JUDGMENT
R.C. Patnaik, J.
1. Petitioner No.1, Janardan Panda stood trial for commission of offence under Sections 304, 330, 109, 342, 201 and 218 of the Indian Penal Code and petitioner No 2 Daridaparti Mahakud stood trial for commission of offence under Sections 304, 390, 342 and 201 of the Indian Penal Code in an occurrence that occurred at Deogarh Police Station on 3-8-1979. Petitioner No. 1, Janardan Panda was convicted under Section 218 of the Indian Penal Code and was sentenced to pay a fine of Rs.1,OO0/-, in default to undergo rigorous imprisonment for four months. Petitioner No. 2, Dandapani Mahakad was convicted under Sections 330 and 201 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 500/- in default, to undergo rigorous imprisonment for four months, for commission of offence under Section 330 of the Indian Penal Code and to undergo rigorous imprisonment for six months commission of offence under Section 201 of the Indian Penal Code (both the sentences to run concurrently) by the judgment of the Assistant Sessions judge, Sambalpur, in Sessions Trial No. 61(4)/S. of 1980. Both the petitioners were acquitted of the other charges, in appeal. The Additional Sessions Judge confirmed their conviction and the sentences imposed in Criminal Appeal No. 78 of 1980. Hence this revision.
2. There was a theft in the temple of the Raja (so-called) of Deogarh. The Officer-in-charge (P.W.9) directed the petitioners to make an investigation. The petitioners went to the village of Dabananda, who was a field servant of the Raja. On 3-8-1978 they made a search of the house of Debananda and seized certain articles Debananda was brought to the police station around 2 p.m. As the Officer-In-Charge was engaged in the investigation of a dacoity case in connection with which the Superintendent of Police was to visit the Police Station for supervision, he directed the petitioner No 2, Dandapani Makakud to take up further follow up action. Around 3 p.m., Banamali, a brother of Debananda arrived at the police station with food for his brothers After taking food Debananda .requested his brother to ask his family members to bring him some clothes. Around evening his wife and others reached the police station. They were informed that Debananda had gone out to ease himself. Till mid night when he did not return, they left the police station and went out in search of him However, Debananda was not traced. Sometime in the evening, the Secretary to the Raja (P.W.6) informed at the police station that Debananda was not involved in the temple theft case and the articles recovered from his house were given to him by the Rani (so-called) and he should be let off. He was informed around 9 pm. that Debananda had left the police station. On the 4th also there was no trace of Debananda. On the 5th morning Debanandas dead body was found floating in the Municipal Gohiri Bandha situated a little distance behind the police station. One end of a napkin had been tied around the body and the other end of the napkin was tied to a stone An Executive Magistrate conducted the enquiry. There was a public clamour and the matter was entrusted to the Crime Branch for investigation post mortem examination ruled out death by hanging, or strangulation, or drowning Having regard to the undigested particle of food inside the stomach, the time of death was fixed around evening.
3. In course of investigation one Home Guard came forward as an eye-witness to the assault on Debananda in the police station and certain circumstances implicating the petitioners came to light and the petitioners were placed under trial 19 witnesses were examined on behalf of the prosecution. The petitioners in defence did not examine any. Upon consideration of the evidence of the eye-witness (P.W.3), the medical evidence and the circumstantial evidence, the trial Court held that petitioner No.1 had made a false station diary entry with a view to saving himself and the other co-accused from punishment and convicted petitioner No.1 accordingly. It did not find the other charges proved. As regards petitioner No.2, it found that petitioner No. 2 had thrown the dead body in the tank with the intention of screening the offender. The other charges were held not to have been established. The appellate Court believed the eye-witness and accepting the other circumstances, confirmed the findings of the trial Court.
