JUDGMENT
K.P. Mohapatra, J.
1. The respondent Sarat Puri along with some other accused persons was tried by the learned Sessions Judge, Balasore for having committed offences under Sections 302/323 and 325 read with Section 34 I.P.C. and was acquitted of all charges by the impugned judgment which has been assailed in this appeal.
2. Prosecution case, in brief, is that there was an open space between the houses of respondent and the other accused persons, one Jamuna, P.W. 2 and some other prosecution witnesses which was being used as a common passage. On 16-6-82 the respondent along with other accused persons put a fence whereby the common passage was blocked causing inconvenience to P.W. 2 and some other prosecution witnesses. On 17-6-82 at about 3.30 p.m. a quarrel ensued between both parties in course of which it was alleged, the respondent dealt two lathi blows, one on the leg and the other on the head of the deceased (Nabin) resulting in serious bleeding injuries rendering the injured unconscious. Some of the prosecution witnesses were also asaulted by means of fist blows and lathis. The deceased was removed to Bhadrak Sub-Divisional hospital for treatment where he succumbed to the injuries on the next day. Some of the prosecution witnesses were also sent to the hospital for the purpose of examination of the injuries received by them and for treatment. FIR, Ext. 1 was lodged by P.W.1 and investigation commenced. In course of investigation the dead body was sent for post-mortem examination, statements were recorded, seizures were made and after closure thereof, charge sheet was submitted against the respondent and other accused persons. :
3. The defence of the respondent was that they were not responsible for the assault but on the other hand on account of previous enmity, the prosecution party mercilessly assaulted the respondent as well as the other accused persons. They also lodged FIR on account of the assault, but after investigation final report was submitted by the police.
4. It was not disputed at the time of hearing that the death of the deceased was due to homicide.
5. On, consideration of the prosecution evidence, the learned Sessions Judge recorded the following findings:
(i) The occurrence took place near the disputed fence in course of which the deceased was assaulted resulting in his death.
(ii) The respondent and some other accused persons received serious injuries. The prosecution did not explain the injuries and was guilty of suppression of facts. So the prosecution evidence as to the manner of assault on the deceased was unreliable.
6. Having gone through the entire prosecution evidence there is no escape from the conclusion that the aforesaid findings have to be supported. A large number of prosecution witnesses were present at the time of occurrence and most of them have stated that the respondent and some of the accused persons received injuries and all of them were examined by the Medical Officer, P.W. 14. It would appear from his evidence that on 18-6-82 he had examined the respondent Sarat and other accused persons named, Sudarsan, Satru-ghna and Suryamani. One of the acquitted accused persons appeal was preferred against the respondent Sarat and so we do not consider the cases of other injured accused persons. So far as Sarat was concerned, the Medical Officer noticed the following injuries on his person:
(i) Bruise and lacerated injuries of the size of 1″ x 1″ on the back side of the skull.
(ii) Bruise and lacerated injury of the size of 1/2″ x 1″ on the front side of the skull.
(iii) Bruise with a scratch mark of the size of 3″ x 2″ on the outer aspect of the left thigh.
(iv) Multiple bruises of the different sizes on the back.
(v) Bruise of the size of 3″ x 2″ on the left upper arm.
The injuries were found to be simple in nature caused by blunt weapon (vide Ext. A-1). According to the findings of the learned Sessions Judge the respondent received the injuries in course of the same occurrance. It is therefore established that the respondent received the above mentioned injuries in course of the same transaction and the prosecution had absolutely no evidence to explain as to under what circumstances the respondent sustained these injuries. The learned Sessions Judge has made reference of AIR 1975 SC 1478 : (1975 Cri LJ 1079). The State of Gujarat v. Bai Fatima and held as follows:
“To repeat once more, I would say that the evidence on record would show that the injuries on the accused persons were caused at the time of occurrence and that is also the case of the defence. Therefore, according to the law laid down by the Supreme Court the prosecution is bound to explain the injuries on the accused persons.”
On the subject of explaining injuries on the person of the accused by the prosecution, there are large number of decisions. One of the latest being AIR 1988 SC 863 : (1988 Cri LJ 925) Hare Krishna Singh and Ors. v. State of Bihar (para 18):
“The obligation of the prosecution to explain the injuries sustained by the accused in the same occurrence may not arise in each and every case. In other words, it is not an invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence. The burden of proving the guilt of the accused is undoubtedly on the prosecution. The accused is not bound to say anything in defence. The prosecution has to prove the guilt of the accused beyond all reasonable doubts. If the witnesses examined on behalf of the prosecution are believed by the court in proof of the guilt of the accused beyond reasonable doubt, the question of the obligation of the prosecution to explain the injuries sustained by the accused will not rise. When the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and in what circumstances injuries have been inflicted on the person of the accused.”
(From the head note)
In the instant case, the injuries sustained by the respondent though simple as opined by the Medical Officer were not superficial. Two of them were on a vital part of the body namely, the head, both on the front and on the back sides of the skull, The injuries could have been caused by lathi. A heavy blow by a lathi on the head could even cause grievous injury or death of the respondent. Therefore, it cannot be viewed that the injuries were so simple that there was no obligation on the part of the prosecution to explain them. Moreover, not only the respondent but also the other accused persons have also received injuries. So as rightly concluded by the learned Sessions Judge, there was mutual assault between the prosecution party and the accused persons in course of which both parties sustained injuries. This fact, however, was not at all disclosed by the prosecution. Therefore, the inescapable conclusion is that the prosecution did not come with clean hands and was guilty of suppression of the true events which led to the occurrance. This being the position, the prosecution witnesses cannot be wholly believed so as to arrive at the conclusion that the respondent was guilty of the murder of the deceased. In our considered opinion and in view of the law relating to appeal against acquittal, we do not find that it is a fit case for interference.
7. In the result, the appeal is dismissed.
J.M. Mahapatra, J.
8. I agree.