JUDGMENT
B.K. Behera, J.
1. The appellants and seven other co-accused persons, namely, Gaya Dehury, Mayadhar Denary, Gangadhar Dehury, Narahari Dehury, Madan Dehury, Rama Dehury and Binu Dehury. stood trial in the court of Mr. N.P. Mohapatra, Additional Sessions Judge, Cuttack, in Sessions Trial Case No. 121-C of 1976. The appellant Kailash Chandra Sahu stood charged under Section 302 of the Penal Code (the ‘Code’, for short) with having committed the murder of Bhima Behera (hereinafter referred to as the ‘deceased’) at village Nalida on July 6, 1975 and the appellant Sulochana Dei described as Suli Dei in. the evidence stood charged under Section 302 read with Section 109 of the Code for abetting the commission of the said offence. The appellants and the co-accused persons stood charged under Section 148 of the Code for having formed an unlawful assembly being armed with deadly weapons, such as, Bhalas, Tentas and lathis, in prosecution of the common object to kill the deceased and his sons and all of them also stood charged under Section 302 read with Section 140 of the Code for having committed the murder of the deceased as members of the unlawful assembly one of whom, namely, Kailash Chandra Sahu, had committed the murder of the deceased. The appellant Siba Sahu stood charged under Section 323 of the Code Cor having voluntarily caused hurt to the deceased Bhima Behera. The appellant Baban Denary stood charged under S, 323 of the Code for voluntarily causing hurt to Narahari Behera (P. W. 1) and Nabakishorc Behera (P. W. 4). The plea of the appellants and the co-accused persons was one of denial and false implication. The prosecution had come out with a story that when the deceased and his three sons, namely, Narahari Behera (P. W. 1), Bhagaban Behera (P. W. 3) and Nabakishore Behera (P. W. 4), were on the land purchased by them for the purpose of dosing the flow of water, .six of the appellants, namely Kailash Chandra Sahu, Siba Sahu, Bharal Sahu, Kangali Ghadei, Sulochana Dei and Brundaban Sahu came in a group being armed with lathis, two of them, namely, Suli Dei and Bharat, having each a Tenta also called Bhala in the locality, in addition and after an exchange of words between Siba on the the hand and the deceased on the other with regard to possession of the land which was also being claimed by the appellants’ party, the appellant. Siba dealt a lathi blow on the waist of the deceased as a result of which he fell down. When P. W. 1 came running and started lifting his father, the appellant Suli Dei handed over a Tenta to the appellant Kailash and the latter pierced it into the chest of the deceased. The appellant Siba came near the deceased and saying that he had not died, extricated the Tenta from the body of the deceased and threw it nearby. Thereafter, it was alleged, on the call of the appellant Brundaban to come and kill the sons of the deceased and make his family extinct, the appellant Baban Dehury and six others came armed with lathis. The lathi in the hands of Suli Dei was snatched away by P. W. 3 who whirled it in order to protect himself and his brothers. The appellant Baban assaulted P. W.s. 1 and 4 by the lathi he had. When P. W. l called aloud saying that his father died, the appellants and the co-accused persons left the place, On the basis of the first information report (Ext. l/l) lodged by P. W. 1, investigation was first taken up by the Officer-in-charge (P. W. 13) of the Barachana Police Station and later by PW 14, the successor Officer-in-charge of the same police station who completed it and placed a charge-sheet against the appellants and the co-accused persons.
2. To bring home the charges to the appellants and the co-accused persons, the prosecution had examined fourteen witnesses. The appellants had examined four witnesses in their defence. The appellant Brundaban Sahu and two other co-accused persons namely. Gaya Dehury and Bina Dehury had taken the plea of alibi. The appellants also wanted to show that the land in question was in the possession of the appellant Brundaban Sahu.