4. No question of law is involved in this revision. The case rests purely on appreciation of evidence and circumstances. The Courts below have concurrently believed the eye-witness (P.W.3) despite taking note of the alleged discrepancies, improbabilities and contradictions in his version. In fact both the Courts below have undertaken a lengthy discussion of the evidence to reach their conclusions. Ordinarily, in revision, such findings which rest purely on appreciation of evidence, are not open to challenge. This Court does not ordinarily enter upon a fresh appraisal of the evidence unless the findings are alleged to be perverse or contrary to law. However, Mr. R. Mohanty, the learned counsel for the petitioners, has strenuously argued for re-appraisal of the evidence. He has sought to draw my attention to some infirmities in the evidence which, according to him rendered the evidence unacceptable. He has urged that having regard to the conduct of the prosecution witness No.3 the alleged-eye-witness, his delayed disclosure (after 20 days), the weakness in his evidence, he was not a witness of truth. He has urged that having regard to the fact that it was evening and the electric supply had been cut off and the doors of the police station were ajar, the witness could not have seen what was happening inside, if in fact he did came to see through the doors which, according to the witness, were completely closed but there was a gap of four inches in between. The witness admitted in his statement before the Magistrate that the inside was not visible. The learned counsel has submitted that it was evening. When there was no light, the assertions of the witness that he witnessed the assault on Debananda by petitioner No 2, was unbelievable. The Courts below have adverted to the that the witness fold before the Magistrate .The inside of the room was not clearly visible. Hence this argument falls to the ground. It has been urged that P.W 3, had been to the fields and he could not have been present at the police station at the time he claimed to be. Having regard to the mental calibre of the witness, we cannot expect that he was deposing at that time with mathematical precision. It was an early August evening There would be visibility still around 6 pm Even if the sun had set, visibility would still be there for sometime until complete darkness enveloped.
The next aspect that is urged is his unusual conduct, namely, If realy he witnessed the occurrence, there was no protest by him or that he did not cry out. It should not be forgotten that he was a petty Home Guard, not in regular service, and had come to the police station to ascertain if he could be engaged by the officer in- charge on the next day so that he could earn Rs. 5/- by performing Home Guard duty. He, in his cross-examination, has stated that assault in the police stations was not in unusual affair. Hence, having regard to his status and the environment, no criticism can be made of his indifference. Besides, be was a witness to the assault. Debananda was not done to death before his eyes. Petitioner No. 2 was alleged by him to have dragged Debananda by the tuft of his hair and given a few kicks in his waist.
The other criticism levelled against his evidence is that he did not disclose the fact for about 20 days The Courts below have also adverted to this aspect and have seen no infirmity in his conduct. The status in the hierarchy should not be lost sight of. He is at the lowest rung, not in the regular service, and depends on the mercy of the Officer-in-charse for his angagement on Home Guard duty. The complicity related to persons and authorities in police service. Besides, attempts had been made to silence him. As evident from his story, a sum of Rs. 50/- had been offered to him to keep his mouth shut. Though he had refused to accept the same, the amount had been forcibly thrust into his shirt pocket. He had stated so before the Superintendent of Police, who came later for investigation into this case, and produced the same before the Deputy Superintendent of Police (P.W.19). He has categorically alleged before P.W.19 that constable Biswal had given him the amount. It has been argued with reference to his statement under Section 164 of the Code of Criminal Procedure recorded by the Sub-Divisional Judicial Magistrate that the witness did not disclose many facts which he deposed in Court. It is now well-established that all omissions are not contradictions. It has not been shown to me which of the omissions amounted to contradictions so as to discredit the witness. No doubt, in the Court he has given more details of the occurrence. That, however, does not brand him as an unreliable witness. Both the Courts below have accepted this story. There is nothing on record to characterise the said findings as perverse. I would therefore, unhesitatingly accept the, version of this witness (P.W.3), the Grama rakshi. It is the admitted case that Debananda had been brought to the police station and was at the police station at the relevant time The version of the defence was that around evening Debananda left the police station to ease himself promising to come back, but did not return This aspect is also of some interest. The station diary entry (Ext.1/2) goes to indicate that the deceased was allowed to go. When P.W.4, the wife of Debananda came to the police station with his clothes along with her mother-in-law, her children and brother, they were told that Debananda had gone towards the tank to ease himself. Till midnight they waited but he did not return. The evidence of P.W.8 to the effect that Debananda left the police station to ease himself -without informing any member of the police station, has rightly been discarded by the Courts below. The story appears to be improbable, having regard to the ordinary natural conduct of a person of the status of Debananda This aspect has been discussed by the Courts below, especially by the appellate Court in paragraph 8 of its judgment. I agree with them that the version that Debananda left the police station to ease himself, is not acceptable. That version is incompatible with the station diary entry Ext: 1/2.
