JUDGMENT
B. Panigrahi, J.
1. This appeal filed by the State calls in question the order of acquittal of all the respondents of the offence under Section 302/34 of the Indian Penal Code (for short “IPC”) and respondent Prasanna alias Santosh Kumar Panda of the offence under Section 302/109 IPC passed by the learned Sessions Judge, Dhenkanal, in S.T. Case No. 122-D of 1988.
2. The prosecution story, as described in course of the trial, is as follows :
Deceased Bidyut Bhusan Patnaik was working as a Plantation Assistant in the Analabarene Cashew Plantation operated by the Cashew Development Corporation of Orissa, While discharging his duties, he used to prevent theft of cashew-nuts from the plantation. Prior to the incident, he had also reported against the present respondents for committing theft of cashew-nuts. Respondent Santosh is alleged to have intervened and dissuaded the deceased from taking any action against the culprits, who belonged to the neighbouring villages, for committirig theft of cashew-nuts from the plantation. Thus, the respondents were inimical towards the deceased, as the latter had taken action in preventing them from committing theft of cashew-nuts. On the date of occurrence, i.e., 5.5.1988, the deceased had gone to Dhenkanal to deliver cashew-nuts and returned to the plantation at about 3.00 P.M. At about 4.00 P.M., he went to the local market on his bicycle. As he did not return in time, there was a search to trace him out by his colleagues, who were working in the plantation, but to no avail. On the following day, at about 3.00 P.M., his dead body was found lying inside the plantation with his bicycle after extensive search undertaken by the employees of the cashew plantation with the assistance of the police and the Gram Rakhi. Accordingly, a report was lodged at Kamakshyanagar police-station. In the report, the names of the respondents had been described as the suspects. The O.I.C., Kamakshyanagar police-station (P.W. 17), took up investigation, seized the bicycle, the bag and Ors. belongings of the deceased, a few leaves stained with blood on which the dead body was lying, held inquest over the dead body of Bidyut and despatched the same for post-mortem examination, and seized some incriminating letters from the Divisional Manager of Cashew Development Corporation (P.W. 5) pertaining to complicity of the respondents in the pilferage of pashew-nuts from the plantation. Accordingly, all the respondents
except Santosh were arrested and sent to judicial custody. Respondent Santosh, however, surrendered in court. As it was alleged that P.W. 17 did not conduct investigation properly, the investigation was entrusted to the Crime Branch. In course of investigation, the Crime Branch seized an incriminating letter stated to have been written by respondent Udaya Naik and examined Ganeswar Pradhan (P.W. 1), who is said to be an eye-witness to the occurrence. On completion of investigation, charge-sheet was submitted by the Crime Branch against the respondents.
3. The defence plea was one of complete denial and the false implication of the respondents in the case.
4. The prosecution examined nineteen witnesses in all. The statement of P.W. 1 in court is vital for appreciating the case of the prosecution in so far as the complicity of the respondents is concerned. P.Ws. 2, 5, 6, 9 and 15 are the employees of the Cashew Development Corporation. P.W. 3 was the lessee of the cashew field in question in the year 1987. P.W. 4 is a witness to the seizure. P.Ws, 17 and 18 are the investigating officers. P.W. 19 is the doctor who conducted post-mortem examination over the dead body of Bidyut. In course of trial, P.Ws. 4, 6, 9 and 10 turned hostile and P.W. 11 did not support any aspect of the prosecution case. Consequently, their evidence is of no avail to the prosecution.
5. To sustain the charge against the respondents, utmost reliance was placed on the testimony of P.W. 1, who claims to have witnessed the occurrence on the fateful evening. According to this witness, while going to his sister’s house in village Aluajharana, he found an officer of the Plantation Department going ahead of him on a bicycle. Respondent Udaya suddenly came and assaulted the officer on the back side of his head by means of a Lathi. All other respondents following Udaya also assaulted the officer by Lathis. However, this witness was examined by the Crime Branch about four months after the occurrence. Therefore, the learned Sessions Judge felt that it was unsafe to place any reliance on his testimony inasmuch as he did not state about the incident to any of his co-villagers after he returned to his house. He also did not raise any outcry on seeing the deceased being assaulted by the respondents. It is true that sometimes witnesses become panic stricken and stupefied on seeing the brutal assault caused to a person. But, in this case, it is strange to note that for a period of about four months, P.W. 1 observed stoic silence by not divulging the incident to others including the police officers. P.W. 17, who was the O.I.C. of Kamakshyanagar police-station, reached the spot on the following day of the incident, examined witnessed and
engaged spies to get the clue and collect materials against the culprits. At that time, P.W. 1 did not whisper a word before him that he had seen respondent Udaya assaulting on the back side of the head of the deceased. Therefore, the conduct of P.W. 1 does not appear to be of normal human conduct and thus it would be unsafe to rely on his testimony. Nowhere including the evidence of P.W. 1 there has been an iota of evidence worth the name to implicate the respondents with the gruesome murder.
6. Another significant feature should also be noted. According to P.W. 1, the incident had taken place on the road, which he witnessed while going to his sister’s house. In the evidence of P.W. 17 nowhere it is indicated that there were blood spots on the road. The dead body was lying inside the cashew field. Had the deceased been dragged from the road inside the cashew field, there must have been trail of blood. But, no evidence has been led by the prosecution to that effect, Thus, in our opinion, the place of occurrence become doubtful, that is, whether it was inside the cashew field or on the road. In case the incident had taken place inside the cashew field, it would be out of question for P.W. 1 to have seen the murder alleged to have been committed by the respondents.
7. Turning to the medical evidence of P.W. 19, it is seen that the death was on account of asphyxia as a result of throttling and the external injuries found on the dead body of the deceased might be in course of throttling. While the evidence of P.W. 1 is that the deceased was assaulted by Udaya on the back side of his head by means of a Lathi, it is curious to note that P.W. 19 did not notice any injury on the back side of the head of the deceased. Therefore, the version of P.W. 1 is shrouded by cloud as regards the injury. It is true that while appreciating the direct evidence of the eye-witness as well as the medical evidence, the eye-witness account shall be preferred to the medical evidence. But, in this case, since there was no injury on the head of the deceased, the version of P.W. 1 that respondent Udaya gave a blow on the back side of the head of the deceased appears to be doubtful.
8. P.W. 18 is the investigating officer appointed by the Crime Branch. On perusal of his evidence, it has transpired that he could locate P.W. 1 only after collecting information from the spy engaged by him. If that be so, how could P.W. 17 not ascertain about the presence of P.W. 1 at the time of occurrence even after engaging spies ? From the statement of P.W. 18 it further transpired that P.W. 1 was not in visiting terms with his sister. If that be so,
the testimony of P.W. 1 that on the date of occurrence he was going to the house of his sister stands falsified.
9. Considering the totality of the facts and circumstances of the case and after going through the judgment assailed before us, we do not see any reason to interfere with the order of acquittal of the respondents. Thus, the appeal has no merit and the same is dismissed.
10. It is submitted that respondent Udaya Naik is still in custody as he did not pray for bail. He be released from jail custody and set at liberty forthwith if his detention in jail is not required in connection with any other case.
P.K. Mishra, J.
11. I agree.
