence. Trial Court, eliminated evidence of P.Ws. 5 and 6 who have not been proved as interested witness on the ground that one Bairagi Jena was said to be present at the spot but he was not examined. P.W. No. 5 in his evidence has stated about presence of such a witness. Therefore, non-examination of said Bairagi Jena could have been vital for the prosecution if his examination would have I adversely affected the prosecution case. No such circumstance has been brought on record. Therefore, non-examination of said Bairagi Jena cannot be and should not be a ground to discard acceptable evidence of P.W. Nos. 5 and 6. Under such circumstance, this Court finds that trial Court unreasonably rejected the evidence which are existing on record to identify the author of injuries. Had the trial Court assessed the evidence of the above noted eye-witnesses and recorded any deficiency therein either on the ground of contradiction or non-credibility of such witnesses and if reasons assigned thereof by the trial Court would have been found to be a reasonably probable view, then it would not have been proper for this Court to interfere with appreciation of such evidence by the trial Court. As indicated above reasons assigned by the trial Court to ignore the evidence of eye-witness is unjust and improper and, therefore, that suffers from illegality.
13. At this juncture, this Court may also take note of another circumstance, which was much highlighted by the trial Court that the exact time of occurrence was not proved and the evidence thereof is contradictory. On perusal of evidence, it is seen that according to P.W. No. 4, P.W. No. 2 was examined by him in the Dispensary at 8.25 p.m. According to the prosecution, the requisition for injury certificate was granted after the treatment by P.W. No. 4, i.e., after lodging of the F.I.R. According to P.W. Nos. 1, 2, 3 and 6 from the spot of occurrence P.W. No. 2 was first taken to the Medical Dispensary and then to the Police station and then to hospital at Purl because P.W. No. 4 found condition of P.W. No. 2 to be serious and advised for treatment at the District Hospital at Puri. From the aforesaid circumstance, trial Court has arrived at a conclusion that records were manipulated to create the evidence Ext. 2. Though the respondents do not argue to support or defend such finding of the trial Court but this Court finds that there is an utter confusion in the mind of the trial Court in that respect inasmuch as attending to a patient is one thing and grant of injury certificate on Police requisition is another thing. When it is nobody’s case that P.W. No. 2 was treated only after receipt of the requisition and when it is the consistent case of the eye-witnesses and the injured that from the spot of occurrence P.W. No. 2 was taken to the Dispensary and thereafter to the Police station therefore, noting of time of treatment as 8.25 p.m. and F.I.R. at 8.50 does not amount to a false case having been fabricated against the accused/respondents. Similarly there is nothing on record relating to time noted in Exts. 1 and 2 being manipulated. What the injured and the eye-witnesses stated about the time of occurrence was by approximation, timing noted in Ext. 2 and Ext. 1 were on the basis of the time reflected on the Clocks of the Dispensaries/Doctor and Police station /I.O. A variation of timing of about five minutes in that respect is always probable. Thus, view of the trial Court in the above context suffers from unreasonableness.
14. The discussion in the foregoing paragraphs and the evidence on record clearly indicates that respondents are the author of the injuries found on the face and hand of P.W. No. 2. According to the learned Standing Counsel, since there was fracture of the radious, therefore, it makes out a case under Section 326, I.P.C. This Court finds it difficult to accept that argument in view of the fact that prosecution did not adduce any evidence to prove the X-Ray report. The aforesaid opinion being on the basis of a document i.e., X-Ray report and when the prosecution did not produce that evidence on record, it is not safe to conclude that a case under Section 326, I.P.C. is made out. Apart from that neither P.W. No. 2 nor P.W. No. 4, have stated about duration of treatment of P.W. No. 2 or the number of days he suffered severe pain or was unable to follow his ordinary pursuits. So by proving that P.W. No. 2 suffers the injuries noted in Ext. 2, ipso facto prosecution does not prove beyond reasonable doubt a case punishable under Section 326, I.P.C. In the case of Sarat Chandra Naik v. State of Orissa, (1975) 41 Cut LT 1392, this Court has held that in the absence of proof of X-Ray report, it is not proper to warrant a conviction for grievous hurt. That principle is squarely applicable in this case.
15. When the occurrence has been proved P.W. No. 2 is found to have sustained injuries and the respondents being the author of the said injuries, on an analysis of the evidence on record, this Court finds that offence under Section 324, I.P.C. is well made out against them because the accused persons used dangerous weapons like Farsa to cause such injuries. Therefore, while setting aside the order of acquittal, this Court records a conviction against the accused/respondents for the offence under Section 324, I.P.C. The occurrence took place in August, 1984 and in the meantime about 20 years have passed, therefore, considering that aspect and the consequential grown age of the respondents in the meantime, this Court does not pro pose to impose substantive sentence against them and imposes a sentence of fine only.Accordingly, each of the respondents is sentenced to pay a fine of Rs. 1,000/- (one thousand) within a period of three months andin default to undergo simple imprisonmentof three months. On realisation of the fine,the entire amount be paid to the injured P.W. No. 2.
The Government appeal is accordingly allowed.