JUDGMENT
P.K. Misra, J.
1. The appellants Dinabandhu Sahu and Nabakishore Das alias Behera, both of village Charchika, P. S. Banki in the District of Cuttack, have been convicted under Sections 302/34 and 326/34 of the Indian Penal Code (for short, IPC) by order dated 23-2-1991 passed by the learned Second Additional Sessions Judge, Cuttack in S.R. No. 258 of 1990. They have been sentenced to undergo imprisonment for life under Sections 302/34, IPC and rigorous imprisonment for three months and to pay a fine of Rs. 100/- each, in default to undergo rigorous imprisonment for one month, under Sections 326/34, IPC. The aforesaid order of conviction and sentence has been passed on finding the appellants guilty of committing murder of one Gagan Behari Misra alias Babula and causing grievous hurt to Binayak Misra (P.W. 9).
2. Prosecution case, as revealed from the evidence of P.W. 9 is that deceased Gagan Behari Misra, Binayak Misra (P.W. 9). Soumendra Kumar Misra (P.W. 1), Satyasri Misra (P.W. 2), Suvendu Misra (P.W. 3), Dinabandhu Misra (P.W. 4). Balamukunda Misra (P.W. 5) and Pramod Ch. Misra (P.W. 7) come from a common ancestor and as such are related to each other. There was political rivalry and dissension between the appellants on one hand and deceased Babula and his family members including P.W. 9 on the other. There was a theft of a foul from the house of the deceased three days prior to the date of occurrence. The deceased suspected hand of the accused persons behind the same and lodged an F.I.R. in Banki police-station on 3-12-1989. On the date of occurrence, i.e., 5-12-1989, one Subash Chandra Misra, Advocate, and some other local persons wanted Babula to be present for a reconciliation between him and the accused-appellants. In response to such efforts made by Subash Chandra Misra and other local gentlemen, Babula went near the Novelty Cinema Hall but came back shortly to his house and informed his uncle Binayak Misra (P.W. 9) that the accused persons had threatened him saying that unless he settled the dispute according to their terms, he would face dire consequences. Informing this, the deceased again went near the cinema hall. P.W. 9 followed him apprehending some untoward incident. When Babula reached the cinema hall, accused persons along with some others were sitting in a tea stall nearby. On the arrival of Babula, there was exchange of hot words between him and, the accused-appellants. Both the appellants had also a tussle with Babula, in course of which there was exchange of fists and blows. All on a sudden, accused Dinabandhu took out a bamboo stick from the thatch of the tea stall and attacked Babula on his head. Thereafter he took out a Gupti from inside his Chadar and handed it over to Naba and told him, “PURA SALA BABJLA PETERE”. Deceased Babula tried to snatch away the Gupti from the hand of accused Naba. At that time, accused Dinabandhu brought out a Bhujali and gave a blow on the chest of Babula. The deceased tried to run away towards a tank which is on the other side of the road shouting “MARIGALI, MARIGALI”. Both the accused persons chased Babula, who was running to save himself from their clutches. At a distance of about 25 to 30 (sic) from the cinema hall, both the accused persons stood in front of Babula by which his movement was restrained. At that point of time, accused Naba pierced the Gupti on the chest of the deceased. The deceased raised a cry, “BHAINA MARI DELE NABA DIN A”, and so saying he fell down on the ground. Accused Naba again gave a stroke by means of the Gupti on the right side back of the deceased. At that point of time, Binayak Misra (P.W. 9) shouted. “MARI DE A MARI DELA”, and accused Naba pierced the Gupti on the right side back of Binayak near his armpit. Binayak tried to escape and ward off further assaults, but accused Naba gave a stroke by means of the Gupti on the right side of his chest above the right nipple or just below the right side collar bone, as a result of which he fell down on the ground. Naba also attacked him for the third time, but Binayak warded off by means of a stick which he could get from a nearby fence. The time of occurrence, as per the prosecution story, is between 5.30 p.m. and 6.00 p.m.
3. In order to prove its case, prosecution has examined sixteen witnesses. Two witnesses have been examined by the defence. Out of the prosecution witnesses, Binayak Misra (P.W. 9), Suvendur Misra (P.W. 3) and Dinabandhu Misra (P. W. 4) are the eyewitnesses with regard to the attack made by accused Dinabandhu and Naba by means of Bhujali and Gupti respectively on the deceased. P.W. 4 has also stated to have seen accused Dinabandhu giving the lathi blow on the head of the deceased. As regards the attack on Binayak, there are two eye-witnesses, namely, Soumendra Kumar Misra (P.W. 1) and Satyasri Misra (P.W. 2). P.Ws. 5, 6 and 7 are post-occurrence witnesses and P.W. 8 is a seizure witness. Medical evidence has been rendered by P.Ws. 10, 11, 12 and 15. P.Ws. 13, 14 and 16 are police officers.
4. The plea of the accused persons is complete denial of the allegations. They have alleged that the case has been falsely foisted against them with a view to put them to unnecessary harassment and manifest peril. The two witnesses examined by the defence have stated that when the deceased and P.W. 9 came to the spot, they were armed with cycle chain and wooden plank respectively. They challenged accused Dinabandhu who tried to run away, but they chased him and dealt a blow with the cycle chain on his back side head. Even after receipt of the blow. Dinabandhu ran away from the spot. Then the deceased and P.W. 9 surrounded accused Naba and assaulted him also. Thereafter, they ran away towards the northern side and accused Naba ran towards the sourthern side. Some friends of accused Naba, namely. Hari Samal, Gokha Behera and Sana Behera, chased the deceased and P.W. 9. At this point of time, both these witnesses (D.Ws. 1 and 2) left the spot and were not aware of the subsequent events.