3. On a consideration of the evidence, the learned Additional Sessions Judge found the appellants other than the appellant Baban Dehury guilty of the charges under Sections 148 and 302 read with Section 149 of the Code and convicted them thereunder. The appellant Kailash was found to be guilty of the charge of murder and convicted under Section 302 of the Code. The appellant Suli Dei was found to be guilty of the charge of abefting the commission of the offence of murder and convicted under Section 302 read with Section 109 of the Code. The appellant Siba was found to be guilty of the charge of causing hurt to the deceased and convicted under Section 323 of the Code. The appellant Baban Dehirry was found to be guilty of causing hurt to p. Ws. 1′ and 4 and convicted under Section 323 of the Code. Six of the appellants were sentenced to undergo imprisonment for life for their conviction under Section 302 read with Section 149 of the Code. No separate sentence was passed against them for the other offences for which thev were convicted. The appellant Baban Dehury was sentenced to undergo rigorous imprisonment for a period of six months under Section 323 of the Code. The other co-accused persons were found to be not guilty of the charges and acauitted. Durinp the pendency of this appeal, the annellant Brundaban died and the appeal has abated in respect of that appellant in pursuance of the order No. 6 passed by this Court on June 21, 1982.
4. Miss P. Mohanty, appearing for the appellants, has taken us through the evidence and submitted that the evidence on which reliance had been placed by the prosecution was false and untrustworthy and no order of conviction against any of the appellants could be passed thereon. Mr. A. Rath, the learned Additional Standing Counsel, has submitted that the order of conviction is based on clear and cogent evidence of the witnesses to the occurrence besides the medical evidence and other circumstances and there is no reason to take a view different from the one taken by the trial Court.
5. It is clear from the evidence that for assault on the party of the appellants, a counter case had been started on the basis of the F.I.R. lodged by the appellant Kailash and P. Ws. 1, 3 and 4 who are the sons of the deceased and Gajendra Sahu (P. W. 5) and Babaji Charan Sahu (P. W. 6) who had figured as witnesses to the occurrence, were the accused persons in the counter case. Besides, P. Ws. 5 and 6 are the sons of P. W. 2 who had strained relationship with the appellant Brundaban (since dead). On his own showing, P. W. 9 had been examined a month after the occurrence by the Investigating Officer and he had admitted that before he was examined in the course of investigation, he had not disclosed the occurrence to any one. We also notice that his evidence was inconsistent in material particulars with the statements made to the Investigating Officer. No reliance can be placed on the evidence of a witness who claims to have seen the commission of the offence of murder and has not disclosed the occurrence to any one and has been examined in the course of investigation after considerable delay without any explanation for the delay,
6. As for the other witnesses to the occurrence, namely, p. Ws. l and 3 to 6, they did belong to a hostile faction in that they had been involved in the counter case. There had been a case and a counter case and there had been counter versions as to what had happened. P. Ws. l and 3 to 6 were thus partisan witnesses and would be highly interested for a successful termination of the trial against the appellants. The evidence of such witnesses is not to be discarded on the ground of partisanship or interested-ness as the mechanical rejection of such evidence in a case of this nature on the sole ground that it is partisan evidence would lead to failure of justice. The Court has to appreciate such evidence carefully and find out whether there are discrepancies in the evidence, whether the evidence strikes the Court as genuine and whether the story disclosed by the evidence is probable. After all, interested evidence is not necessarily unreliable evidence. Partisanship, by itself, is not a valid ground for discarding or rejecting the sworn testimony of a witness. Such evidence should be subjected to careful scrutiny and accepted with caution. The Court is to find out as to whether the presence of the witness at the scene of the crime is probable and if so, as to whether the substratum of the story narrated by him is such that it would carry conviction with a prudent person. If the evidence of the witness appears to the Court to be flawless and free from suspicions, it may accept it without cor-roboration from any other source. The evidence of such a witness is generally fringed with embellishments, improvements and exaggerations, however true the evidence may be in the main and the Court may look for some assurance the nature and extent of which may vary according to the circumstances of the particular case from independent , evidence, direct or circumstantial, before the accused is found guilty on the basis of interested testimony. In this connection, reference may be made to the principles laid down in , Masalti v. State of Uttar Pradesh , Sarwan Singh v. State of Punjab , Hari Obula Reddi v. State of Andhra Pradesh . Ram Ashrit v. State of Bihar , Sevi v. State of Tamil Nadu and AIR 1931 SC 2073 : 1981 Cri LJ 1701, State of U. P. v. Manoharlal. The evidence of PWs 1 and 3 to 6 is to be approached and scanned keeping in mind these principles with regard to the appreciation of such evidence.
