A.S. Naidu, J.
1. The order passed by the learned Addl. Sessions Judge, Bargarh on 7th February, 1989 in S.T. Case No. 142/ 12 of 1985-87 convicting the appellants under Sections 323/336, I.P.C. and sentencing them to undergo S.I. for six months and one month respectively with a further direction that both the sentences would run concurrently is assailed in this Criminal Appeal.
2-3. The prosecution case in brief is that on 20-6-1985 at noon a dispute crept up with regard to recital of a song by Sarojini Sahu-P.W. 12. It was alleged that co-accused of the appellants, namely, Panibudi Podh (since acquitted), took exception to the lyric and a quarrel ensued. Accused-Saroj Podh-appellant No. 1 who happens to be the son of Panibudi Podh intervened and allegedly caused hurt to Sarojini Sahu by pelting stones at her. On coming to know about the said fact Radhamohan Sahu, father of Sarojini Sahu, and her brother Sanat Kumar Sahu-P.W. 13 joined took exception at the behaviour of Panibudi Podh and appellant No. 1 and moved the panchayat. In the meeting held by Panchayat, the villagers tried their best to restore good will and amity between the families by compromise but then it is alleged that the accused person did not obey the decision of the Panchayat and left the meeting. Deceased Radhamohan Sahu thereafter returned to his house. On the way the accused persons assaulted him and his son Sanat Kumar Sahu-P.W. 13 by pelting stones at them. Due to said assault Radhamohan Sahu sustained injuries on his head. He was removed to Padampur Hospital and thereafter he was referred by the doctor-P.W. 7 to Burla Medical Hospital for treatment and was admitted there. Laxman Sahu-P.W. 1. brother of Radhamohan Sahu, came to Padampur P.S. and lodged the F.I.R. vide Ext. 4. During the course of treatment at Burla Medical Hospital Radhamohan Sahu breathed his last on 26-6-1985. The fact of his death being informed by P.W. 8, the doctor to Burla Police the case turned to one under Section 302, I.P.C. The S.I. of Police-P.W. 16 held inquest over the dead body and submitted a report vide Ext. 6/1. P.W. 17 who initially took up investigation, visited the spot being identified by Laxman Sahu-P.W. 1, seized blood-stained earth and sample earth as per Ext. 1, some stones from near about the spot as per Ext. 4, a pair of chapals and a stick from the house of Basu Nag one of the accused as per Ext. 3, and made over the case for further investigation to P.W. 18 as per the direction of S.D.P.O. In course of investigation post-mortem was conducted over the dead body by P.W. 11. On completion of the investigation, chargesheet was submitted against the accused persons for alleged commission of offences under Sections 147/302/323/326. I.P.C. read with Section 149, I.P.C.
Defence plea was innocence. To substantiate the case prosecution got examined as many as 18 witnesses. At the other hand no oral or documentary evidence was adduced by the defence.
4. The trial Court after vivid discussion of the oral evidence came to the conclusion noticing certain material discrepancy in the evidence of P.W. 1 observed that his evidence being hearsay, could not be relied upon. Similarly the Sessions Court also did not place reliance on the evidence of P.Ws. 2 to 6 and 9 to 10. It is pertinent to mention here that P.Ws. 7 and 8 were two doctors. The Court below relying upon the evidence of P.Ws. 12, 13 and 14 coupled with the evidence of P.Ws. 7 and 8, the post-mortem and injury report-Ext. 5 believed the pros ecution story with regard to injuries caused to Radhamohan Sahu by pelting stones in the midst of the village. But then it came to the conclusion that there was neither any mens rea nor any intention to kill Radhamohan Sahu. The Court below further observed that having regard to the facts and circumstances under which the occurrence took place, it could not be said that the accused persons ever intended to cause death of Radhamohan Sahu or had the knowledge that the assault was likely to cause death. On the basis of such conclusion and as all the injuries were caused with regard to pelting of stones the Court below held the accused persons liable for commission of offence under Section 336 I.P.C. The Court below further came to the conclusion after scrutinizing the evidences of P.Ws. 12, 13 and 14 there was nothing against Basu Nag accused No. 2 and Panibudi Podh accused No. 5 and acquitted them of the charges. The learned Addl. Sessions Judge however found the present appellants guilty of commission of offences under Sections 323/336/34, I.P.C. and convicted them thereunder, while acquitting them of rest of the charges. After hearing learned Counsel for the appellants the Court below sentenced the appellants to undergo S.I. for six months under Section 323, I.P.C. and one month under Section 336, I.P.C. with direction that the said sentence would run concurrently. The said order of conviction is impugned on the ground that the learned Addl. Sessions Judge having disbelieved most of the witnesses, namely, P.Ws. 1, 2, 3, 4, 5, 6, 9 and 10 acted illegally and with material irregularity in convicting