Misra, J.
1. All the 57 accused persons are the respondents. They were prosecuted under Sections 447, 342, 148, 302/149, 395/149, 323/149 and 307/149, I. P. C. and have been acquitted. All the accused were notcharged under all the sections.
2. The learned Sessions Judge has well summarised the case for the prosecution and the defence. The facts may be stated in brief. Thedispute centres round about nine acres of landsituate in village Narendrapur. The lands belongto deity Mahimamani under the marfatdari ofRaja of Kanika. Balaram Das of the neighbouring village Karanjamal was admittedly in possession as Bhag tenant for a period over 20 years before 1959. The prosecution case is that Balaram also continued in possession in 1959, 1960 and1961 and performed all the agricultural operationsin the year 1961. The occurrence took place atabout moon on 28-11-1961. For about 6 or 7 daysprior to the date of occurrence Balaram had started reaping paddy from those lands. On 26-11-1961 Accused-1 (Chakradhar Behera) accused Nos.2 (Gani Parida), 15 (Batasi Rout) 16 (Agani Barik),55 (Santha Charan Behera), 56 (Chaturbhuj Behera)and 57 (Dinabandhu Biswal) had a conspiracy atBhadrak to forcibly oust Balaram from reapingpaddy from the said lands. On the morning of28-11-1961 the accused came in a crowd armed withlathis and other weapons from village Manipur towards Narendrapur. On the way P. W. 25(Gajendra Parida) and P. W. 16 (Ram ChandraMalik) were dragged. Near about Narendrapurthe crowd stopped. Accused Nos. 2, 8 (JairamBal), 9 (Tima Bal), 15, 16 and 55 proceededtowards the lands where Balaram and his labourersP. W. 1 (Ram Chandra Bank), 3 (Bidhu BhusanMohasty), 4 (Kalandi Behera), and others werecutting paddy. Deceased Naka Kar had come tothe spot to realise certain dues from Balaram. Accused No. 2 asked Balaram and his labourers asto why they were cutting paddy from his lands.Balaram retorted by saying that he was cuttingpaddy from his own lands. Accused No. 2 thereupon dealt a blow on Balaram with the woodenhandle of a Tenta. Naka intervened and protested.Thereupon accused 2 gave a signal as a result ofwhich about 150 persons, who had gathered near Narendrapur, came running Jo the spot. Seeing this large crowd Naka, Balaram and his labourers fled away but were chased by the party belonging to accused 2. Naka, Balaram, P. Ws. 1, 3, 4 (Kalandi Behera), 5 (Dinabandhu Barik), 9 (Gadadhar Kar) II (Hagar Jena), 27 (Kopa Das) and 47 (Pagal Barik), ten persons in all ran away towards village Karanjmal at a distance of half a mile from the aforesaid lands. All of them entered inside the house of Balaram and bolted the Sadar door. The accused entered inside Balaram's house by breaking open the sadar door and also by scaling over the thatched roof and through Bari. Balaram and his men retreated towards the Marai room and ultimately into the Marai room. As the doors and windows were either broken or lifted, all of them came out. They were taken to Danda in front of Balaram's house with their hands tied. All of them were assaulted there. Balaram's wife P. W. 29 (Annapurna Dei) and her foster mother P. W. 2 (Suka Bewa) were also assaulted. The mob carried away 2 bell-metal thalis, two garas and some other ornaments.
From the Danda Balaram and his men were led to a jungle called as Haripur Adia, which is at a distance of about half a mile from Balarm's house and also in the vicinity of the Mahimamani lands. Near the jungle some of the accused persons relentlessly and indiscriminately assaulted P. W. 1 who fell down unconscious. Some one then shouted that Naka was running away. The very accused persons, who were assaulting P. W. 1, pursued Naka and overtook him on the field of accused 14 (Punananda Parida). Naka was caught and assaulted mercilessly by accused Nos. 2, 13 (Bhagaban Behera) and others with various deadly weapons. Accused Nos. 2, 14, 15 and 16 tied the hands and feet of Naka and threw him near the place where P. W. 1 was lying. P. Ws. 17 (Bimbadhar Barik), 18 (Bidyadhar Palai), 19 (Sukdeb Palai), 26 (Santha Barik) and 47 carried P. W. 1 in a cot to Ghanteswar hospital for treatment. Naka was also carried to the hospital and he was found to be dead on the way at Panchatkri.
