JUDGMENT
P.K. Patra, J.
1. Six appellants in the first appeal and three appellants each in the other two appeals, have challenged the judgment dated 23-12-1991 passed by Sri D.L.C.K. Patnaik, Sessions Judge; Balasore in S. T. No. 121 of 1990 convicting the appellants under sections 148/302, Indian Penal Code (for short “I. P. C.’) and sentencing each of them to undergo rigorous imprisonment for three years under the first count and imprisonment for life under the second count. Five of the co-accused persons of the appellants have been acquitted.
2. The prosecution case, briefly stated, is as follows :
In the night of 14-5-90 the deceased, his brother (p. w. 1) who is the informant in this case, and their family members attended the marriage ceremony of their niece (sister’s daughter) in village Darsinghpatna which is at a distance of about one kilometre from their village-Nadigaon (Kanpur) under Sore Police Station in the district of Balasore. After the marriage ceremony, p. w. 1 returned to his village to guard his house whereas other family members stayed there during the night. On the next morning (15-5-90) at about 5.30 a. m. the deceased returned to his village in his scooter with his daughter (p. w, 6) and nephew (p. w. 3) and at the crossing of the Soro-Kupari Road, from where a kutcha road leads to the village Nadigaon, the deceased stopped his scooter and asked p. ws. 3. and 6 to get down from the scooter to pluck flowers for worshipping God and to come to their house, which is not far off from that place. It is alleged by the prosecution that while the deceased was pushing his scooter on the muddy kutcha road, the appellants and five co-accused persons who are named in the First Information Report and ten to twelve others, not named in the F. I. R., armed with lethal weapons like ‘tenta’, ‘balam’, crowbars, iron-roads, ‘tangia’ sword and stick attacked the deceased and pushed him inside the water of a ‘nala’ with his scooter. P. ws. 3 and 6 rushed to the house and informed p. w. 1 about the same and
p w. 1 came to the spot accompanied by p. ws. 3 and 6. P. w. 1 found that the appellants and the co-accused persons were mercilessly assaulting the deceased with the weapons held by. them, after bringing out the deceased from water by spreading a fishing-net. When the informant protested, he was also assaulted by appellant Balakrishna Mallick on bis right leg with a balam-stick and by appellant Shyam Jena on his left arm by means of a balam-stick. When the informant raised hullah, witneeses arrived there and thinking that the deceased was dead, the miscreants left the place. The deceased was removed to the Soro hospital in a rickshaw where the Medical Officer declared him ‘dead’. Thereafter p. w. 1 went to the Soro Police Station and orally repotted the occurrence before p. w. 8, the Sub-Inspector of the said Police Station who was in-charge of the Offier-in-charge of the Police Station, and p. w. 8 reduced the oral report to writing, registered the case and took up. investigation. During investigation, p. w. 8 examined the informant, went to the Soro hospital, held inquest over the deadbody of the deceased and sent the same for post-mortem examination. He also sent requisition for medical examination of p. w. 1 who had sustained injuries on his leg and hand. P. w. 8 examined some witnesses at the hospital. He visited the spot, seized the scooter in a damaged condition, fishing net (M. O. I.) and the blood stained earth under the seizure list, Ext. 3, gave the seized scooter in zima of p. w. 1. At 2.00 p. m., p.w. 9 the Circle Inspector of Police, Balasore” took over charge of investigation from p. w. 8, visited the spot and examined the witnesses. On the same date at 7.00 p. m. he arrested the appellant, Harihar Panigrahi and Ramaachandra Panda from their houses and searched the houses of the accused persons for recovery of the weapons of offence; but in vain. He also searched for the other accused persons; but in vain. On 16-5-90 he forwarded the accused persons to court in custody. On 24-5-90 he arrested the accused persons Balakrishna Mallick, Jayanta Swain, Kamala Panda and forwarded them to court in custody on the same date. On 24-6-90 he directed the Assistant Sub-Inspector of Police (P. C. Bal) of Soro Police Station
to seize the command certificate and the wearing apparels of the deceased after the post-mortem examination, M. O. II is the full pant and M O. III is the half shirt (which had been put on by the deceased at the time of occurrence) have been seized after the post-mortem examination. The Judicial Magistrate, First Class, Soro, on the prayer of the Investigating Officer (p. w. 9). sent the half-shirt (M.O. III) of the deceased and bloodstained earth for chemical examination. On 27-7-90. on his transfer to Baripada, p. w. 9 made over charge of investigation to his successor who completed the investigation and submitted charge-sheet against the appellants and five others who stood their trial. While the twelve appellants were found guilty of the charge and convicted, the other five co-accused persons were found not guilty and were acquitted by the learned Sessions Judge.
