JUDGMENT
B. Panigrahi, J.
1. This is an appeal filed by the State challenging the order dated 16.11.1983 passed by the learned Additional Sessions Judge, Puri in Sessions Trial No. 3/70 of 1983/82, whereby and whereunder the learned trial Court has acquitted the present respondents along with other accused persons of the charges under Sections 147, 148 and 302/323 read with Section 149 of the Indian Penal Code, in short, “IPC”.
2. The skeletal picture of the prosecution case as revealed in course of trial is as follows :
There was a club in village Raigurupur in the name and style of “Gopinath Dev Juba Shree Club”. Prafulla Chandra Panda, P.W.19, was the President, whereas respondent Iswar Mallick was the Secretary of the said club at the relevant time. The respondent Iswar Mallick is alleged to have taken a coconut garden on lease for the year 1982-83 on behalf of the club. About a week after the auction, when the other members of the club attempted to pluck coconuts, Iswar Mallick did not permit them to do so saying that he alone had taken the coconut garden on lease and the lease was not on behalf of the club. There was bitter feeling between respondent Iswar Mallick on one hand and the villagers on the other. The respondent Iswar Mallick belongs to village Odasamudi and he had the support of other villagers of the said village. Therefore, obviously there was ill feeling between the villagers of Odasamudi and those of Raigurupur. In order to avoid apprehension of breach of peace, a constable and a gramarakhi were deputed to village Odasamudi.
3. On 18.4.1982 some stray cattle entered into the brinjal field of Harihar Behari of Raigurupur. His son Ganeswar Behari (P.W. 14) while driving out the cattle, two of them entered into the groundnut field of Kumar Mallik. Accused Purna Mallik who happened to be there abused Ganeswar Behari (P.W. 14) in filthy language and threw a challenge to the villagers of Raigurupur to fight if they so desired. P.W. 14 on return to the village narrated the incident to his father and other villagers. It was decided by the villagers in the evening that on the following morning they would go to Odasamudi and explain about the incident to the constable, P.W.2, So, P.Ws. 5, 6, 7 and other villagers went to P.W.2, the constable who was staying in village Odasamudi, and explained the previous day’s incident to him. At his juncture, the respondents and the other accused persons along with their female folk abused the villagers of Raigurupur. P.W.2 persuaded the villagers of Raigurupur to go back to their village and took them upto the well situated at the outskirts of village Raigurupur. Again some of the villagers of Odasamudi started abusing the villagers of Raigurupur from their village. P.W.2 went there to dissuade them from doing so. P.Ws.4, 5, 6, 8, 18 and the deceased Benu also followed P.W.2, upto the village. After prohibiting the villagers of Odasamudi from abusing the villagers of Raigurupur P.W.2 brought back the aforesaid six persons including the deceased who had gone with him, upto the well. At that time, the accused Purna Mallik standing on the Panchamania land shouted in an abusive language by brandishing a lathi and threw challenge to the villagers of Raigurupur. On hearing this; P.Ws.1, 3, 4 and the deceased started going towards the Panchamania land. All on a sudden, the respondent Iswar Mallik and Kumar Mallik gave lathi blows on the head of Benudhar Behera from back side, as a result of which he fell down with bleeding injury. The other accused persons also rushed to the Panchamania field and assaulted the prosecution witnesses by lathi and brickbats causing injuries to them. The injured persons were taken to Mangalpur Hospital for treatment. Since the condition of Benu Behera deteriorated and became critical, he was removed to SCB Medical College and Hospital, Cuttack where he succumbed to the injuries. P.W. 1 came to the Police station and gave a written report vide Ext.I, on the basis of which the Officer-in-charge of Pipili Police Station, P.W.21, registered P.S. Case No. 51 of 1982 and immediately swung into action. He recorded the statement of the informant, visited the spot, seized some stones, blood stained earth and sample earth, and recorded the statement of P.Ws.2 and 3, the constable and the gramarakhi respectively and other witnesses. On 23.4.1982 he received an information that Benu Behera died in the medical college and hospital. Therefore, he requested the OIC, Mangalabag Police Station to hold inquest over the deadbody and send the deadbody for post mortem examination. P.W. 13, the A.S.I. of Mangalabag Police Station held inquest over the deadbody and sent it for post mortem examination. The injured were examined by the medical officer. In course of investigation, the respondents and other accused persons were arrested. After closure of investigation, chargesheet was placed against the respondents and other accused persons who faced trial before the learned Sessions Judge, Puri.