3. Accused-1, in his statement under Section 342, Cr. P. C., states that he was a member of the Congress party from 1921 to 1957. He was the leader of the tenants party from 1921 to 1956 against the Raja of Kanika. In 1952 he stood as a candidate in the election for a seat in the Assembly -- One Rabinarayan Das, an employee of the Raja, of Kanika and the sister's daughter's husband of Sri Nilmani Routray, opposed him and failed. In 1957 the Raja of Kanika joined the Congress. That very year accused I contested for a seat from two constituencies against the Congress -- one from Chandbali constituency where Shri Nilamani Routrai, the Home Minister, contested him, and the other was from Aul where the Raja of Kanika contested him. Accused No. 1 lost from both the constituencies. From 1957 onwards he was preparing the ground for the next election. As a member of the Assembly, in 1952 he had criticised the actions of one Waz Mohammad, the then S. I. of Chnadbali. In 1959 Waz Mohammad was posted as Circle Inspector of Chandbali Circle. He sided with the Congress party and started oppressing the members of the party of accused-1, and tried to implicate accused No. 1 and his party members in the various crimes committed in that area. In 1961 election accused-1 contested Shri Nilamani Routrai and was defeated. This criminal case and various other cases have been foisted on him and his party members falsely by Shri Routrai, the present Home Minister, in collusion with the police and the members of the local Congress Party. In fact Shri Routrai was camping at Bhadrak in 15-12-1961 and at Chandbali on 21-1-1962 and, 3-2-1962, and got him arrested at Bhadrak on 3-2-1962, In substance, accused-1's defence is that all the 56 other accused persons are members of his party who are being harassed by the Police at the instance of the Home Minister whom he contested in the last elections as he is trying to further consolidate his position in the constituency to defeat the Home Minister.
Accused-2 stated that he supported accused No. 1 during the last mid-term election. The Circle Inspector Waz Mohammad threatened him with, dire consequences if he would trespass into the lands at Mahimamani. He has been inducted as a tenant into these lands in 1959 and is in cultivation possession for the three years 1959, 1960, and 1961. Balaram was the previous tenant. He fell into arrears of rent and surrendered his lands where after accused-2 was inducted. On 19-11-1961 D. W. 10 (Bidyadhar Rout), an employee of the Raja of Kanika, effected the appraisement of tha crops. He cut paddy from two acres of land from 19-11-1961 to 23-11-1961. From 24-11-1961 to 27-11-1961 he was at Bhadrak in connection with certain cases. He reached home on 27-11-1961 at 9 p.m., when he got the information that Naka, Balaram, P. Ws. 1, 3, 18 and others had gone to Karendrapur to cut paddy from the disputed lands. In the morning of 28-11-1961 he started for Narendrapur with some Bhadraloks and 2 Mulias. On the way he met accused-16 and some others. In all 9 persons went to the spot. There he found Naka, Balaram. P. W. 1 and others, about 14 in numbers cutting paddy. On his protest Naka and P. W. 1 abused and assaulted him. They tried to run over accused-16. There was golmal and his men were chased, but they successfully ran away to safety. On 29-11-1961 he went to Bhadrak and got himself medically treated.