the appellants only on the basis of evidence of three witnesses, being P.Ws. 12, 13 and 14, who happen to be respectively the daughter, son and wife of the deceased. It is further urged that there was ample evidence that Panibudi Podh one of the accused had sustained injury, which went unexplained by the prosecution and as such, the said Court ought to have held that the prosecution had exaggerated the story and had not come with clean hands. According to learned Counsel for the appellants there were gross discrepancies in the evidence of P.Ws. 12 and 13 and as such the order of conviction should not have been passed on the basis of their evidence. It is further stated that as only one injury was noticed by the doctor who had examined the deceased at the first instance and that being a mere abrasion, no conviction or sentence should have passed against the appellants. The statements made by learned Counsel for the petitioners are strongly repudiated by learned Counsel for the State:
5. During hearing, learned Counsel for the appellants could not point out arty ground, on the basis of which the aforesaid order of the Court below could be sustained. It is rather surprising that while this appeal was heard absolutely there was no assistance by the State counsel. Be that as it may, although the matter is pending since 1999 the State counsel, it seemed, had no anxiety for its disposal without further delay. On perusal of the evidence it appears that in fact P.W. 1 Laxman Sahu had exaggerated the entire prosecution story. His evidence reveals that he was over-zealous to see the accused person convicted. Most of the statements of P.W. 1 were hearsay. He was not present at the spot, His evidence also suffered from vital discrepancies inasmuch as it varied from the statements made by P.W. 12, stated to be the eye-witness to the occurrence.
6. In view of the aforesaid facts the Court below has rightly discarded the evidence of Laxman Sahu-P.W. 1. I find no infirmity in the impugned order. So far as P.Ws. 2, 5, 13 are concerned it appears that though they stated to be present at the relevant time, such statement is shrouded in suspicion. The evidence of the aforesaid witnesses leads to a conclusion that they were interested in the prosecution and therefore that did not inspire confidence. The same was also rightly observed by the trial Court. But then P.W. 12, stated to be an eye-witness and was present during the first part of the occurrence who had also received some injury. She had clearly narrated the entire episode. Though she was cross-examined, nothing was brought out from her evidence to discredit her. P.Ws. 13 and 14 were also stated to be eye-witnesses to the occurrence, which took place in the midst of the village road. The aforesaid two persons named all the appellants attributing specific overt acts to them. The evidence of P.Ws. 13 and 14, coupled with the injury report Ext. 5 granted by P.W. 7 the doctor who examined the deceased at very first instance, clearly reveals that an injury was sustained by the deceased on his forehead. The evidence of other two doctors i.e. P.Ws. 8 and 11 also corroborates the statements made by P.Ws. 13 and 14. A cumulative reading of the statements of the aforesaid witnesses coupled with other materials produced, leads to an irresistible conclusion that the appellants were the authors of the injury caused to Radhamohan Sahu. The finding of the Court below that the accused persons were not guilty of the offence under Section 302, I.P.C. has attained finality, as the State Government has not preferred any appeal against that. Therefore that aspect cannot be gone into in this appeal.
7. After hearing learned Counsel for the parties and after going through the evidence once again this Court arrives at a conclusion that the accused-appellants were the authors of the alleged crime and they had caused injuries on Radhamohan Sahu by pelting stones. And as such the findings arrived at by the Court below convicting the appellants for commission of offences under Sections 323/336/34, I.P.C. do not suffer from any infirmity or illegality. I do not find any reason to interfere with the same and confirmed the said findings.
8. Learned Counsel for the appellants further submits that the occurrence took place in the year 1985. All the appellants are of tender age. The same cropped up due to dissension in the village and no specific motive has been attributed to them. The injuries caused were in the spur of a moment that apart 21 years have passed in the meanwhile. Considering all these facts and the reason for which the dissension cropped up which culminated in pelting stones and causing injuries by a young group of persons at the village and the submission made by learned Counsel for the State that in the meanwhile the appellants have served sentence for 31/2 months out of six months. I reduce the sentence imposed on them to the period already undergone and instead impose a fine of Rs. 2,000/- each of the appellants out of which a sum of Rs. 6,000/- shall be paid to P.Ws. 13 and 14.
The Criminal Appeal is accordingly allowed in part.