JUDGMENT
G.B. Patnaik, J.
1. Both these appeals are directed against the judgment of the learned Sessions Judge, Puri, in sessions Trial No. 141 of 1983. The appellants in Criminal Appeal No. 264 of 1984 are the four accused persons who have been convicted by the learned Sessions Judge under Section 302/34, Indian Penal Code, and have been sentenced to undergo imprisonment for life. The State is the appellant in the Government Appeal assailing the order of acquittal in respect of 9 other accused persons.
2. 13 accused persons stood charged under Section 302/149, Indian Penal Code, for having formed an unlawful assembly in prosecution of their common object to commit murder of Tani Panda and they were also charged under Section 302/34, Indian Penal Code, on the allegation that Tani Panda was murdered in furtherance of their common intention. All of them stood charged also under Section 148, Indian Penal Code, and accused Hadibandhu alone was charged under Section 341, Indian Penal Code, for having wrongfully restrained the deceased Tani Panda.
3. Prosecution case, in brief, is that a Board of Trustees was managing the affairs of the Deity Sri Lokanath in Puri Town. One Shri Shibananda Saraswati was the Managing Trustee; The deceased Tani Panda was the power of attorney holder of the Managing Trustee. The accused persons except accused Kela Bhoi are the Sevaks of the Deity. The Sevaks formed a Mijjog seviat and misappropriated the income of the Deity. Being aggrieved by the activities of the Sevaks, the Managing Trustee as well as the Power-of-Attorney holder Tani Panda filed objections before the Endowment Commissioner. As the sevaks had locked up the office room of the Deity, the Managing Trustee had filed a petition before the Endowment Commissioner on 4-3-1983. The said Endowment Commissioner had passed an order on 7-3-1983 authorising the Endowment Inspector, Puri, to break open the lock after taking necessary police help and to prepare an inventory of the articles inside the office room. In pursuance of the said order, the Endowment Inspector (P.W.6) on 8-3-1983 decided to break open the lock and to prepare an inventory. He accordingly went to the Officer-In-charge of Puri Town Police Station and requested for police help. P. Ws. 2 to 4 were then sent on. duty. At 4.30 p.m. on 8th of March, 1983, the Endowment Inspector (P.W.6) arrived at the main gate of Sri Lokanath Temple. The Sevak accused persons were then present and they abused the Inspector and also threatened him with dire consequences if he would proceed to break open the lock and prepare an inventory. The police force (P.Ws. 2 to 4) who were present there could not control the situation. In the meantime, deceased Tani Panda and his son (P.W. 1) arrived near the temple in a rickshaw. Seeing Tani Panda coming on a rickshaw, the accused-Sevaks rushed towards him and tried to assault him. He then tried to run away on the rickshaw. But he was prevented and the rickshaw was prevented from moving. When the Sevaks encircled the rickshaw, the son (P.W. 1) got down and ran to a nearby tamarind tree. The rickshaw with the deceased could move a few cubits in spite of resistance offered by the accused Sevaks and then the deceased was pulled down from the rickshaw. Accused Kela who had his house nearby then ran to his house and brought a bundle of weapens. The accused persons then started indiscriminately assaulting the deceased Tani Panda with the weapons and then ran away from the place. The deceased was lying injured in a pool of blood. Immediately thereafter another son of the deceased (P.W. 7) and the brother (P. W.8) arrived at the scene of occurrence and they made arrangement for carrying the injured to the hospital. The deceased died at the hospital at 7.15 p.m. P.W. 1, the son, who had come to the spot with the deceased reported the occurrence at the police station at 6 p.m. which was treated as F.I.R. and the police then started investigation. Ultimately, on completion of the investigation, charge-sheet was filed and on being committed, the accused persons stood their trial for the offences as already stated.
4. The plea of the accused persons is one of denial. Accused Hadibandhu who was a teacher took the plea of alibi to the effect that he was not present at the place of occurrence at the time of occurrence and in support of the said plea, he has examined 2 witnesses, D. Ws. 1 and 2.