Acused Nos. 12 (Baidhar Parida), 16, 23 (Durga Charan Behera), 36 (Hagar Behera), 37 (Banshidhar Naik), 39 (Banshidhar Barik) 46, (Murali Dhar Barik) and 50 (Daina Behera) admit their presence on the spot with accused-2 and give similar versions. Thus in all 9 persons admit their presence on the spot in their statement under Section 342, Cri. P. C. Accused No. 16 is the brother of accused-1. Accused No. 4 (Gagan Behari Behera) and accused-17 (Gangadhar Behera) are the sons of accused No. 56. Their statements are similar to that of accused No. 1.
Accused-56 admits that 1 Dauli, 2 Kataris and 6 lathis, which are usually kept by agriculturists were recovered from his house. The other weapons alleged to have been seized from his house were brought by the crowd accompanying P. W. 69 (P. C. Patnaik), Officer-in-charge. The case has been falsely foisted on him as he supported the party of accused No. 1 against the Home Minister.
The other accused persons gave similar statements and denied their presence.
4. The learned Sessions Judge recorded hisfindings as follows:
(i) The prosecution case of conspiracy atBhadrak has not been established.
(ii) In the area the Congress party is strongly opposed by the party of accused-1 after his cessation from the Congress on 1957. There is bitter feeling between the rival parties. The witnesses for the prosecution are either members or sympathisers of the Congress party while the accused persons and the defence witnesses are either members or sympathisers of the rival party. It appears this position was accepted by Sri M. S. Mohanty, Special Public Prosecutor, who conducted the case and by the advocates for the accused.
(iii) The disputed Mahimamani lands in village Narendrapur were in possession of the accused No. 2 Gani Parida in the years 1959, 1960 and 1961 and he had performed all the agricultural operations. The prosecution case that Balaram was in possession for these years is not true.
(iv) The prosecution version that Balaram had reaped the paddy from these lands about 7 or 8 days preceding 28-11-1961 is not true. The defence case that accused No. 2 reaped the paddy from two seres of land from 19-11-1961 to 23-11-1961 is acceptable.
(v) The prosecution story that the party of accused-2 came in two batches and that Balaram, Naka and P. W. 1 and some other prosecution witnesses were pursued upto Balaram's house wherein they were assaulted after some acts of violence to the house of Balaram and that from there they were taken to Haripur Adia where Naka and P. W. 1 were mercilessly assaulted, is a concoction and that the prosecution has suppressed the true version of the story.
(vi) The defence case, that the entire occurrence took place on the Mahimamani lands, is true.
(vii) On the admission of the prosecution witnesses, Balaram's party constituted 22 in number, if not more, including Naka and Balaram. The party of accused No. 2 was larger and stronger and its strength cannot be less than 22.
(viii) On Gani challenging Balaram, the accused assaulted Balaram's men and in mutual marpit Balaram, Naka, P. W. Nos. 1, 3, 4, 11 and 47 and accused Nos. 2 and 16 received injuries.
Though the learned Sessions Judge found that Balaram, Naka. P. W. 1 and others received injuries in a mutual marpit on the Mahimamani lands, he acquitted the respondents on the finding that as the prosecution did not come forward with the true version of the story and distorted the case by a concocted version, it was difficult for him to find the accused guilty. The appeal has been filed against this order of acquittal;
5. The finding of the learned Sessions Judge that there is no satisfactory evidence in proof at conspiracy has not been seriously assailed before us. The learned Judge has carefully examined the evidence of P. Ws. 65 (Bhikari Charan Naik), 68 (Krushna Chandra Mohanty), 46 (Chandramani Bala), 51 (Hadibandhu Padhan), 49 (Budhiram Behera), 54 (Lalbehari Naik), 35 (Gandharba Panda) 34 (Gokulananda Kar), 37 (Santba Charan Mohanty) and 43 (Hrushikesh Naik) and held that the charge under Section 120B, I. P. C. had not been brought home. No substantial criticism could be advanced before us to take a contrary view. It is unnecessary to repeat the same reasonings as given by the learned Judge in paragraphs 37 and 38 of his judgment. In agreement with him we hold that the charge under Section 120B, I. P. C. has not been established.