5. P.W. 1 is the informant. He lodged the F.I.R. at 6.30 p.m. on 5-12-1989. It has been mentioned therein that around 6.00 p.m. that day, when P.W. 1 was returning from a cricket match, he heard hullah near the Novelty Cinema Hall and found that 10 to 15 persons had gathered there. His uncle Binayak Misra (P.W. 9) was shouting, “MOTE MARIDELA”. When he was running towards his uncle, he saw accused Naba attacking his uncle with a knife, as a result of which his uncle fell down on the road. When he reached the spot and tried to lift his injured uncle, his uncle told him to go and see Babula whom Naba had stabbed with a knife. He went to search for his uncle Babula and met his younger brother Kanhu alias Satyasri Misra (P.W. 2) coming from the opposite direction. P.W. 2 told him that Babula was lying near the tank. Both of them went there and saw that blood was oozing from the chest of Babula and he was dead. Then both the brothers carried Babula to the road. Suvendu Misra (P.W. 3) also came there. Thereafter, P.W. 1 arranged a rickshaw and sent; the injured Binayak to the hospital.
6. P.W. 9 has narrated in detail the attacks made and blows given by the accused persons on him and on the deceased. P.W. 3 Suvendu Misra, has stated that he has seen the blows given by the accused persons on the deceased by means of Bhujali and Gupti. Seeing that he ran away from the spot lest he might be attacked by the accused persons. P.W. 4, Dinabandhu Misra, has seen accused Dinabandhu giving the Bhujali blow on the deceased. He has also seen the said accused giving the lathi blow on the head of the deceased. After seeing the Bhujali blow, he was frightened and ran towards the back side of the cinema hall. He has not seen the attack on Binayak. The evidence of P.Ws. 3, 4 and 9 as regards the attack on the deceased has been corroborated by P.W. 2 in part who has stated that when he reached the spot after hearing the cry of the deceased “BHAINA MARI DELE”, he saw accused Dinabandhu running from the side of the tank with a knife in his hand. Regarding the attack on Binayak (P.W. 9), apart from his own version, there are two other eye-witnesses, namely, informant Soumendra Kumar Misra (P.W. 1) and Satyasri Misra (P.W. 2), both of whom have stated that on reaching the spot, they saw accused Naba piercing a knife on the chest of Binayak.
7. P.W. 10, Dr. Dhruba Ch. Satpathy, has examined the injured Binayak (P.W. 9). He found the following injuries on the body of Binayak :-
(1) Bleeding perforated injury in the right side of chest in post axillary line between 6th and 7th ribs. The size was 1″ x 1/2″ x deep into thoracic cavity on the right side of the chest wall.
(2) Incised wound in the right upper anterior chest wall in intraclavicular region close to shoulder joint. The size was 1-1/2 x 1/4 x skin depth.
According to P.W. 10, injury No. 2 was simple in nature. So far as injury No. 1 is concerned, opinion was reserved. Both the injuries could be caused by sharp cutting weapon like Gupti or knife. As the condition of the patient was serious, he was referred to the SCB Medical College Cuttack. P.W. 10 has gone to the extent of saying that had the injured (P.W. 9) not been treated immediately, he would have met a tragic end.
8. P.W. 12 Dr. Dharanidhar Pandaba, is a Surgery Specialist. He had admitted P.W. 9 in the Banki Hospital in injured condition and had examined him on police requisition. He had also given treatment to P.W. 9. According to P.W. 12, the injured was in a serious condition and was questioned by him as to how he came to be injured. The injured made statements regarding the incident which was recorded by P.W. 12 in presence of a Magistrate.
9. P.W. 15, Dr. Nabakumar Patnaik, is the Lecturer, Department of Cardiothoracic Surgery, SCB Medical College, Cuttack. He had examined and treated P.W. 9. According to P.W. 15, the injured was in respiratory distress. The movement of the chest wall on the right side was diminished. There was a stitched wound on the right anterior axillary fold of size 1″. There was another stitched wound over the right side of the chest wall 3″ below the right axilla. P.W. 15 has stated in detail regarding the condition of the patient and the treatments given to him. According to him, the injury was grievous in nature.
10. P.W. 11, Dr. Gopabandhu Rath, had conducted post-mortem over the dead body of the deceased. He found the following injuries on the dead body :-
EXTERNAL INJURIES
(i) Abrasion over right temporal region of 3 cm. x 1-V2 cm. on the lateral border of right eye brow. Colour – reddish brown.
(ii) Abrasion of 2 cm. x 1 cm. on the right side of face 3 cms. below injury No. 1.
(iii) Incised wound of 2 cms. x 1/2 cm. x 1/2 cm. on the left arm 7 cms. below axilla.
(iv) Elliptical punctured wound on the left side of chest on the fourth intercostal space 5 cms. from midline, the size of which was 4 cms. x 1/2 cm. x perforated heart depth extending downwards laterally with its tail just below the nipple in the same space.
INTERNAL INJURIES
(i) Incised wound 2 cms. x 1 cm. in the pericardium which was filled with blood.
