JUDGMENT
B. Panigrahi, J.
1. The prosecution story shortly stated is that on 15th March, 1988, at 5.30 P.M. when P.W.2, Subudhi Pradhan was in his house, Sukadev Digal (P.W.7) of his village came running and narrated that he and the deceased Sunasira Pradhan had been to Rajanbadi Padar to take Salap juice. After taking Salap juice when they were returning to village, on the way at Gotadipadar, Trikola Pradhan (not an accused) and the appellants Mathu Digal and Ramesh Pradhan came in a body and attacked the deceased Sunasira Pradhan by laying him down on the ground and dealt fist and kick blows on his chest, belly and head as a result of.which he instantaneously died. When P.W.7 Sukadev Digal questioned as to the appellants’ high-handed action, they assaulted P.W.7 as a reason whereof he went away from the spot out of fear. P.W.2 on being informed about the incident by P.W.7 immediately intimated to the other villagers, namely Debendra Pradhan, Bala Krushna Pradhan and Asiban Pradhan. He went to th spot first and on reaching Gotadipadar, did not find his brother at the spot, but noticed two teeth and some patch of blood. He also found the track of dragging and blood. P.W.2 following such tracking proceeded upto Alpanga Nalla and found the appellants dragging the body of his brother Sunasira and throwing it into the nalla. Appellant Mathu Digal told the other accused-appellant Ramesh Pradhan and one Trikola Pradhan to finish Subudhi Pradhan (P.W.2) Jest he might inform about the incident to others. So, out of fear, he came back to his house. The appellants and their other associates after throwing the deceased into the nalla left for their houses. P.W.2 has also claimed to have informed about the incident to other villagers. Subsequently, he lodged F.I.R. which was marked as Ext. 1 before the learned Sessions Judge. On receiving the F.I.R., the Officer- in-charge, Sarangagada Police Station, registered the case under Sections 302/201/323/34, Indian Penal Code, and immediately took up investigation. During investigation, he recorded the statements of witnesses, held inquest over the dead body of the deceased, prepared inquest report vide Ext. 2, sent the dead body through the Challan (Ext.8) to Raikia P.H.C. for post mortem examination, made spot inspection, seized the teeth lying near the place of occurrence, seized some blood-stained earth and sample earth vide seizure-list (Ext. 3), issued requisition for examination of the injured (P.W.7) and after completion of investigation, placed charge-sheet against the appellants. At the initial stage, it was claimed by the prosecution that the accused persons had absconded, but after being apprehended they were sent to judicial custody. After submission of the charge-sheet, the learned S.D.J.M., Balliguda, committed the case to the Court of Session. On evaluation of the evidence, the learned Sessions Judge, however, was inclined to record an order of conviction against the appellants under Sections 302/201/34, Indian Penal Code, and sentenced them to undergo rigorous imprisonment for life. The appellants having been aggrieved by such conviction and sentence have preferred this appeal.
2. Mr.Dhal. the learned counsel appearing for the appellants, has contended at the outset that the prosecution having miserably failed to bring home the charge against the appellants, the learned Sessions Judge should not have recorded an order of conviction under Sections 302/201/34, Indian Penal Code. It has been submitted that P.W.7 who is claimed to be a star witness in this case did not support the prosecution story and Anr. version has been made in course of examination in Court.
3. To determine the correctness of the said submission, we refer to the evidence of P.W.7, who has stated, “I do not know the accused Ramesh and Mathu”. It is further found from para-2 of his deposition that he has made an attempt to introduce another story during examination in Court. It is stated that one
Bamadev took Salap juice. At that time Trikola was present and there was an altercation between the deceased and Trikola Pradhan. As a sequel thereof, Trikola inflicted fist blows and kicks on different parts of the body of the deceased. On protest made by P.W.7, he was assaulted with fist blows and kicks. It has been further stated in the chief-examination that P.W.7 had not seen the appellants Ramesh and Mathu at the spot. It is, no doubt, true that the prosecution declared this witness as hostile and sought permission to cross-examine him, but nothing was elicited from the cross-examination, save and except, confronting the previous statement made under Section 161, Cr.P.C.