6. There is serious controversy between the parties as to the possession of Mahimamani lands. The evidence on record satisfactiorily establishes that Gani Parida was in possession jn the years 1959, 1960 and 1961 and Balaram was not in possession. This is fully established even from the admissions made by the prosecution witnesses.
(On examining the evidence, his Lordship concluded that Gani was in possession of the land, That the strength of Gani's party was the same as that of the Bajaram's party and that it was Gani and his men who started the assault. The Judgment then proceeds as follows: -)
7-9. Gani's party would constitute an unlawful assembly, the common object of the persons composing the assembly being by means of criminal force or show of criminal force to maintain his possession unless this was so done in exercise of right of private defence. Under Section 99, I. P. C. there is no right of private defence in cases in which there is time to have recourse to the protection of public authorities. It is necessary to examine if Gani had time to have recourse to protection of public authorities.
(After discussing the evidence the judgment continues as under:-)
Thus Gani Parida got positive information of the attack on his lands by Balaram's party by forcibly reaping away the paddy not only at 9 P. M. on 27-11-1961 but also in the morning of 28-11-61 as a result of which he started for Narendrapur to protect his property.
10. Mr. Asok Das raised the following contentions on right of private defence of property.
(i) Protection of public authorities to prevent removal of paddy means such protection as can preserve the status quo.
(ii) The quantum of proof for right of private defence of property is not as heavy on the accused as it is on the prosecution to establish the various elements of an offence.
(iii) On getting information that his lands would be attacked, accused -2 went to the spot with his men to verify the correctness of the information and he had no reasonable apprehension of danger to his property until he reached the spot.
(iv) The Police Station at Ghanteswar had no jurisdiction over the lands at Narendrapur. The Ghanteswar Police could not have rendered any assistance to prevent the offence committed by Balaram's party.
(v) P. W. 69, the Officer-in-charge Bansara Police Station, was inimical towards Gani Paridat and the party men of Chakradhar Behera and no assistance could have been expected from the officer-in-charge even if accused No. 2 would have approached the police.
These contentions require close examination, and particularly because the learned Sessions Judge dealt with this part of the case in a somewhat casual manner in paragraph 32 of his judgment which only contains the finding without any discussion of the relevant materials in that regards.
The first contention that protection of public authorities must mean such protection as can preserve the status quo is legally correct. Gani had ripe paddy on his lands. Protection from public authorities would be effective only if the removal of the paddy crop by Balaram's party men could be prevented. Bansara Police Station does not lie on the way from Manipur to Narendrapur. If at person goes via Bansara to Narendrapur, it would definitely take much longer time and distance of 3 to 4 miles more shall have to be covered. That by itself, however, is not sufficient reason why Gani should not have taken recourse to the protection of public authorities. The fight betweens the parties took place near about 12 noon. If Gani could collect more than 22 persons to protect his property, he could easily send one or two persons to give information to Bansara police station while himself proceeding to the spot with his men to protect the property so as to maintain the status quo in case the police did not reach the spot in time. But there is no evidence on record that if one or two persons could be sent to Bansara Police Station the protection of public authorities could not have been secured so as to effectively avert the danger and prevent Balaram from removing the crops.
By 9 p. m. on 27-11-1961, Gani got positive information creating a reasonable apprehension of danger to his property next morning. The accused have failed to establish that Balaram's men could not have been prevented from removing the paddy if the Officer-in-charge at Bansara Police Station, could have been approached.