(ii) Incised wound of 2 cms. x 1 cm. on the anterior wall left ventricle of heart. All the chambers were empty.
P.W. 11 opined that all the aforesaid injuries were ante mortem in nature. Cause of death was due to stab injury, i.e. external injury No. 4, which was homicidal in nature. The internal injuries correspond to this injury No. 4. According to P.W. 11, all the injuries taken together would cause death in ordinary course of nature. Injury No. IV was also sufficient to cause death. He also opined that this injury, i.e., injury No. 4, could be possible by Gupti. In cross-examination, he has stated that external injuries Nos. 1, 2 and 3 were simple and injury No. IV was a punctured wound.
11. It may be stated here that P.W. 12 had also examined the accused-appellants. On examination of accused Dinabandhu, he found an abrasion covered with dry blood scap of 1 /2″ lengh x negligible breadth and depth on the right side of the occipital region of the scalp 4-1/2″ from the midline, P.W. 12 opined that the injury was simple in nature and might have been caused by hard and rough substance. On examination of accused Naba, P.W. 12 found the following injuries :
(i) Cut elliptical wound 1-1/2 cms. x 1/4 cm x skin deep on the back of right knee joint just lateral to the midline situated transversely.
(ii) Incised elliptical wound 1 /2 cm x 1/4 cm. x skin deep at the inner side of the interohangeal joint of right thumb.
(iii) Abrasion 1/2 cm. x 1/4 cm. on the back of right elbow.
(iv) Minute abrasion on the occipital region of the scalp right to the midline.
In the opinion of the doctor, all the above injuries are simple in nature. Injury Nos. 1 and 2 could be caused by hard and sharp cutting weapon whereas injury Nos. III and IV could be caused by hard and rough substance.
12. The learned counsel for the appellants submitted that the trial Court has committed a mistake in placing reliance on the evidence of P.Ws. 3, 4 and 9 as there are apparent contradictions in the evidence of these three witnesses. There are also conflicts between the statement of P.W. 9 in Court and his earlier statement before police as well as the statement recorded by P.W. 12. Similar is the situation in case of P.W. 1 as there is variance in the statement made by him before Court and the F.I.R. lodged by him before the police. Learned counsel also urged that since P.W. 9 is the injured himself and P.Ws. 3 and 4 are relations and all of them are also relations of the deceased, they are interested witnesses and their evidence cannot be accepted without independent corroboration in view of Section 114 of the Evidence Act. According to the learned counsel for the appellants, though other independent witnesses were present at the time and place of the alleged occurrence, they have not been examined by the prosecution without any reasonable explanation. Learned counsel also submitted that there is contradiction between the medical evidence and the evidence of the eye-witnesses, who are relations of the deceased and the injured. Therefore, reliance cannot be placed on the ocular evidence of such witnesses while discarding the medical evidence. It is further submitted that it cannot be presumed that different blows have been given on the same spot, and as such, finding of the trial Court, if read with the medical evidence, is not tenable in law. The next submission of the learned counsel for the appellants is that the statements made at the earliest opportunity is to be preferred. As in the F.I.R. lodged by P.W. 1 and in the statement made by P.W. 9 on 5-12-1989 before P.W. 12 the name of accused Dinabandhu does not find place, the trial Court has erred in law in convicting this accused. Added to this, P.Ws. 3 and 4 have not implicated accused Dinabandhu. Learned counsel further submitted that in F.I.R. lodged by P.W. 1, it has been mentioned that P.W. 9 told the informant that accused Naba inflicted the injury on the deceased by a knife and not a Gupti, whereas according to the medical evidence, none of the injuries on the body of the deceased could be caused by knife. Therefore, conviction of accused Dinabandhu, who was allegedly holding a Bhujali, is unsustainable in law. It is further submitted that though it has been found that all materials, seized from the accused persons were stained with human blood of B group, which is the blood group of the deceased, it cannot be presumed that the blood stains found on those materials belong to the deceased and not to the accused persons. The next submission of the learned counsel for the appellants is that the statement of P.W. 4 to the effect that accused Dinabandhu had struck a blow with a lathi on the head of the deceased cannot be believed inasmuch as such a blow would have caused a lacerated wound and not an abrasion as had been found by the doctor. It is also submitted that the spot map prepared by the I.O. is not based on his own enquiry but on the version of prosecution witnesses, and as such is inadmissible in evidence. Lastly, learned counsel for the appellants submitted that in view of the defence version, at best a case under Section 300, Exception IV, IPC can be said to have been established and, therefore, the conviction of the appellants under Section 302, IPC is not tenable.
13. The main thrust of the defence plea is that the witnesses who have testified about the murder and assault are all relatives and that is why interested witnesses and the prosecution has failed to examine independent witnesses like Biju, Chaitanya and others, who were admittedly present at the site of the crime. Therefore, conviction of the appellants is not tenable in law. In support of the aforesaid submission, learned counsel for the appellants cited four decisions, namely, (1) Karnesh Kumar Singh v. State of U.P. AIR 1968 SC 1402 : 1968 Cri LJ 1655; (2) Bir Singh v. State of U.P. AIR 1978 SC 59 : 1978 Cri LJ 177; (3) Benguli v. State of Orissa 1985 Cri LJ 580 (Orissa) and (4) Shaikh Nabab Saikh Babu Musalman v. State of Maharashtra 1993 SCC (Cri) 517 : 1993 Cri LJ 43.