3. The plea of the defence is one of denial and false implication.
4. In order to bring home the charge against the appellants, prosecution has examined nine witnesses, out of whom, p. w. 1 is the informant and p. w. 3 is the minor son of the informant aged about ten years, whose statement has not been recorded as he was found by the trial Judge, to be incapable giving rational replies to the questions put to him. P. w. 6 is the daughter of the deceased. P. ws. 2, 4 and 5 are eye-witnesses to the occurrence. P. w. 7 is the Medical Officer who conducted the post-mortem examination over the deadbody of the deceased. P. ws. 8 & 9 are the two Investigating Officers. The defence has examined none in support of its case.
5. Learned counsel for the appellants and the learned Additional Government Advocate were heard at length. Learned Counsel for the appellants challenged the judgment of the learned Sessions Judge contending that the learned Sessions Judge has erred in fact and law and as such the impugned judgment cannot be sustained. The learned Additional Government Advocate supported the impugned judgment contending that the same is unassailable. The rival contentions require careful consideration.
6. The learned Sessions Judge placed reliance on the statements of the eye-witnesses (p. ws. 1,2,4,5 and 6) and found the twelve appellants guilty of the charge while the five other co-accused persons were found not guilty of the charge, The Medical Officer (p. w. 7) held post-mortem over the deadbody of the deceased and found the following injuries :
External (i) one incised injury 1/2"' X 1/2" on the right maxillary process; (ii) one incised injury size 2" X 2" X 2" on the right upper arm on the lateral surface; (iii) lacerated injury 2" X 2" X 2" on scene of right tibia bone, at middle; (iv) lacerated injury, size 4" X 2" x 2" with a fracture of right tibia and fibula, 6" above the ankle joint; (v) incised injury, siza 4" X 2" X 2" below the left knee joint; (vi) incised injury, 1" X 1/2" X 1/2" on the left fore-arm; and (vii) lacerated injury, 1" X 1" x 1" on the left fore-arm at the middle part.
On dissection, it was found that the injury on the face was corresponding to injury No. (i) and found compound fracture of left tibia, with lacerated injury, 4″ X 2″ X 2″. In his opinion, the injuries were antemortem in nature. He further opined that the injuries were sufficient to cause death in ordinary course and the death of the deceased was due to shock and haemorrhage resulting in multiple injuries on his left and right legs. Ext. 4 is the post-mortem examination report.
7. From the medical evidence on record, it is evident that the death of the deceased was homicidal in nature. It appears from the reports of chemical examiner and the Serologist (Exts. 7 and 7/1 respectively) that the Investigating Officer sent the seized half-shirt (M. O. III) for examination in which though human blood was found, no opinion regarding the blood group was given due to deterioration. The seized pant (M. O. II) has not been
sent for examination and no reason has been given by the Investigating Officer as to why the seized pant was not sent for examination by the chemical examiner and the Serologist. The forwarding report of the J. M. F. C., Soro (Ext. 6) also shows that the pant has not been sent for examination by the chemical examiner and the Serologist. Though it is alleged by the prosecution that the appellants and other co-accused persons were armed with lethal weapons at the time of occurrence, not a single weapon of offence has been recovered from any of the appellants and the search of their houses was futile, as stated by the Investigating Officer (p. w. 9). From any of them, no other incriminating material has been seized.