4. The respondents and other accused persons pleaded their innocence and claimed to have been falsely implicated in the case which, according to them, was lodged as a counterblast to their case against P.Ws.1 and 8. Harihar Behari and other villagers of Raigurupur.
5. In all, twenty two witnesses were examined by the prosecution. The defence did not choose to examine any witness.
The learned Additional Sessions Judge after carefully scanning the evidence on record passed an order of acquittal of all the accused persons. The State being aggrieved by the said judgment and order passed by the learned Addl. Sessions Judge has preferred this appeal. At the time of admission, leave was granted only against the two respondents Iswar Mallik and Kumar Mallik, and the order of acquittal of the other accused was maintained.
6. The prosecution in order to bring home the charges against the present two respondents have relied upon the eyewitnesses’ account of P.Ws. 4, 5, 6, 7, 8, 11. 12 and 18 apart from the other official witnesses. The trial Court has recorded the order of acquittal on the basis of the following materials :
(a) The story of the prosecution narrated in the F.I.R. did not tally with the evidence placed in Court. Therefore, it would be extremely hazardous for the Court to make out a case for the prosecution in order to implicate the accused persons.
(b) The omission to narrate the specific part played by the respondent Iswar Mallik and Kumar Mallik in the F.I.R. in course of the assault on the deceased was a vital defect and the evidence in course of trial was subsequent development.
(c) In the F.I.R. it was described that there was free fight between the villagers of Raigurupur and Odasamudi. The nature of evidence appears to be far below the required standard to connect any individual accused with the commission of the crime.
(d) The oral evidence is not fully supported by the medical evidence. There has been no independent corroboration from any other source apart from the evidence of the partisan witnesses.
(e) The evidence of the Investigating Officer was far below satisfaction for having not sent the material objects for chemical examination.
(f) The spot map also was not correctly drawn to establish the exact place of occurrence.
7. Mr. Mohanty, learned Additional Government Advocate, has submitted that the learned Additional Sessions Judge has not discussed the evidence in proper perspective inasmuch as when there were eye-witnesses to the occurrence, it was the duty of the trial Court to scan the evidence and appreciate the same in proper manner. He has high-lighted that there were too many eye-witnesses who have not only supported the prosecution story but also presented in a graphic manner about the participation of the present respondents. It is further transpired that there were injuries on the eye-witnesses who claimed to have received the injuries in course of the same transaction. In the above background, a duty was cast upon the trial Court to place utmost credibility on the statement of those witnesses. According to Mr. Mohanty, in a criminal case it is quite natural that there may be some inconsistencies which will lend assurance to the truthfulness of the testimony of the witnesses, if such minor contradiction or inconsistencies does not cut the root of the prosecution story.
8. Mr. Das learned counsel appearing for the respondents while supporting the judgment has indicated that there are several inconsistencies and contradictions in the statement of the witnesses at the initial stage of investigation and also during the course of trial. It was argued with strong intensity of conviction that the prosecution has signally failed to narrate the specific part alleged to have been played by the respondents in the F.I.R., but subsequently in course of trial, vital development has been made. Therefore, the trial Court was quite justified in disbelieving the eye-witnesses even though they had received injuries in course of the same transaction. It has been strongly urged that although some of the accused persons had also received injuries in course of the same occurrence, but the prosecution has not explained the injuries and, therefore, the trial Court has rightly drawn adverse inference against the prosecution.
9. Before discussing the evidence of the prosecution witnesses, let us first of all discuss the scope of the appeal against acquittal and also the duty of the appellate Court in the above situation. Though the Code of Criminal Procedure does not make any distinction between an appeal from acquittal and an appeal from conviction, so far as powers of the appellate Court are concerned, but certain unwritten rules of adjudication have consistently been followed by Judges while dealing with appeals against acquittal. No doubt, the High Court has full power to review the evidence and to arrive at its own independent conclusion whether the appeal is against conviction or acquittal. But while dealing with an appeal against acquittal, the appellate Court has to bear in mind (i) that there is a general presumption in favour of the innocence of the person accused in criminal cases and that presumption is only strengthened by the acquittal; and (ii) that every accused is entitled to the benefit of reasonable doubt regarding his guilt and when the trial Court acquitted him, he would retain that benefit in the appellate Court also. Thus, appellate Court in appeals against acquittal has to proceed more cautiously and only if there is absolute assurance of the guilt of the accused, upon the evidence on record, then the order of acquittal is liable to be interfered with or disturbed.