In the case of Karnesh Kumar, (1968 Cri LJ 1655) (supra), the Apex Court affirmed the judgment of the Allahabad High Court confirming the conviction of the accused. In that case, non-examination of certain witnesses was taken as a ground and the Apex Court in para 13 of its judgment (at page 4917 1407) (of AIR): at p. 1660 of Cri LJ held as follows :
…In a case where a large number of persons have witnessed the incident, it is open to him (prosecution) to make a selection. The selection must, however, be fair and honest and not with a view to suppress inconvenient witnesses. Therefore, if it is shown that persons who had witnessed the incident have been deliberately kept back, the Court may draw an adverse inference and in a proper case record such failure as constituting a serious infirmity in the proof of the prosecution case.
In Bir Singh v. State of U.P. AIR 1978 SC 59 : 1998 Cri LJ 177, there was chronic dispute between two factions in the village and persons belonging to one faction had serious animus against the accused persons. The High Court of Allahabad passed an order of conviction of the accused persons on the basis of the evidence of witnesses belonging to that faction holding that even if the statement of such witnesses should be considered with due care and caution, there was no good reason to reject their evidence on the intrinsic merit. In that case, two independent witnesses were named in the F.I.R. who had seen the occurrence, but the prosecution had failed to examine them. In para-9 of the judgment (at page 63) the Apex Court held as follows :-
…It is true that it was not incumbent on the prosecution to examine each and every witness so as to multiply witnesses and burden the record. This rule however does not apply where the evidence of the eye-witnesses suffer from various infirmities and could be relied upon only if properly corroborated. In the instant case all the eye witnesses had serious animus against the accused and they were interested in implicating the accused. The substitution of Ram Dularey Singh in the general diary was a suspicious circumstance. The fact that the police was not able to recover any weapon or to explain how the appellants got hold of the guns was yet another circumstance that required a reasonable explanation from the prosecution. According to the finding of the learned Sessions Judge even the F.I.R. was ante-timed and although the High Court has not accepted this finding we feel that the High Court on this aspect has entered into the domain of speculation. In view of these special circumstances it was incumbent on the prosecution to examine the two witnesses at least to corroborate the evidence and if they were not examined the Sessions Judge was justified in drawing an adverse inference against the prosecution. At any rate it cannot be said that if under these circumstances the Sessions Judge was not prepared to accept the evidence of these witnesses his judgment was wrong or unreasonable. It may be that the High Court could have taken a different view, but that by itself as held by this Court is not a sufficient ground for reversing an order of acquittal.
In Benguli v. State of Orissa 1985 Cri LJ 580 (at page 583), this Court has held as below :-
The evidence of a partisan witness is not to be discarded merely on the ground of partisanship as often enough, where there are factions in a locality and an occurrence takes place, the prosecution may not be in a position to examine independent witnesses. The same was not the case here. The occurrence had taken place in a locality to which P.Ws. 7 and 8 did not belong. Other persons had witnessed the occurrence and some of them had shops nearby. The non-examination of the independent and disinterested persons and the examination of interested ones would certainly cast a serious reflection on the fairness of the trial.
In Shaik Nabab Shaikh Babu Musalman v. State of Maharashtra 1993 Cri LJ 43 (supra), prosecution case was that the deceased and his relatives had inimical terms with the accused persons. There was strained relationship for the last many years. In an earlier case the deceased was sentenced to 10 years R. I. and his brother was sentenced to one year’s R. I. The prosecution relied on the evidence of two eye-witnesses who were relatives of the deceased. The Apex Court in para-6 of its judgment (at pp. 519-520) (for SCC (Cri)) : at p. 44 of Cri LJ held as under:-
Since both the witnesses are highly interested and partisan, their evidence has to be subjected to greater scrutiny.
In this case, it has been clearly indicated that evidence of interested witnesses has to be considered with great caution and requires corroboration either from circumstances or from other evidence.
14. In reply to the above plea, learned counsel for the State cited a decision of the Supreme Court in the case of Ram Lakhan v. State of U.P. 1996 Cri LJ 3469 : AIR 1996 SC 3429. In para-6 of the judgment (at page 3498), it has been held as follows :-
The trial Court principally acquitted all the accused on the ground that the prosecution has not examined the independent witnesses. All the eye-witnesses are close relatives of the accused and, therefore, their evidence is untrustworthy. This reasoning of the Trial Court is ex facie unsustainable. It is well settled that the evidence of close relatives cannot be excluded solely on the ground that they are interested witnesses. In such a situation, it is the duty of the Court to scrutinise the evidence of such witnesses very carefully and if there is any doubt as regards their trustworthiness, the Court may discard their evidence. The High Court, in our opinion, therefore, was fully justified in accepting the evidence of the four eye-witnesses, namely, Jang Bahadur (PW. 1), Bindeshwari (PW 2), Ganga Ram (PW 4) and Devi Dayal (PW 8). The evidence of these eyewitnesses was found acceptable by the High Court, and, therefore, the High Court was fully justified in reversing the order of acquittal.