8. The informant (p. w. 1) has named the seventeen accused persons who stood their trial in the F.I.R. (Ext. 1) which was lodged immediately after the occurrence. In the F.I.R. he has stated that the accused persons were armed with different weapons like Balam, stick, sword, iron-rod, axe, crowbar, etc. without specifically mentioning the arms held by each accused, but in his statement in court he has specified the weapon held by each of the seventeen-accused persons and has stated the twelve appellants assaulted the deceased; whereas the five accused persons who have been acquitted in the case were standing nearby. P. ws. 2, 4 and 5 have also stated regarding the weapon held by the appellants as also the acquitted accused persons. But p. w. 6, the daughter of the deceased, has not specified the weapons held by each of the appellants and the other accused persons, though she stated that they were armed with lethal weapons like Balam, sword, crow-bar etc. She has stated that appellants Sana Mallik, Mangal Sethi and Babu Jena were standing on the village road and appellant Sana Mallik obstructed the deceased while appellant Mangal Sethi caught hold of the deceased and all the three appellants pushed the deceased with the scooter into the water of the river. She has further stated that appellant Babu Jena spread a fishing net on the deceased and ten others aimed with lethal weapons came to the spot and seeing them she (p w. 6) and p. w. 3 ran away to
their house and informed p. w. 1 about the occurrence rushed to the spot accompanied by p. ws. 3 and 6. Placing reliance on the above evidence, the learned Sessions Judge found the appellants guilty and convicted them while he found not guilty the other five accused persons and acquitted them.
9. P. w. 1 has stated that the deceased sustained three injuries on his head due to the assault by the culprits, but there was no bleeding injury and he could not say which of the culprits inflicted the injuries on the head of the deceased. But the Medical Officer (p. w. 7) found no injury on the head of the deceased as per the post-mortem examination report (Ext. 4). P. w. 1 has stated that he got his report scribed by one person, whom he could not name, outside the police station and presented the same before p. w. 8 at the police station, but at the same time he has stated that the F.I.R. (Ext. 1) scribed by p. w 10 at the police station is the said report submitted by him and he has identified his signature (Ext. 1/1) on Ext. 1. But p. w. 8 has stated that p. w. 1 did not submit any written report before him, but orally reported the occurrence to him at the ‘police station which was reduced to wtiting as per Ext. 1 and the contents of Ext. 1 were read over and explained to p. w. 1 who admitted the same to be correct and put his signature on Ext. 1. The learned counsel for the appellants contended that the F.I.R. (Ext. 1) has been subsequently manufactured by the investigating officer and the original F.I.R. lodged by p. w. 1 has been suppressed since that did not suit the prosecution to implicate the appellants and hence the prosecution case against the appellants and their co-accused persons is doubtful and cannot be accepted to be true. It was further contended that though seventeen accused persons had been named in the F.I.R. and eight to ten others stated to be present at the spot have not been named and it was alleged that they were the assailants of the deceased, p. ws. 1, 2, 4, 5 and 6 have not stated anything about the presence of those eight to ten other persons not named in the F. I. R. .
10. The learned counsel for the appellants contended that the prosecution case against the appellants is suspicious and
in Support of his contention he has placed reliance on the decision in Balgopal Panda and others v. State, reported in 70(1990) C. L. T. 1, wherein it has been held :
“In consideration of the aforesaid fact and evidence, the court do not hesitate to hold that the true first report submitted by p. w. 1 was suppressed by the prosecution. Had it been treated as F.I.R. and produced during trial, the story narrated in it would have been unfavourable to the prosecution. Therefore, while it was managed that it would not see the light of the day, a fresh information which suited the prosecution, but not revealing the true incident, was brought into being. In such circumstances, it would be reasonable to infer that the first information report cantained a tainted, embellished and exaggerated story, but not the true one.”
It was further held in that case that while there is conflict between the medical evidence and the ocular version and the evidence of the eye-witnesses to the occurrence did not state the truth, concealed some incident and gave exaggerated version which is believed by the prosecution evidence itself, there is no other way than to prefer the medical evidence and reject the. ocular version. The above view is supported by A.-I.R, 1983 S.C. 484 (Solanki Chimanbhai Ukabhai v. State of Gujarat) and 31 (1989) O.J. D. 14 (Cri.) (Makarananda alias Malkham Saher and another v. State).
11. Learned counsel for the appellants further contended that when there are omissions in the F. I. R, as to the part played by 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 support of this contention, he has placed reliance on the decision reported in 1974 Cr. L. R. (S. C,) 36 (Laxman and others v. State of Maharashtra).
12. Learned counsel for the appellants has also further contended that omission amounts to contradiction creating serious doubt about the truthfulness of the witnesses and when
the witnesses during the trial made material improvement to make their evidence acceptable, it would be difficult to rely on their evidence. In support of- the above contention reliance has been placed by him on the decisions in 1998 S.C.C. (Crj.) 1605 (State of Rajasthan v. Rajendra Singh) 1971 S.C.C. (Cri.) 684 (Yudhistir v. State of M. P,) and 1986 Crimes (Vol. I) 675 (Harihar Ray and others v. State of Orissa).