5. The prosecution examined 13 witnesses in all of whom P.Ws. 1, 5, 6 and 10 claim to ‘be the eye witnesses to the occurrence. P.Ws. 2, 3 and 4 were declared hostile by the prosecution as they did not support the prosecution case during trial. P.Ws. 7 and 8 are the two post-occurrence witnesses who arrived at the scene of occurrence after the accused persons had left. P.W. 9 is the doctor who had conducted the autopsy over the dead body of the deceased. P.W. 11 is the Investigating Officer. P.W. 12 is the Magistrate who had conducted the T.I. parade and P.W. 13 is the constable who guarded the dead body. On the basis of the post-mortem report and the evidence of the doctor (P.W. 9), the learned Sessions Judge came to hold that the deceased met a homicidal death. That conclusion has not been assailed before us by the counsel for either of the parties. According to the doctor Tani Panda had been admitted as an indoor patient at the Headquarters Hospital in an injured condition and he expired at 7.15 p.m. on 8-3-1983. On post-mortem the doctor found incised wounds and punctured wounds and all the injuries were ante mortem in nature. In this view of the evidence, the conclusion that the deceased met a homicidal death must be affirmed. After scanning the evidence, the learned Sessions Judge came to hold that the assault on Tani Panda took place before 5.15 p.m. on 8-3-1983. But with regard to the question as to who were the assailants responsible for the death of the deceased, the Sessions Judge scrutinised the ocular statements of P.Ws. 1, 5, 6 and 10.
Though the prosecution had relied upon a dying declaration alleged to have been made by the deceased to P.W. 7, but the Sessions Judge discarded that piece of evidence and in our considered opinion rightly so. The learned Government Advocate also does not press dying declaration into service in support of the appeal against the order of acquittal of some of the accused persons. The sessions Judge relied upon the evidence of D.Ws. 1 and 2 as well as Exts. E and G and on the basis of those documents as well as on the basis of reliable evidence of D.Ws. 1 and 2 accepted the plea of alibi of accused Hadibandhu and held that Hadibandhu was not present at the spot when the occurrence took place. That conclusion of the learned Sessions Judge has also not been assailed before us by the learned Government Advocate in the Government Appeal and after scanning the evidence, we are of the opinion that the said conclusion is unassailable. Out of the remaining 12 accused persons, the Sessions Judge came to hold that accused Nityananda assaulted on the head of the deceased by means of a Bhujali, accused Baidyanath also assaulted by means of a Farsa, accused Gadi assaulted by means of a Chapudi and accused Syamasundar assaulted by means of an iron rod. He further held that the prosecution evidence implicating those four accused persons was reliable and it must be held that the prosecution had been able to establish its case beyond all reasonable doubts and accordingly convicted them under Section 302/34, Indian Penal Code. So far as the other eight accused persons are concerned, the learned sessions Judge acquitted them on a finding that the prosecution has failed to establish the charge against them beyond all reasonable doubts. Thus Hadibandhu was acquitted of the charge under Section 341, Indian Penal Code, and excepting accused Nityananda, Baidyanath, Syamsundar and Gadi, eight other accused persons were acquitted of the charge under Section 302/34 as well as under Section 302/149 and Section 148, Indian Penal Code. But those four accused persons having been convicted under Section 302/34, Indian Penal Code, and having been sentenced to imprisonment for life, they have preferred the criminal appeal and the Government Appeal is against the acquittal of the eight accused persons.
6. Mr. Mund, the learned counsel for the appellants in the criminal appeal, contends with vehemence that the prosecution evidence of P.W. 1, 5, 6 and 10 having been rejected so far as the participation of nine other accused persons is concerned, the same should have been held to be totally unworthy of credit and could not have been relied upon to establish the charge against the appellants. Mr. Mund further contends that P.W. 10 though claimed to be an eye witness to the occurrence, but the learned Trial Judge did not accept his testimony and P.Ws. 1, 5 and 6 should not have been believed on account of inherent inconsistencies and broad improbabilities in their evidence while implicating the appellants. In view of this submission of Mr. Mund, the learned counsel for the appellants, it is necessary for us to scrutinise the evidence of P.Ws. 1, 5 and 6.