Learned counsel for the State also relied on another decision of the Supreme Court in State of Rajasthan v. Kishore 1996 Cri LJ 2003 : AIR 1996 SC 3035, wherein the Apex Court has categorically held that irregularities and illegalities committed by the investigating officer will not render the prosecution case untrustworthy. In para 18 of the judgment (at page 2009), it has been held as below :-
It is equally true that the investigating officer P. W. 8 committed grave irregularity in omitting to send the burnt clothes and other incriminating material for chemical examination to lend corroboration to the evidence. Mere fact that the investigating officer committed irregularity or illegality during the course of investigation would not and does not cast doubt on the prosecution case nor trustworthy and reliable evidence can be cast aside to record acquittal on that account. It is seen from the Panchanama recovery of the incriminating material from the scene of offence that there was an attempt to screen the offence by destroying the evidence. Others were prevented from entering the room. That by itself indicates an attempt on the part of the accused to destroy the incriminating evidence and to prevent others from saving the life of the deceased. Therefore, the absence of smell of kerosene oil on the hair sent for chemical examination does not render the dying declaration of the deceased suspect nor would it become unbelievable. The High Court, therefore, has not considered the evidence in the proper and legal perspective but felt it doubtful like doubting Thomas with vacillating mind to accept the prosecution case for invalid reasons and wrongly gave to the respondent the benefit of doubt.
15. In the present case, P. Ws. 3, 4 and 9 have categorically testified and narrated in detail the occurrence and that is corroborated by the seizure of the weapons used in committing the crime and the medical evidence. The defence has not been able to impeach any portion of the evidence of the aforesaid witnesses. Therefore, the submission of the appellants on this count is not tenable. Keeping in mind the relationship of the witnesses with the victim, the trial Court has with due care and caution considered their version which has been corroborated by the medical evidence, seizure of the weapon of offence and other circumstances. In this connection, we would like to place on record what has been stated by this Court in the case of State v. Aru alias Arun Kumar Pradhan (1984) 58 Cut LT 422 : 1985 Cri LJ 161. In para-9 of the judgment (at pp. 429-430) (of Cut LT): 15 pp. 165, 166 of Cri LJ, it has been stated thus :-
Mr. Ray has brought to our notice, that except a self-serving suggestion made by P.W. 2 regarding her enmity with the appellant which has also found a place in the statement recorded by the trial Court, there is no evidence to show that P. W. 2 had any axe to grind against the appellant. Being co-villagers of the appellant, P. Ws. 2, 5 and 6 are natural and competent witnesses. At the time of murderous assault, P. W. 2 was following the accused with ajar to get water. P. W. 5 was feeding his bullocks nearby when he heard the cries raised by the deceased and saw the occurrence, and P. W. 6 was standing near the cow-shed of P. W. 5. There is no reason as to why these three witnesses should be hands-in-glove with the prosecution and falsely invoice the appellant in such a grave crime. True, disinterested evidence is not necessarily true and interested evidence is not necessarily false. It is not always possible for an accused to say as to how and why some witnesses have deposed against him and merely because no reason has been assigned as to why some witnesses have come forward to depose against the accused, their evidence, is not to be glibly accepted. In this connection, reference may be made to the observations of our Lord the Chief Justice of India in Shankarlal Gyarasilal Dixit v. State of Maharashtra AIR 1981 SC 765 : 1981 Cri LJ 325, to the following effect:-
Our judgment will raise a legitimate query : If the appellant was not present in his house at the material time, why then did so many people conspire to involve him falsely? The answer to such questions is not always easy to give in criminal cases. Different motives operated on the minds of different persons in the making of unfounded accusations. Besides, human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions…
In the instant case, however, besides being disinterested witnesses, P. Ws. 2, 5 and 6 have given a clear cogent and consistent version about the occurrence and their version finds support in the evidence of the doctor (P. W. 3) who had noticed injuries on the neck which could be caused by a sharp cutting instrument, as deposed to by the witnesses to the occurrence.
16. The second point urged by the learned counsel for the appellant is that though in the F. I. R. it has been mentioned that appellant No. 2 had used a knife, the evidence on record indicates the weapon as a Gupti. Therefore, there is a variance between the F. I. R. and the evidence of the witnesses. He further urged that though it has been alleged that appellant No. 1 had used a Bhujali/Farsa to hit the deceased, the same is not supported by medical evidence. In view of these discrepancies, according to the learned counsel, the charge has not been brought home to the appellants. In support of his contention, he relied on the following decisions :-
(1) Mohar Singh v. State of Punjab 1981 Cri LJ 998 : AIR 1981 SC 1578
(2) Awadesh v. State of M.P. AIR 1988 SC 1158 : 1988 Cri LJ 1158
(3) Gagan Chandra Pattanaik v. State of Orissa (1989) 2 OCR 692 : 1990 Cri LJ NOC 39 (Orissa)
(4) Jagir Singh v. State of Delhi AIR 1975 SC 1400 : 1975 Cri LJ 1009
In Mohar Singh (1981 Cri LJ 998) (SC) (supra), the ocular evidence was that the accused assaulted the deceased with a spade whereas the medical evidence indicated that the injuries were caused by Kasi (pick axe). According to the learned counsel, because of this glaring inconsistency, the Supreme Court reversed the judgment of the Punjab and Haryana High Court. We, however, find that apart from the above inconsistency with regard to the weapon used in committing the crime, there were other reasons also for reversing the judgment of the High Court, e.g., the dying declaration of the deceased was not attested by the deceased’s wife or the doctor present. Therefore, this decision is of no assistance to the contention raised by the learned counsel for the appellants.
In Awadesh v. State of M.P. 1988 Cri LJ 1158 (SC), the evidence of the eye-witnesses was that when the deceased got the gun-shot injuries, he was at a higher level and the assailant fired the shots from a lower level. But the doctor opined that the person who caused the injuries to the deceased was at a higher level than the deceased. In that case, the medical evidence was preferred and the eye-witnesses were disbelieved.