13. Learned counsel for the appellants contended that since the deceased was involved in several cases including a case under section 307, I. P. C. as deposed by the investigating officer (p. w. 9) and several documents have been exhibited on that score, the possibility of any other croup hostile to the deceased assaulting him cannot be completely ruled out. In support of this contention attention was drawn to the statement of the medical officer (p. w. 7) that injury Nos. 2. 5 and 6 cannot be caused by weapons like Balam, sword and Tenta, injury No. 1 cannot be caused by Balam or sword and injury Nos. 3, 4 and 5 have been caused by violent fall on hard and blunt surface and that none of the injuries found on the body of the deceased was caused on any vital organ of the deceased and when the medical evidence rules out the possibility of the injuries in the manner deposed to by the prosecution witnesses, the ocular testimony cannot be relied upon. In support of this contention he has placed reliance on the decision reported in A. I. R. 1975 S. C. 1727 (Ramanath v. State of Punjab), It was further contended that when the prosecution witnesses are interested related and partisan and their evidence is intrinsically improbable and unreliable, it would be hazardous to convict the accused persons. In support of this contention reliance has been placed on the decision reported in 1983 Crimes (Vol. I) 131 (Ram Ashrit Ram v. State of Bihar)
14. Besides the above contentions, learned counsel for the appellants pointed out the following disquietening features in the case at hand. Though the full pant (M. O. II) and half shirt (M. O. III) of the deceased were seized after the postmortem examination, the full pant was not sent for chemical
and serological examinations as is evident from Exts. 6, 7 and 7/1, and the said full pant and shirt would have cut marks if sharp cutting weapons like sword, Tenta and crowbar would have been wielded to inflict injuries on the daceased. But there is no evidence to show that M. Os. II and III contained cut marks. There is no mention in the F.I.R. that a fishing net had been spread and the deceased was brought out from the water and was again assaulted and hence the possibility of introducing the fishing net subsequently cannot be ruled out and it also appears to be improbable that after pushing the deceased into the water of the river the culprits would have used the fishing net to rescue him from water instead of leaving him inside the water if at all they wanted to do away with the life of the deceased,
15. The contentions of the learned counsel for the appellants have great force in view of the infirmities and inconsistencies found in the statements of the eye-witnesses to the occurrence, i. e. p. ws. 1, 2, 4, 5 and 6.
16. In a murder case, the court has to be satisfied not of the probabilities, but of the certainty beyond any reasonable doubt that the accused is guilty. In a case of murder, prosecution has to establish the guilt of the accused by ‘ leading clear, cogent, and consistent evidence which should be of unimpeachable-character. In the case of State of Punjab v. Sucha Singh, reported in 1973 Cri. L. R. (S. C.) 393, when there were infirmities in the prosecution evidence and the witnesses examined by the prosecu-tion were interested and their evidence was such upon which implicit reliance could not be placed, it was held that interference was not called for in the acquittal of the accused. Further, in the case of Salveraj v. State of Tamil Nadu repotted in A. I. R. 1976 S. C. 1970, it was held that when the evidence led on behalf of the prosecution was wholly unsatisfactory and it could not be regarded as sufficient to find the conviction of the appellant for the murder of the deceased, the appellant was entitled to an acquittal.
17. Keeping in view the decisions referred to above and on an analysis of the evidence on record, the inevitable conclusion of the learned Sessions Judge that the appellants committed
rioting being armed with deadly weapons and that they committed murder of the deceased in furtherance of their common object cannot be sustained and is liable to be set aside and the appellants’ conviction under sections 148 and 302/449, I.P.C. cannot be upheld and they will be entitled to acquittal.
18. In the result the three Criminal Appeals are allowed. The conviction of the appellants under sections 148 and 302/149, I.P.C. and the sentences passed thereunder by the impugned judgment dated 23-12-1991 of the learned Sessions Judge, Balasore in Sessions Trial No. 121 of 1990 are set aside. The appellants are found not guilty of the charge and are acquitted. The appellants who are in jail custody be set at liberty forthwith if their detention is not required in any other case and the bail-bonds of the appellants who are on bail be discharged.
R.K. Patra, J.
19. I agree.
20. Crl. appeals allowed.