7. On going through the evidence adduced from both the sides, we are not at one with the trial Court that the deceased party had been able to establish that the land in question was in the possession of the deceased and his sons. No doubt, their case was that the land had been purchased by the deceased from Dwari Barik, Swari Barik and Kamali Nibya four to five months prior to the occurrence by means of a registered deed of sale (Ext. 2) and the vendor had delivered possession of the- land, but none of the vendors had been examined art a witness of the prosecition, P. W. 2, who had been examined to prove the possession of the deceased in respect of the land in question, was undoubtedly a highly interested witness as two of his sons, P. Ws. 5 and 6 and his Samudhi Krushna were the accused persons in the counter case. Besides, as would appear from his statement to the Investigating Officer which was disowned by him at the trial, the appellant Brundaban had claimed the land purchased by the deceased and had applied to the Tahsildar for identification. P. W. 10 had been examined for the prosecution in this regard and according to him, he had sold some lands to the Barik family and had delivered possession thereof. He had proved a number of documents. His evidence, however, would not conclusively estabilish that the deceased had been in cultivating possession of the land in question. Although on the basis of the reports made by Brundaban Sahu with regard to his claim of possession, station diary entries (Exts. G, G/a and G/b) had been made, the evidence from the side of the defence with regard to the possession of the land by the appellant Brundaban was also not satisfactory. It had not clearly been established that he was in cultivating possession of the land. There was thus a scramble for possession between both the parties.
8. The learned Additional Sessions Judge did not accept that part of case of the prosecution that the accused persons having the surname ‘Dehury’ who had allegedly come to the scene after the assault on the person of the deceased had shared the common object of committing the murder of the deceased. The. essence of the object of an unlawful assembly is common object of the accused persons forming it. It is necessary that the object should be common to the persons and they should all be aware of it and concur in it, Mere presence of a person at the time of the commission of rioting is not sufficient to show that he was a member of the unlawful, assembly which committed the offence. The primary question for consideration is as to whether the object of the assembly of the accused persons was unlawful (see 1932 Cri LJ 1585(Orissa) Anam Pradhan v. State). The appellant Baban Dehury has been convicted for his individual assault on P. Ws. 1 and 4 by a lathi. It is now to be seen as to whether the other appellants could be convicted under Sections 148 and 302 read with Section 149 of the Code and as to whether the order of conviction recorded against the appellant Kai-lash under Section 302 of the Code was legal and justified. It is also to be seen as to whether the appellant Siba could be convicted under Section 323 of the Code of causing hurt to the deceased and the appellant Baban Dehury could be convicted under Section 323 of the Code for causing hurt to P. Ws. 1 and 4.
9. The evidence of P. W. 1 Narahari was that while the deceased, he and his brothers were closing the flow of water on their land, the appellants Siba, Kailash, Brundaban, Bharat, Suli and Kan-gali came armed in a group, each of them. having a lathi and the appellants challenged the deceased as to why the flow of water was being closed for which the deceased retorted saying that he had purchased the land. Then the appellant Siba dealt a lathi blow on the right side of the waist of the deceased as a result of which he fell down and when he (P. W. 1) was trying to lift him up, the appellant Kailash came armed with a Tenta and dealt a blow to his father by the Tenta on the right side of his chest. P. W. 1 could not say wherefrom the appellant Siba brought the Tenta. Immediately thereafter, the appellant Siba came near his father and saying that he had not died, removed the Tenta from the person of the deceased and threw it near him. Thereafter, according to PW ], the appellant Brundaban shouted calling the other persons to come and directed the persons who came to the spot to kill the deceased and his sons. Bhagaban (P. W. 3), according to this witness, snatched away the lathi from Suli and brandished it to ward off the assault by the accused persons. The appellant Baban dealt a lathi blow on his head and a lathi blow on the right hand of P. W. 4, as testified by P. W. 1. He had identified M. O. I (Tenta) as the weapon of attack by which the deceased was killed by the appellant Kailash.