In Gagan Chandra (1990 Cri LJ NOC 39) (Orissa) (supra), the ocular evidence was that the deceased was assaulted with Bhusa. But the doctor’s statement was that the death was due to the injury on the head which might have been caused by a sharp cutting weapon. In that case, there was only one injury on the deceased and this Court accepted the medical evidence.
In Jagir Singh v. State of Delhi 1975 Cri LJ 1009 (SC), the eye-witnesses stated that the accused fired the shot with his hand bent downwards. But the doctor opined that the hand which fired the shot must have been at a slightly lower level than the part of the body hit by the shot, which means that the barrel of the gun must be pointing upwards. In that case, the medical evidence was preferred to the ocular evidence.
Coming to the case in hand, the discrepancy between the ocular evidence and the F.I.R. is that whereas the witnesses say that the weapon of offence was a gupti, it has been mentioned in the F. I. R. that it was a knife. The medical evidence corroborates the evidence of the witnesses. Inasmuch as the doctor has opined that the deceased succumbed to the Injury which can be caused by a gupti. It is also the common knowledge that gupti is nothing but a two-edged knife which can be kept inside a cover. So, the slight difference between the F. I. R. and the evidence of the eye-witnesses does not in any way affect the prosecution case. The decisions cited by the learned counsel for the appellants have no application to the present case.
17. The next point urged is that though the witnesses have stated that accused Dinabandhu has dealt the fatal blow on the chest of the deceased by Bhujali, the same is not supported by medical evidence. In reply, learned State counsel relied on a decision of the Supreme Court in Punjab Singh v. State of Haryana AIR 1984 SC 1233 : 1984 Cri LJ 921, wherein the Apex Court has held that where there is discrepancy between the direct testimony and the medical evidence, the direct testimony of the witnesses shall prevail over the medical evidence. He also relied on the decision of this Court in Arun Kumar Pradhan (1985 Cri LJ 161) (supra), wherein it has been held as follows (at page 431) (of Cut LT) : at p. 165 of Cri LJ :-
Much advantage has been sought by the defence of a statement made by the doctor that death had taken place about forty hours prior to his post-mortem examination which had been conducted at 4.25 p.m. on the 20th January, 1983 and it has been contended that accepting the medical evidence in this regard, the occurrence had taken place some time during the night of the 18th/19th January, 1983 and not at about 10 a.m. on the 19th January, 1983, as sought to be established by the prosecution. We are not impressed by this argument as it would not be possible for a doctor to say with mathematical precision as to when actually the death had taken place prior to the autopsy and merely because he has not, in terms stated that death had taken place within forty hours, the evidence of P. Ws. 2, 5 and 6 that they had witnessed the occurrence at about 10 a.m. on the 19th is not to be brushed aside. As has been observed and held by the Supreme Court recently in the case of Punjab Singh v. State of Haryana, if direct evidence is satisfactory and reliable, the same cannot be rejected on hypothetical medical evidence.
18. With regard to the evidentiary value of medical evidence, learned State counsel cited a decision of the Supreme Court in Anant Chinataman Lagu v. State of Bombay AIR 1960 SC 500 : 1960 Cri LJ 682, wherein it has been held (para 68) :-
Circumstantial evidence in this context means a combination of facts creating a net work through which there is no escape for he accused, because the facts taken as a whole do not admit of any inference but of his guilt. To rely upon the findings of the medical man who conducted the post-mortem and of the chemical analyser as decisive of the matter is to render the other evidence entirely fruitless. While the circumstances often speak with unerring certainty, the autopsy and the chemical analysis taken by themselves may be most misleading. No doubt, due weight must be given to the negative findings at such examinations. But, bearing in mind the difficult task which the man of medicine performs and the limitations under which he works, his failure should not be taken as the end of the case, for on good and probative circumstances, an irresistible inference of guilt can be drawn.
19. Learned counsel for the appellants then urged that some of the eye-witnesses have not stated about the lathi blow being inflicted on the deceased by accused Dinabandhu. The fact that the deceased had received a lathi blow is also not supported by medical evidence. Similarly, the story of Farsa/Bhujali blow has only been spelt out by P. W. 9 in his subsequent statement, which is not supported by medical evidence. Benefit of these factors should be given to appellant Dinabandhu.
From the discussion made above, it is seen that there is no dearth of evidence regarding the motive of Dinabandhu in inflicting fatal blows on the deceased. He also handed over the Gupti to Nabakishore with a direction to push it into the body of the deceased. What the witnesses have stated is that accused Dinabandhu inflicted blows on the deceased with Farsa and lathi. To what extent the Farsa pierced or how severe the lathi blow was has not been stated by such witnesses. Therefore, there is absolutely no discrepancy between the ocular evidence and the medical evidence and the evidence of the eye-witnesses cannot be brushed aside.