10. Keeping in view the aforesaid principle, let us advert to the facts situation of the prosecution story. P.W. 1 is the informant in this case. From the text of his evidence, it appears that on 18.4.1982 morning some stray cattle entered into the brinjal field of Harihar Behari. When his son Ganeswar Behari (P.W. 14) drove away the cattle, some of them entered into the groundnut field of Kumar Mallik of village Odasamudi. The aforesaid incident was witnessed by Purna Mallik. Purna Mallik, while driving those two cattle out of the field of Kumar Mallik, is said to have abused P.W. 14. This fact was brought to the notice of Benu Behera and other villagers of Raigurupur. All the villagers of Raigurupur, therefore, decided to bring the said fact to the notice of the constable who stationed at village Odasamudi. The villagers of Raigurupur had been to Odasamudi to report to the constable. However, P.W.1 did not accompany them. But after he heard an out-cry from village Odasamudi, out of curiosity, he proceeded in that direction and saw the constable pacifying his co-villagers. P.W.1 had also noticed the villagers near the well which was situated at the outskrits of his village. He saw Purna Chandra Mallik brandishing a lathi and throwing challenge to his villagers. He also noticed that Sagar Behera, Kedar Pradhan, Laxmidhar Panda and others were injured but he did not support the prosecution story in so far as the assault on the deceased Benudhar is concerned. He has not claimed to have seen the assault on Benudhar Behera. Therefore, it is quite natural that he was not given the details of the assault allegedly made on Benudhar Behera. His evidence in not implicating the respondents does not weaken the prosecution story since he himself was not an eye-witness to the occurrence.
11. P.W.2 was the constable on duty in village Odasamudi. From his evidence, it is transpired that the villagers of Raigurupur came towards village Odasamudi. At that juncture, the villagers of Odasamudi abused the eye-witnesses and other villagers of Raigurupur. He persuaded the villagers of Raigurupur to go back and brought them near the well which was situated at the outskirts of village Raigurupur. At that juncture, the villagers of Odasamudi including some female folk were abusing the villagers of Raigurupur. Accused Purna Mallik was standing on Panchamania land and was using intemperate language by brandishing a lathi. At this, the villagers of Raigurupur who were armed with lathis crossed the Kia bushes and came to Panchamania land. He (P.W.2) also proceeded to Panchamania not through the Kia bushes but through the other way. On reaching the spot, he noticed that Benu Behera had fallen on the ground after receiving severe injuries on his head. Some stones were scattered near that place. All the accused persons were present in Panchamania land and were pelting brickbats. The villagers of Raigurupur including the witnesses were also retaliating by pelting brickbats. The defence was able to bring out in evidence that the well was not visible from Panchamania land as a ridge was intervening. It seems that P.W.2 is not an eye-witness. His evidence does not disclose the complicity of the respondents save and except the fact that there was rivalry between the villagers of Raigurupur and Odasamudi. However, it has been proved that there was exchange of brickbats between the two villagers at the relevant point of time.
12. P.W. 3 was the gramarakhi deputed to maintain law and order in the village. From his evidence, participation of these two respondents in the assault cannot be ascertained. It is further transpired that the place of occurrence was not visible from the well as the Kia bush intervened between the well and Panachamania land. To approach the Panchamania land one has to cross the ridge of the tank which was the usual way.