5. It has next been argued that the evidence of doctor (P.W.17) falsified the prosecution case that there was assault on Debananda. According to the doctor P.W.17, there was no mark of external or internal injury. He could not give the cause of the death. From his evidence, the time of the death could be approximately fixed around 6 p.m. of the 3rd of August, 1979. It has been argued that if kicks were given by P.W.2, some marks of external injuries were expected. But the doctor has given his opinion on this aspect also, namely, only when kicks with sufficient force are inflicted, some marks of external injuries would appear. There is no hard and fast rule that a kick would in all circumstances leave a mark of external injury. Existence of mark of external injury depends upon various
rectors. We are not concerned herewith the charge of murder of which both the petitioners have been acquitted; we are only concerned with the charge of causing hurt to Debananda No doubt, the Court below has expatiated on how the death of Debananda could have been brought doubt. That was unnecessary for the appellate Court when the charge under Section 304 had failed.
6. It has been urged that the prosecution is guilty of withholding material witnesses. There were A.P.R. quarters nearby; so too there were some private houses. But evidence does not disclose that any member of the public was present at the time of the occurrence. No doubt, some constables were present. But unless that evidence was essential for unfolding the prosecution case, the prosecution was not bound to examine them. When Ditikrishna had not seen the assault on Debananda, he was not a material witness. His non-examination, therefore, is not prejudicial to the prosecution It has further been urged that the Superintendent of Police was present at the police station at the relevant time. But he was in a different room. A suspect was merely being questioned. The Superintendent of Police could have no premonition beforehand as to what was happening in a room nearby it has not been argued that he was aware of the incident He had come to the police station in connection with the supervision of the investigation into the case of a dacoity. Therefore, his presence at the police station by itself cannot believ the prosecution case.
7. Having given my earnest consideration to the submissions made at the Bar, I am satisfied, as were the Courts below, that P.W.3 is a reliable witness and his evidence, coupled with circumstances, has brought home the charge under Section 330 of the Indian Penal Code to the petitioner No.2. I would, therefore, uphold his conviction under Section 330 of the Indian Penal Code.
8. As regards petitioner No.2s conviction under Section 201 of the Indian Penal Code, there is no material to connect him with the dumping of the dead body of Debananda in the tank. The learned Additional Standing Counsel appearing for the State fairly and rightly conceded to the said aspect. Hence, the said charge fails. Petitioner No.1 is, therefore, entitled to an acquittal of the said charge under Section 201 of the Indian Penal Code.
9. Petitioner No. 1’s conviction under Section 218 of the Indian Penal Code is not to be considered in isolation. He was present at the police station throughout the alleged, occurrence He was with petitioner No.2 in the same room where the assault on Debananda took place. Hence, the allegation against him has to be considered against the entire background. Having regard to the discussions made above, lam of the view that the station diary entry as per Ext.1/2 was an incorrect record of an event with intent thereby to save or knowing it to be likely that be will thereby save himself and/or Dandapani Mahakuda from legal punishment. He has rightly been convicted by the Courts below. I would, therefore, while upholding the conviction of petitioner No.1 under Section 218 of the Indian Penal Code, reduce the sentence of fine imposed to Rs. 500/- (Rupees five hundred), in default, he is directed to undergo rigorous imprisonment for two months. While acquitting petitioner No.2 of the charge under Section 201 of the Indian Penal Code, I uphold his conviction under Section 330 of the Indian Penal Code, But in the circumstances I reduce the sentence and direct him to undergo rigorous imprisonment for six months and to pay a fine of Rs. 500/- (Rupees five hundred), in default, to undergo, rigorous imprisonment for two months.
10. In the result, the revision is allowed in part.