4. The learned Sessions Judge has basically relied upon the evidence of P.W.2 who is none other than the brother of the deceased. P.W.2 was not an eye-witness to the occurrence and he has clearly admitted to have learnt it from P.W.7. When P.W.7 did not support the prosecution story, the evidence of P.W.2 that he disclosed it after having learnt from P.W.7 does not inspire any confidence and that apart, the version of P.W.2 also appears to be based on hear-say, since the maker of the statement has not supported the prosecution story. Accordingly, P.W.2’s version with regard to the incident appears to be doubtful and was not supported by any other evidence. On close examination of the version of other prosecution witnesses, it seems that they are post-occurrence witnesses, who reached the spot after the arrival of P.W.2. Thus in that case, it can safely be concluded that the prosecution was unable to bring home the charge under Section 302, Indian Penal Code, against the appellants, inasmuch as P.W.7 did not support the prosecution story.
5. Now turning to the evidence of P.W.5, the Medical Officer of Raikia P.H.C., he has stated that he examined the dead body of Sunasira Pradhan and found as many as eight injuries. From the evidence of prosecution, it is gathered that the deceased was drunk at the time of incident. On perusal of the report, there has been no opinion as regards the consumption of liquor at the time of incident. All these injuries noticed on the dead body were possible by fist blows and kicks and were ante mortemin nature. It can be likely that the death must have been due to the rupture of liver and spleen. Therefore, from the opinion of the Medical Officer (P.W.5), we have no doubt in our mind that the injuries caused on the deceased were ante mortem in nature and it can safely be concluded that the deceased met a homidical death. But in the instant case, since there is dearth of evidence against the appellants that they were the authors of the crime, we are unable to agree with the order of conviction and sentence passed by the learned Sessions Judge.
6. It is to be next seen whether the appellant could be convicted under Section 201/34, Indian Penal Code. Since the main offence of which they stood trial has ended in acquittal, conviction under Section 201/34, Indian Penal Code, is unwarranted. To fortify our stand, we rely upon the judgment of the Supreme Court reported in AIR 1952 Supreme Court, 354 (Palvindar Kaur v. State of Punjab), wherein it has been held :
“14. In order to establish the charge under Section 201.. Penal Code, it is essential to prove that an offence has been committed. – mere suspicion that it has been committed is not sufficient – that the accused knew or had reason to believer that such offence had been committed and with the requisite knowledge and with the intent to screen the offender from legal punishment causes the evidence thereof to disappear or gives false information respecting such offences knowing or having reason to believe the same to be false. It was essential in these circumstances for the prosecution to establish affirmatively that the death of Jaspal was caused by the administration of potassium cyanide by some person (the appellant having been acquitted of this charge) and that she had reason to believer that it was so caused and with that knowledge she took part in the concealment and disposal of the dead body. There is no evidence whatsoever on this point. The following facts, that Jaspal died, that his body was found in a trunk and was discovered from a well and that the appellant took part in the disposal of the body do not establish the cause of his death or the manner and circumstances in which it came about. As already stated, there is no direct evidence to prove that potassium cyanide was administered to him by any person. The best evidence on this question would have been that of the doctor who performed the post mortem examination. The evidence does not prove that Jaspal died as a result of administration of potassium cyanide. On the other hand, the doctor was of the opinion that there were no positive post mortem signs which could suggest poisoning. He stated that potassium cyanide being corrosive poison, would produce hypermia, softening and unceration of the gastro-intestinal track and that in this case he did not nbtice such signs. He further said that potassium cyanide corrodes the lips and the mouth, and none of these signs was on the body. This evidence therefore instead of proving that death was caused by administration of potassium cyanide, to the extent it goes, negatives that fact.”
On perusing the above observation made by the Supreme Court, we also hereby record an order of acquittal of the appellants under Section 201/34, Indian Penal Code.
7. From the totality of the facts and circumstances of the case and on evaluation of the evidence recorded by the learned Sessions Judge, since there is dearth of evidence against the appellants connecting them with the crime, we, therefore, disagree with the conclusion of the learned Sessions Judge. Accordingly, the appeal is allowed. The order of conviction and sentence recorded against the appellants is set aside. The bail bond, if any, furnished by the appellants be discharged forthwith.
L. Mohapatra, J.
I agree.