10. It is important to note that in the first information report, P. W. 1 had stated that only four persons, namely, Brundaban, Kailash, Bhagaban and Suli first came to the spot with Badis, understood at common parlance as small sticks, and not with lathis, as deposed to by him in the Court. While in his evidence, P. W. 1 had testified that after the assault on the deceased, Brundaban instigated others to come and finish the deceased and his sons, it had been stated in the F.I.R. that the instigation had been made by this appellant to kill the deceased before the murderous assault was made on him. Although according to P. W. 1, the appellant Siba dealt a lathi blow on the waist of his father, no such injury had been noticed by the doctor who conducted the autopsy. Even if the evidence of P. W. 1 and that of the other eye-witnesses to the effect that the appellant Siba Sahu, after the murderous assault on the deceased by means of M.O.I, came and gave out that the deceased had not died and removed M.O.I, from the person of the deceased and threw it nearby is accepted, it could not be said from this alone that he had shared the common object to commit the murder of the deceased. As narrated in the F.I.R., he had not accompanied the others to the place of occurrence and if he had shared the common object of others to kill the deceased, he would have further pierced the Tenta (M. O. I.I into the chest of the deceased instead of removing it and throwing it outside. Thus the only consistent statement made by PW 1 with regard to the occurrence with the statement made in the F. I. R. was with regard to the assault on the person of the deceased by the appellant Kailash by piercing M.O.I, into his chest which, as the evidence of the doctor would clearly indicate, had resulted in the death of the deceased.
11. PW 1 had not stated in the first information report that his brother Bhagaban (PW 3) snatched away the lathi from the hands of appellant Suli and brandished it in self-defence, which, as the prosecution witnesses wanted to show, might have caused injuries to some persons from the side of the appellants. It was at that stage of the occurrence that the appellant Baban had allegedly assaulted PWs l and 4, as deposed to by the eye-witnesses.
12. PWs 3 to 6 and 9 had stated that the appellant Suli Dei handed over a Tenta to the appellant Kailash with which the latter assaulted the deceased and pierced it into his chest which had ultimately resulted in the death of the deceased. This fact, however, was conspicuous by its absence in the first information report. These witnesses had also testified that after the deceased was assaulted by means of a Tenta, the appellant Brundaban called out the persons to come and finish the deceased and his sons. This had not been stated in the F. I. R. either. On the other hand, it had been stated therein that when the four persons, namely, Brundaban, Kailash, Bhagaban alias Bharat and Suli came to the scene, each having a Badi, the appellant Brundaban instigated them to make the dynasty of the deceased extinct by piercing into them (Bhusidio). This was not the evidence of the eyewitnesses at the trial. These statements made at the trial by the eye-witnesses in their evidence to connect the two appellants Suli Dei and Brundaban with the crime of murder to show that they had shared the common object and had instigated others including Kailash to commit the murder could not be said to be inconsequential statements and the non-mention of these facts in the first information report would seriously affect the bona fides of the prosecution case. As has been laid down by the Supreme Court in , Ram Kumar Pande v. State of Madhya Pradesh, a first information report is a previous statement which can strictly speaking be only used to corroborate or contradict the maker of it. But omissions of important facts affecting the probabilities of the case are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case,
13. It has been stated by PW 1 in his cross-examination that the appellant Siba had no weapon or lathi in his hand when he came to the deceased and took out the Tenta from his person. He could not say what Siba did with the lathi with which he had assaulted his father earlier. In order to get over the inconsistencies by presenting a story in the court substantially different from the one given in the F. I. R., PW 1 had gone to the length of disowning the statements made by him in the F. I. R. and had stated that the contents of it had not been read over and explained to him before he signed it. PW 1 had given inconsistent and materially divergent versions in his F.I.R. and in his evidence except with regard to the assault by means of M.O.I. on the person of the deceased by the appellant Kailash which had resulted in his death. As earlier indicated, he had not presented a true picture as to how a number of persons from the side of the appellants received injuries during the occurrence and his story that P.W 3 whirled a lathi in self-defence after snatching it. from the hands of appellant Suli Dei could not be accepted. He had thus not presented a true and complete picture of the occurrence before the court during the course of which he and his brother (PW 4) had allegedly been assaulted by ‘he appellant Baban and the persons from the other side had sustained injuries.