20. The most important point urged by the learned counsel for the appellants is that there is omission of material facts in the F.I.R. which affects the credibilty of witnesses. In support of this submission, he relied on a decision of the Supreme Court in Ram Kumar Pande v. State of M.P. AIR 1975 SC 1026 : 1975 Cri LJ 870. In that case, the F.I.R. was lodged by the father of the boy who was murdered, to whom all the important facts of the occurrence were communicated by the eye-witnesses. But, he had not mentioned in the F.I.R. that the accused inflicted the blow on the deceased. The Supreme Court in para 9 of the judgment (at page 1028) held that omission of such important facts affecting the probabilities of the case is relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case. In the present case, F.I.R. was lodged by P.W. 1 who is a post-occurrence witness. He has stated in the F.I.R. that he gathered from his seriously injured uncle (P.W. 9) that accused Nabakishore had assaulted the deceased Babula. Nabakishore also inflicted blows on P.W. 9. Seeing Babula dead and P.W. 9 in serious condition, he (P.W. 1) proceeded to lodge the F.I.R. In the said F.I.R., there is no mention of accused Dinabandhu inflicting any blow, as has been averred by other witnesses.
21. In reply to the aforesaid submission, learned counsel for the State submitted that P.W. 1 has only mentioned those facts in the F. I. R. which he has told in a hurry. According to him, detailed facts need not be mentioned in the F. I. R. In support of his contention, he relied on the decisions of the Supreme Court in State of U.P. v. Bhagwant Kishore Joshi AIR 1964 SC 221 : 1964 (1) Cri LJ 140; State of U.P. v. Nahar Singh 1998 Cri LJ 2006 : AIR 1998 SC 1328; and Apren Joseph v. State of Kerala AIR 1973 SC 1 : 1973 Cri LJ 185.
These decisions clearly indicate that absence of detailed facts in the F. I. R. is not fatal to the prosecution case.
22. Learned counsel for the appellants then urged that though P. W. 9 has stated that two blows were given on the chest of the deceased – one by accused Dinabandhu by means of Bhujali and the other by accused Naba by means of Gupti, the doctor has found only one injury on the chest of the deceased. The prosecution has not been able to explain this. In support of the aforesaid submission, learned counsel relied on a decision of the Supreme Court in the case of Purusottam v. State of M.P. AIR 1980 SC 1878 : 1980 Cri LJ 1298, wherein the allegation was that three persons had assaulted the deceased with sharp edged weapons, but only one injury was found. The Apex Court held that it is not possible that all the assaults would be made with such precision and exactitude so as to cause one injury. He also relied on a decision of this Court in Gagan Ch. Pattanaik v. State of Orissa 1990 Cri LJ NOC 39 (Orissa), wherein the prosecution witnesses stated that two persons had assaulted the deceased. But the medical evidence indicated about only one injury on the body of the deceased. It was held by this Court that allegation of two persons inflicting injury on the deceased does not inspire confidence.
23. In reply, learned State counsel brought to our notice a decision of the Supreme Court in Hare Krishna Singh v. State of Bihar AIR 1988 SC 863 : 1988 Cri LJ 925, wherein it has been held that there is no obligation or necessity on the part of the prosecution to explain all injuries when the prosecution comes with a definite case that offence has been committed by the accused and proves its case beyond any reasonable doubt. In the present case, there is no doubt that prosecution has come out with a definite case and proved its case beyond reasonable doubt. Therefore, there is no necessity to explain each and every injury on the body of the victim.
24. Learned counsel for the appellants then submitted that the prosecution has not been able to explain the injuries on the body of accused-appellant Naba. As against the aforesaid submission, learned counsel for the State has relied on a decision of the Supreme Court in the case of Jagdish v. State of Rajasthan AIR 1979 SC 1010 : 1979 Cri LJ 888, wherein it has been held that, it is the duty of the prosecution to explain the injuries on the person of the accused provided that such injuries are serious and severe and not superficial and the injuries must have been caused at the time of the occurrence in question. In the present case, injuries found on the person of accused Naba have not been opined as serious by the doctor. It has also not been proved that they were caused during the course of the occurrence. Therefore, there is no obligation on the prosecution to explain such injuries.
25. The last point urged by the learned counsel for the appellants is that at best the case any be brought within the purview of Section 304, Part-II, I.P.C. and not Section 302, I.P.C. In support of this contention, learned counsel relied on the decision of the Supreme Court in the case of Hem Raj v. The State (Delhi Administration) AIR 1990 SC 2252 : 1990 Cri LJ 2665. In that case, accused inflicted a single stab landing on the chest of the deceased and the occurrence had taken place on the spur of the moment and in the heat of passion upon a sudden quarrel. It was, therefore, held that the offence was punishable under Section 304, Part-II. I.P.C. and not under Section 302, I.P.C. He also relied on a decision of this Court in Rama Chandra Jena v. State of Orissa (1990) 32 OJD 16, wherein the Court came to the conclusion that action of the accused appears to be more as a result of sudden impulse than of deliberate intention to murder as the entire incident had arisen at a time of mutual tussle between the parties in course of which one of the accused (since acquitted) brought a knife and handed it over to the other who gave a push on the chest of the deceased. In this background, the accused who pushed the knife was found guilty under Section 304, Part-II, I.P.C.
26. In the present case, however, prosecution has established its case through its witnesses that just before the incident, accused persons had called the deceased for settlement of differences. It has also been proved that three days prior to the occurrence, there was theft of a foul from the house of the deceased, who suspected the hand of the accused persons behind the same and lodged an F. I. R. against them under Section 379, I. P. C, which enraged the accused persons. This indicates a strong motive of the accused persons for committing the crime. Therefore, the decisions relied on by the learned counsel for the appellants have no application to the facts of the present case.