7. P.W. 1 is the son of the deceased. He had gone to the place of occurrence along with his father and he knew the accused persons. He states that excepting accused Kela all other accused persons were present near the main gate of Sri Lokanath Temple and when the accused person surrounded him and his father, accused Syamasundar instigated other accsed persons to kill his father at the spot whereafter he jumped from the rickshaw and ran away to a nearby tamarind tree at a distance of 15 to 20 cubits. After Kela placed a bundle of deadly weapons, accused Baidyanath dealt a Farsa blow on the head and while the deceased tried to get up accused Nityananda dealt a blow by means of a Bhujali on his head. While his father raised his hand for protections, accused Gadi dealt a Chapudi blow on his hand, Thus according to him accused Syamasundar, had merely instigated and had not taken part in assaulting the deceased. P.W. 5 who was the peon of the Endowment Inspector and had gone there along with the Inspector under official orders to make an inventory states in his evidence that while the deceased and the boy wanted to go back in their rickshaw, the accused persons did not allow them to go and then they pushed the rickshaw up to a distance of twenty cubits from the main gate of the temple and at that point P.W. 1 jumped from the rickshaw and ran towards south and concealed himself behind a tamarind tree. The deceased was then pulled down and Kela placed a bundle of weapons of the road. Thereafter accused persons each cought hold of one of those deadly weapons and indiscriminately assaulted the deceased the P.W. 5 proceeded ahead on his rickshaw. Therefore, he has not specifically stated as to which accused assaulted the deceased on which part of the body and with what weapon. P.W. 6 is the Endowment Inspector himself. Like P.W. 5, he has also not stated as to which accused assaulted the deceased on which part of his body by what weapon. But he corroborates the evidence of (PW ?) that the accused persons caught hold of weapons and assaulted the deceased as a result of which the deceased sustained injuries and ultimately succumbed to the same.
The learned Sessions Judge has elaborately scrutinised the evidence and after applying the theory of separation of the chauff from the grain and relying upon the grain has held that the prosecution has been able to establish the charge beyond all reasonable doubts against the four appellants, namely Nityananda, Baidyanath, Syamasunder and Gadi. After reappraising the evidence of P. Ws. 1, 5, 6 and 10, since P.W. 1 has not indicated as to any specific part played by accused Syamasundar, we think it appropriate to hold that the prosecution case as against appellant Syamasundar has not been proved beyond reasonable doubt and, therefore, he is entitled to have the benefit like all other eight accused persons who are acquitted by the learned Sessions Judge. Accordingly, the conviction of appellant Syamasundar under Section 302/34, Indian Penal Code, is set aside and he is acquitted of the charge and is directed to be set at liberty forthwith. So far as accused Nityananda, Baidyanath and Gadi are concerned, we entirely agree with the conclusion of the learned Sessions Judge after reappraising the evidence ourselves and confirm their conviction and sentence passed by the learned Sessions Judge. The criminal appeals so far as they are concerned accordingly stand dismissed.
8. Coming to the Government Appeal, the learned Government Advocate presses this appeal as against accused Kela, Maniram and Kanhu. According to him, the F. I. R. which has been lodged at an earlier point of time implicates all these three persons and P.Ws. 1 5 and 6 also fully establish their presence at the spot and accordingly there is no justifiable reason for their requittal. It is no doubt true that the power of this Court for appreciating evidence against an order of acquittal is the same as that against an order of conviction. But at the same time while considering the order of acquittal, this Court must also consider the reasons which impelled the learned trial Judge to disbelieve the witnesses and to hold that the prosecution has failed to establish the case against them. In other words, an order of acquittal should not be lightly interfered with merely because another view of the evidence is possible. The learned Government Advocate took us through the evidence of P.Ws. 1, 5 and 6 as well as the appreciation of that evidence made by the learned Sessions Judge while acquitting the eight accused persons apart from accused Hadibandhu whose plea of alibi was sustained. On a careful scrutiny of the evidence, we do not find any error committed by the learned Sessions Judge so far as appreciation of the evidence is concerned. The reasons given by the Sessions Judge to discard the evidence so far as it relates to the acquitted accused persons are concerned cannot be said to be in any way arbitrary or perverse. In that view of the matter, we hardly see any justification for our interference with the order of acquittal.
9. In the net result, therefore, the conviction and sentence passed against appellants Nityananda, Baidyanath and Gadi are confirmed; conviction and sentence passed against appellant Syamasundar are set aside and he is directed to be set at liberty forthwith. The Criminal Appeal is allowed in part. The Government Appeal stands dismissed,
D.N. Patnaik, J.
10. I agree.