14. The evidence of P. Ws. 3 to 6 was that the appellants Kailash, Siba, Bharat Brundaban, Kangali and Suli came in a group, each of them holding a lathi and in addition, the appellant Suli and the. appellant Bharat each holding Bhala, also called a Tenta in the locality, in addition. This evidence was not consistent with that of PW 1. Besides, the story presented by PW 1 in the first information report was substantially different in this regard. Each of these witnesses, namely, PWs 3 to 6, had given out. that the appellant Siba dealt a blow on the person of the deceased and the evidence was that this blow fell on the waist. The evidence of these highly interested persons in this regard had not found assurance from that of the doctor. They had, however, given a clear and consistent version about the assault on the person of the deceased by the appellant Kailash by means of a Tenta by piercing it into his. chest which had resulted in his death,
15. In his statement to the Investigating Officer, PW 3 had not even staled about the presence of the appellant Brundaban on the spot till the assault on PWs 1 and 4 by the appellant Baban and he had not slated about the presence or participation of the appellants Suli and Bharat alias Bhagaban. As deposed to by him in the Court, the whirling of the lathi had struck the head of the appellant Kailash and the leg of the appellant Kangali and that some of them fell down and sustained injuries. He had not stated so in the course of investigation.
16. If as stated by PW 4 in his cross-examination, they had no ill-feeling with the appellant Brundaban prior to the occurrence, it was highly unlikely that this appellant would instigate others to make the dynasty of the deceased extinct. He could not say how some of the appellants had sustained injuries during the occurrence. He had not stated about the presence and participation of the appellant Suli Dei in the crime to the Investigating Officer. He had testified that he had not noticed if any of the accused persons had sustained injuries by the lathi whirled by PW 3.
17. In his statement to the Investigating Officer, PW 5 had not stated that PW 4 had sustained any injury on his fore-arm as a result of the assault by the appellant, Baban and he had not even named the appellants Suli Dei, Brundaban. Bharat. and Kangali and he had not implicated them with regard to the occurrence, although he had attributed specific acts of commission and instigation against those appellants in the Court.
18. PW 6 had not stated to the Investigating Officer that the appellant Siba came near the deceased and challenged him as to why he was closing the flow of water although he had stated against this appellant in this regard in his evidence. He had not, stated to the Investigating Officer about the presence arid partition of the appellants Suli Dei and Bharat alias Bhagaban. He had not stated to him that the appellant Suli handed over a Bhala to the appellant Kailash.
19. We have indicated as to why the evidence of PW 9, examined long after the occurrence, in the course of investigation should not he accepted. Apart, from that consideration, his evidence was a bundle of contradictions. Although he had stated in his evidence about the assault by the appellant Baban on Narahari (PW 1) and about the presence and participation of the appellants Bharat alias Bhagaban, he had not stated so during the investigation. He had not stated to the Investigating Officer that the Bhala with which the appellant Kailash stabbed the deceased had been handed over to him by the appellant, Suli, as stated by him in the Court. He had also not stated to the Investigating Officer that the appellant Siba came and removed the Bhala from the body of the deceased saying that he was not yet dead, although he had asserted about this in his evidence in the Court. He had not stated in the course of investigation that the appellant Brundaban instigated the accused persons to kill the three sons of the deceased and make his family extinct, as deposed to by him in the Court,
20. We find that the witnesses to the occurrence (PWs 1 and 3 to 6) had given a clear, cogent and consistent version about the stabbing on the person of the deceased by the appellant Kail ash by means of a Tenta which had resulted in his death and their evidence in this regard would find support in the evidence of the doctor (PW 11) who had conducted the autopsy. This fact had also found a place in the F. I. R. lodged by PW 1 soon after the occurrence and this would corroborate the evidence of PW 1. We are, however, not prepared to place reliance on the testimony of the eye-witnesses with regard to the other parts of the occurrence, viz., participation of the other appellants and regarding the assault on the person of the deceased by means of a lathi by the appellant Siba and the assault on the persons of PWs 1 and 4 by the appellant Baban.