27. In this connection, learned State counsel has brought to our notice a decision of the Supreme Court in Suresh Chandra Bahri v. State of Bihar AIR 1994 SC 2420 : 1994 Cri LJ 3271 wherein it has been held that sometimes motive plays an important role and becomes a compelling force to commit a crime and therefore, motive behind the crime is a relevant factor for which evidence may be adduced. A motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act but with illegal means with a view to achieve that intention. In a case where there is clear proof of motive for the commission of the crime, it affords added support to the finding of the Court that the accused was guilty for the offence charged with. But, the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable because most often it is the perpetrator of the crime alone who knows as to what circumstances prompted him to a certain course of action leading to the commission of the crime.
28. In the present case, for the alleged theft committed by the accused persons, F.I.R. was lodged three days earlier. According to P. W. 9, the accused persons, had threatened the deceased with dire consequences if settlement was not done. On the fateful day, accused Dinabandhu gave a gupti to accused Naba who inflicted fatal blows on the deceased. He also inflicted injuries on P. W. 9. Thus, the motive of the accused persons and the common intention shared by them have been amply proved. Therefore, the alternative submission that the appellants can at best be convicted under Section 304, Part-II, I.P.C. is not sustainable. We are of the view that the trial Court has rightly convicted both the accused persons under Section 304/34 and Section 326/34, I.P.C. for murdering de-ceased Babula and causing grievous hurt to Binayak (P. W. 9).
29. In this connection, we would also like to place on record the principle enunciated by the Supreme Court in Virsa Singh v. State of Punjab AIR 1958 SC 465 : 1958 Cri LJ 818. The Supreme Court held (paras 12 and 13):
The prosecution must prove the following facts before it can bring a case under Section 300 thirdly
First, it must establish, quite objectively, that a bodily injury is present;
Secondly, the nature of the injury must be proved. These are purely objective investigations.
Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.
Once these three elements are proved to be present, the enquiry proceeds further and;
Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.
Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under Section 300 thirdly. It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced, that the injury was accidental or otherwise unintentional.
30. Applying the aforesaid tests to the present case, there is no escape from the conclusion that the accused persons caused grievous injuries on Babula, who succumbed to death. They also caused grievous hurt to Binayak (P. W. 9).
31. As regards common intention, we would like to quote below the observation of the Supreme Court in Rishideo Pande v. State of Uttar Pradesh AIR 1955 SC 331 : 1955 Cri LJ 873 (Para 2) :-
The common intention referred to in Section 34 proposes a prior concept, a pre-arranged plan, i.e., a prior meeting of minds. This does not mean that there must be a long interval of time between the formation of the common intention and the doing of the act. It is not necessary to adduce direct evidence of the common intention. Indeed, in many cases it may be impossible to do so. The common intention may be inferred from the surrounding circumstances and the conduct of the parties.
The Supreme Court also held :-
After all, the existence of a common intention said to have been shared by the accused persons is, on ultimate analysis, a question of fact. Where, therefore, the inference of fact drawn by the Sessions Judge, from the facts and circumstances appearing on the record of a case and which is accepted by the High Court cannot be said to be improper or that those facts and circumstances are capable of any innocent explanation. The Supreme Court will refuse to hold, on the facts and circumstances of such a case, that there is any misapplication of Section 34, Penal Code.
32. Blood was found on the clothes of the accused persons and on the weapons of assault. On examination, it was found that the same tallied with the blood group of the deceased. Learned counsel for the appellants urged that this is not enough because the blood group of the accused persons was not determined. In support of his submission, he relied on a decision of this Court in State of Orissa v. Taka Bijaya Kumar (1990) 1 OLR 118, wherein it has been held that finding of blood on the shirt of the accused, which is similar to that of the deceased, is not convincing in the absence of evidence regarding the blood group of the accused. In reply, learned counsel for the State brought to our notice another decision of this Court in Titu alias Biswajit Patnaik v. State of Orissa (1999) 17 OCR 564. In paragraph 14 (at page 570) of the judgment, this Court has held as follows :-
In course of investigation P. W. 15, the Investigating Officer seized two dhoties on being produced by the appellant which were stained with human blood. Those dhoties along with the rexin of the vehicle stained with blood were sent for chemical examination and, as borne out from the Chemical Examination Report (Ext. 18) human blood of group B which was the blood group of the deceased could be noticed in them. So, the find of human blood of Group B, the blood group of the deceased, in the dhoties of the appellant is a clinching circumstance which corroborates the prosecution case. On an evaluation of the evidence, as discussed above, we concur with the findings of the trial Court that on the fateful day the appellant stabbed the deceased with a knife which ultimately resulted in his death.
Bijay Kumar’s case (supra) is clearly distinguishable, on fact. But Biswajit Pattanaik’s case (supra) is more appropriate to be applied. In our opinion, non-examination of the blood group of the accused persons does not reflect on the ultimate conclusion arrived at by the trial Court.
33. In view of the aforesaid discussions, we are of considered opinion that the finding of guilt and conviction of both the accused persons by the trial Court under Section 302/34, I.P.C. for committing the murder of the deceased Babu and under Section 326/34, I.P.C. for causing grievous injury to Binayak (P. W. 9) is based upon proper evaluation of evidence and the attending circumstances. We are, therefore, not all inclined to interfere with the same.
34. In the result, the appeal fails and is accordingly dismissed. The order of the trial Court is confirmed.
P.K. Mohanty, J.
35. I agree.