Ghanteswar is adjacent to village Manipur in which accused-2 resides. An intimation to P. W. 50 would have been effective inasmuch as he could have sent an information through his Police Constable or even by wireless to proper authorities to avert the danger. Mr. Das contends that Ghanteswar police had no such powers and could not have taken effective steps. This argument has no force. Chapter XIII of the Criminal Procedure Code deals with preventive action of the Police. Section 149, Cri. P. C. prescribes that every Police Officer may interpose for the purpose of preventing, and shall, to the best of his ability, prevent the commission of any cognizable offence. Under section 150, Cr. P. C., every police officer receiving information of a design to commit any cognizable offence shall communicate such information to the Police Officer to whom he is subordinate, and to any other officer whose duty is to prevent or take cognizance of the commission of any such offence. This distinction between Chapters XIIIand XIV of the Code of Criminal Procedure may not be of real importance and the two Chaptersare not mutually exclusive. Chapter XIV dealswith information to the Police and their powers to investigate. The procedure for investigation -- both into cognizable and non-cognizable offences -- is prescribed in the Chapter. Outside Part V of the Code, a Police Officer may do many other things,such as, he may take preventive action and disperse an unlawful assembly and he may do these things even without investigating into an offence-- Read a well discussed judgment in Mani Mohan Ghosh v. Emperor, AIR 1931 Cal. 745. In Emperorv. Raghunath Venaik, AIR 1925 All 165, Sulaiman, J. observed that the word 'interpose' connoted the idea of active intervention and not merely apprehension by word of mouth. Again under Section 150, Cr. P. C. P. W. 50 could have communicated the factum of apprehension of attack on the property of Gani to the officer-in-charge of Bansara P. S. to whom he was subordinate so that commission of the offence could have been prevented. Even if the area was party ridden, there was no difficulty for the Ghanteswar Police to communicate to the Bansara P. S. We hold that accused - 2 had sufficient time to take recourse to the protection of the Police at Ghanteswar and at Bansara P. S. Under Rule 147 (a) of the Orissa Police Manual 1940, Vol. I, when the report of a crime relates to an occurrence outside the jurisdiction of the officer to whom the report is made, he shall take action as laid down in Sub-rule (a) of Rule 143, and when the circumstances of the case warrant it, shall take such steps as are necessary for the detection of the case and the apprehension of the offender pending arrival of the Officer empowered to investigate. Rule 143 (a) deals with recording first information of cognizable crime mentioned in Section 154, Cri. P. C. These Rules clearly support our conclusion.
Mr. Das places reliance on Queen-Empress v. Narsang Pathabhai, ILR 14 Bom 441 in support of the contention that the third clause of Section 99 must be read with the first clause of Section 105, I. P. C. and argues that on identical facts it was held in that case that there was right of private defence of property. There can be no dispute over the proposition that the third clause of Section 99 must be read with the first clause of Section 105, I. P. C. which lays down that the eight of private defence of property commences when a reasonable apprehension of danger to the property commences. In the aforesaid case, their Lordships held that reasonable apprehension of danger to the property did not commence as the accused did not receive any definite information that there would be an attack on the property in the night. This decision is distinguishable inasmuch as in the present case the accused had definite information of attack on the property in the next morning as already discussed. It must be emphasised that, the right commences not when the actual danger to the property commences but when there is reasonable apprehension of danger. This is based on sound principle as the apprehension of danger is to be followed by an approach to the public authorities for protection. Mr. Das contends that until Gani's party reached the field there was no reasonable apprehension of danger to the property as Gani wanted to verify the correctness of the information received. We have rejected this contention on facts and we hold that a reasonable apprehension of danger to the property commenced when Gani received the definite information of attack on his property on the 27th evening and 28th morning, and that then he had time to have recourse to the protection. It is not suggested for a moment that Gani would have rest content at home by merely sending information to the Police. He could have proceeded with his own men to the field and could have exercised his right of private defence of property at the spot if he would have found that the protection of public authorities was not available despite his information. Then the danger to the property would have been imminent and he could have resorted to self help to maintain the status quo and prevent removal of crops. In Paras Ram v. Rex, AIR 1949 All 274 proposition No. (vii) couched as .--
'If the apprehension of danger has actually commenced and if one can have recourse to the public authorities before an actual injury is caused to the property or right, he must do so, or else he will lose his right of private defence. This contingency usually arises when one has got definite information about the other side proceeding to-words the land in dispute and the public authorities are within such a reach that one could inform them before actual damage to the property is done.'