21. For the reasons aforesaid we are of the view that the prosecution had not presented a true and complete picture as to what happened on the spot after the appellant Kailash stabbed the deceased by means of a Tenta. The doctor (PW 11) had noticed a swelling with simple fracture of the upper thumb of the appellant Kangali, six bruises and a swelling on the person of the appellant Siba. two contusions on the person of the appellant Bharat, two lacerated injuries and three bruises on the person of the appellant Kailash and three lacerated injuries and two bruises, one of the bruises having caused fracture on the left palm, on the person of the appellant Suli Dei. The presence of the injuries on these appellants would indicate their presence on the spot at some stage or the other, But the prosecution witnesses, instead of explaining clearly as to how they came by the injuries, had suppressed this part of the occurrence and it may be kept in mind that it is at this stage that the appellant Baban had allegedly caused hurt to PWs 1 and 4, When the prosecution had not given a clear and full picture of the occurrence after the assault on the person of the deceased by the appellant Kailash by means of a Tenta, it would not be safe, reasonable and proper on our part to accept the evidence with regard to the assault by the appellant Baban on the person of PWs 1 and 4.
22. We have already discussed the evidence with regard to the presence and participation of the appellant Suli Dei. No doubt, injuries on her person would show her presence at the spot at some stage and some broken glass bangles had been seen at the spot and seized, but her defence that while she had taken her goats for grazing, she saw assault on some of the persons of the appellants’ party by the other side and when she tried to protect the appellant Kangah (her husband) from assault by Gajendra (PW 5), she had received an injury on her left arm and her glass bangles were broken and she had been further assaulted by Gajendra and Rushia would appear to be a reasonable and probable one.
23. On a consideration of the evidence and after an examination of the contentions raised at the Bar, we find that the charges under Sees. 148 and 149 of the Code against the appellants could not be sustained. As a matter of fact, we have indicated earlier and we may state at the cost of repetition that in the first information report lodged by PW 1, it was stated that only four persons had gone to the spot when the deceased was attacked and killed and the others came later. We have also found, for the reasons indicated by us, that the charges against the appellants Siba and Baban under Section 323 of the Code had not been brought home to them. The charge of instigation against the appellant Brunda-ban must also fail. While rejecting the evidence with regard to the other parts of the occurrence, we have accepted the evidence of the prosecution witnesses (PWs 1 and 3 to 6) with regard to the assault on the person of the deceased by the appellant Kailash by means of a Tenta. The eye-witnesses other than PW 1 had, no doubt, testified that the appellant Kailash had used the Tenta in the assault on the person of the deceased which had been handed over to him by the appellant Suli Dei and this part of the evidence against the appellant Suli Dei had not been accepted by us. But it clearly appears from the evidence that the earliest version given by PW 1 in the F. I. R. that the appellant Kailash brought the Tenta from somewhere and assaulted the deceased and his evidence in the Court to the same effect would represent the truthful version and that the other witnesses had made this allegation evidently with the purpose of strengthening the case of the prosecution against the appellant Suli that, she had abetted the commission of the offence of murder,
24. The evidence on which the prosecution sought to build its case was of a partisan character. We have, however, taken care to scan their evidence before accepting the same with regard to the assault on the deceased by the appellant Kailash. The doctrine falsus in uno, falsus in omnibus is not accepted by the Courts in India. It is the duty of the Court to sift the grain from the chaff and truth from falsehood. We find, for the reasons already recorded by us, that the evidence of PWs l and 3 to 6 that the appellant Kailash had pierced a Tenta into the chest of the deceased is true and reliable. This appellant had chosen a vital part and had pierced the Tenta into the chest of the deceased. The evidence of PW 11 would undoubtedly show that the death of the deceased was homicidal in nature, PW 1 had found a penetrating injury into the chest cavity on the right side of the deceased which had caused internal injuries, ante-mortem in nature, sufficient in the ordinary course of nature to cause death which was due to shock and haemorrhage, as testified by him and recorded in the post-mortem report. (Ext. 16). We would, therefore, accept the finding recorded by the trial Court that the appellant Kailash had the intention to cause the death of the deceased and that with that intention, he had assaulted the deceased by a dangerous instrument resulting in his death. His conviction under Section 302 of the Code was legal and justified.
25. In the result, the appeal is allowed in part. The order of conviction passed against the appellant Kailash under Section 302 of the penal Code is maintained and he is sentenced to undergo imprisonment for life. The orders of conviction and sentences passed against the other appellants are set aside. Their bail bonds be cancelled.
P.K. Mohanti, J.
26. I agree