13. P.W.4 was one of the villagers of Raigurupur. He has claimed to have received injuries in course of the same transaction. He has supported the version of P.W. 1 to the effect that the villagers of Raigurupur had been to Odasamudi to report the preceding day’s incident to the constable, P.W.2. When they reached there, the villagers of Odasamudi including Purna Chandra Mallik abused them. Purna Mallik also brandished a lathi and threw challenge to them. So, there was a quarrel and free fight between the villagers of Odasamudi and Raigurupur. Although he has stated that respondent Iswar Mallik gave a lathi blow on the head of Benu Behera from behind, but such evidence whether believable or not shall be carefully scrutinised. He claimed to have seen the occurrence by standing at a distance of 10-15 cubits near the well. Undisputedly the incident had taken place inside Panchamania land. In the spot map filed by the prosecution, the I.O. has narrated that the distance was more than 150 ft. In that case it was quite unlikely for P.W.4 to have seen the occurrence by standing at a distance of 10-15 cubits near the well. It is the prosecution story that immediately after the occurrence Benu Behera was shifted to Mangalpur P.H.C. and he was sent on police requisition on 19.4.1982. From the examination of P.W. 10, the doctor who treated the deceased Benudhar, it is found that the patient was semi conscious and his case was referred to the S.C.B. Medical College. The prosecution has not taken any step to prove the bed-head ticket so as to throw any light about the condition of the victim by the time he was admitted to the P.H.C. Even though he was semi-conscious, no step was taken by the I.O., P.W.21 to record his statement. Had his statement been recorded, it could have thrown much light in determining the culpability of the accused persons. P.W.4 had conspicuously pleaded ignorance about the injuries on the accused persons who were undisputedly treated at Mangalpur Hospital. In this background, the version of P.W.4 is not free from suspicion. It is true that in a faction ridden village, it is difficult to procure any independent witness. But, at the same time, while determining the evidentiary value of a particular witness, the entire facts situation has to be taken into consideration. Since it is noticed that P.W.4 has suppressed a part of the occurrence, it is hazardous to place utmost reliance on his evidence.
14. Coming to the evidence of P.W.5, it is found that he has claimed to have seen the incident from a distance of 5-6 cubits towards the south of the well. It is noticed that Panchamania land was not visible from the well since there were Kia bushes which intervened the place of occurrence and the well, and, therefore, it is quite unlikely that P.W.5 could have seen the occurrence by standing at distance of about 5-6 cubits towards the south of the well. From his evidence, it is transpired that respondent Iswar Mallik gave a lathi blow on the backside of head of Benu Behera. After he fell down, respondent Kumar Mallik gave a lathi blow on the right side of his head. On a careful reading of the evidence of P.W.5, it has appeared that the deceased received two head injuries alleged to have been dealt by the respondents. From the evidence, it is further transpired that there was exchange of brickbats between the villagers of Odasamudi and Raigurupur. The consistent evidence of all the prosecution witnesses is that both the respondents dealt two blows on the head of the deceased Benu Behera.
15. Turning to the evidence of P.W.10, it appears that the deceased Benu Behera received two injuries which are as follows:
(i) Lacerated wound about 2″ length, 1/2″ breadth over the middle of the scalp, margin everted 4 stitches given.
(ii) Swelling with abrasion about 4″ Diameter over the right temporal region, colour red.
16. P.Ws.4 and 5 and other eye-witnesses have stated that respondent Iswar Mallik gave a lathi blow to Benudhar from behind. If such blow is given from behind, Benu would not have received injury on the middle of the scalp, but injuries could have only been possible on the backside of the head. From the evidence of P.W.9, who conducted the post mortem examination, it appears that there was fracture of bone due to Injury No. 1 and the fractured bone lacerated the brain substance. From the opinion of the doctor, it is established that Injury No. 1 was quite likely to cause death. Injury No. 2 could be caused by fall on left side. Injury No. 1 was alone sufficient to cause death. From the eye-witnesses’ account, it is not certainly proved by the prosecution as to which of the respondents had inflicted such murderous blow on Benu Behera. Rather from the evidence, it has been established that there was exchange of brickbats between the villagers of Raigurupur and Odasamudi. The possibility of the prosecution witnesses seeing the occurrence is also doubtful as the well near which they were standing and the place of occurrence are intervened by Kia bushes and high ridges. They are not only interested and partisan witnesses but also inimical to the respondents. Therefore, their evidence does hot reflect the true state of affairs. The investigation conducted by P.W.21 appears to be perfunctory. From the evidence of P.W.21, it appears that there was irregular fences around Panchamania land. He has also stated that due to fencing, the spot was not visible while standing near the well.
16. From the aforesaid analysis, it is found that the prosecution has not been able to prove its case regarding the complicity of the present respondents by clear, cogent and credible evidence. That apart, when two views are possible, one determining the guilt of the accused and the other, presuming their innocence, the view which supports the respondents should be accepted by the appellate Court. In this background, the order of acquittal recorded by the trial Court cannot be interfered with.
17. Accordingly, the appeal fails and is hereby dismissed. The order of acquittal of the respondents is confirmed.
Ch. P.K. Misra, J.
18. I agree.