The dictum lays down the law correctly.
Mr. Das next contends that the police was against Chakradhar Behera's party supporting the cause of Sri Nilamani Routraj, Home Minister, and even if the police were approached, Gani could not have got any protection. The basis for such a contention has not been established. In his examination under Section 342, Cr. P. C. Gani does not take to the plea that either P. W. 69 or the Police at Ghanteswar were against him. He made certain allegations against Circle Inspector Waz Mohammad who was transferred soon after the occurrence. A large many circumstances arising subsequent to the occurrence have been referred to showing that P. W. 69 had an adverse attitude and was inimical towards Gani's party. It was suggested that the I. O. (P. W. 69) assisted Balaram in cutting and removing paddy after the occurrence. A mention was made in the complaint petition (Ex. K.) before the Magistrate to that effect. This allegation is not correct as would appear from the fact that the I O. seized 170 bundles of paddy cut on 28-11-61 and also 155 bundles of paddy cut on 30-11-61 under seizure list (Ext. 7 (21)) dated 30-11-61 and the paddy was kept in the zima of P. W. 37. It was similarly contended that the F. I. R. was not drawn up at the earliest opportunity even though the information regarding the commission of cognizable offence was brought to his notice by P. Ws. 21, 3, 4, 5, 42 and 44. Even assuming that the F. I. R. was not drawn up in time, a matter which we would discuss later, no conclusion or inference can be made that the police were blassed so as not to give protection to Gani and his party. It can at best amount to an error of judgment in the discharge of one's duty. Some emphasis was also laid on the fact that some interpolation was madein Ex. 16 in adding the word Dhanakuta. Though there is some room for such criticism, it is difficult to say when and at whose instance the interpolation, if at all, was made. The document is also not of vital character to lead to the inference that P. W. 69, a responsible Police Officer, would be a party to it. Comments also have been made on the fact that the requisition made by the police for the medical examination of the injured wassomewhat delayed and that two of the accused were not medically examined even though there were injuries on their bodies. It cannot be denied that there are some laches on the part of the I. O. on many of these matters, but none of these criticisms either independently or cumulatively establish the fact that the Police at Bansara or Ghanteswar would not have afforded protection to Gani. Mere defects in the investigation at some stage or the other would not lead to the conclusion that any allegation made by the members of Gani's party would not be attended to by the police. From the evidence of P. W. 68 it is clear that he on prior occasions on the complaints of some of the accused persons started cases and proceedings against some of the prosecution witnesses. P. W. 69 in his cross-examination stated:
'Accused Santha started a case against Ram Barik, deceased Naka Kar and several others in all 27 persons during the time when I was in charge of Bansada. I submitted charge-sheet in this case against Rama Bank and some others and not against all. I do not recollect if I submitted charge-sheet only against five. As I was busy inconnection with investigation in this case, my Junior Officer had submitted charge-sheet.'
Some comment was made that ultimately charge-sheet was submitted by the junior officer and not by P. W. 69 himself. But it is well known that the junior has to work on the direct control and supervision of P. W. 69. It is unnecessary to examine at length all the criticisms urged in this connection. It is sufficient to say that the accused had failed to establish that the relationship between them and the police was such that they could not have got protection from them. As we have already said, Gani could have sent information to the police, simultaneously proceeded towardsthe land with his own men intimating the very fact to the police and that if the police would not have arrived in time to assist him to maintain the status quo, he could have resorted to self help in protecting his property from acts of aggression.
Mr. Das very seriously contends that the accused was merely to make out a prima facie case of the existence of right of private defence. This aspect of the matter we have discussed in a large number of cases. A Bench of this Court had fully examined the law in Sira alias Simanta Patra v. State, Criminal Appeal No. 8 of 1963 (Orissa) by reference to some of the Supreme Court decisions also. Under Section 105, Evidence Act, the onus is on the accused to prove the existence of circumstances bringing the case within any of the general exceptions, and a Court shall presume the absence of such circumstances. It is, however, well settled that the burden on the accused is not of the same nature as one on the prosecution, to establish existence of the offence beyond reasonable doubt. The nature of the burden on the accused to bring its case within the general exceptions is analogous to that resting on the plaintiff in civil cases. The juristic principle in civil matter is that preponderance of probability is the basis of success. It is also well accepted that the accused need not prove the general exception by adducing positive evidence. The same can be established through the prosecution evidence also. If from the entire evidence on record it is probable that the defence version may be true, they are entitled to a verdict in their favour even though the truth of the version might not have been proved beyond, reasonable doubt. So far as this Court or the Supreme Court are concerned there is no authority taking contrary view. In this case, the accused did not take to the plea of right of private defence, We have already found that the plea of right of private defence was not available to the accused as there was sufficient time to take recourse to the public authorities. There are no materials on record to support a finding that the defence contention that the accused had no time to take recourse to the public authorities, may be true even though the truth is not established beyond reasonable doubt. The dictum 'that the accused need merely make out a prima facie case' means nothing else other than what I have stated that a preponderance of probability is to be established by the accused as in civil cases. We would accordingly hold that the accused had no right of private defence of property.
Accused 2, 12, 16, 23, 36, 37, 39, 46 and 50 admit their presence on the spot in their statements under Section 342, Cr. P. C. The evidence regarding the presence of others is not reliable as in comes from the mouth of not only partisan but also highly interested and inimical witnesses. Admittedly some of the persons carried lathis. These nine accused persons are therefore liable to be convicted under Section 148 I. P. C.
11. Before taking up the next topic I will proceed to examine if the F. I. R. (Ext. 19) is admissible in evidence. It was recorded on the statement of Balaram at 11 P. M. on 28-11-61. Balaram died before the commitment proceedings started. Mr. Das contends that F. I. R. is inadmissible in evidence as it was recorded in the course of investigation and that it is admissible only for the limited purpose of establishing Balarain's conduct under Section 8, Evidence Act. In order to appreciate his contention, certain facts are to be mentioned in detail. P. W. 21 was cutting paddy from Mahimamani lands as a labourer of Balaram. He ran away from the field to Bansada Police Station which is at a distance of 4 miles from the place of occurrence and reported the incident to P. W. 69 on the basis of which Station Diary Entry Ex. 22 was made. In Ex. 22, there is reference to the fact that Rama Barik, Nakakar and others were cutting paddy from the field of Balaram. Gani Panda with about 400 people reached the spot and apprehending breach of peace. P. W. 21 stealthily came to the Police station. He did not say what happened on the spot and apprehended serious breach of peace. P. W. 69 states that after making station Diary Entry Ex. 22 he proceeded to Karanjmal. At Mohuljhar he met P. Ws. 3, 4 and 5 who accompanied him. P. Ws. 3, 4 and 5 did not disclose the occurrence to him. At Mohuljhar, P. W. 69 received information from P. Ws. 42 and 44 that at Guansal a large number of persons connected with the murder had gathered in the house of Santha Behera (accused 55). P. W. 44'3 evidence is to the effect that
'Santha Behera aforesaid was shouting aloudthat we have killed two persons at Karnajmal andpersons of Jaleswarpur who are in Guansal wouldbe beaten and if police comes they would also bebeaten. x x x x x I reported to Munshi Babu all that I had heard andseen.'
P. W. 42 also deposed in file same strain. Mr. Das contends that P. W. 69 thus obtained definite information of the factum of the commission of cognizable offence of murder at Karanjmal in which accused Santha and other assembling in his house at Guansol were involved. P. W. 69 deposed that after obtaining this information, he decided to go to Guansol first and not to Karanjmal which was his first destination. At Guansol, he searched the house of accused Santha Behera, arrested some of the accused persons who had assembled there, seized some of the weapons which have been exhibited and later on in the evening proceeded towards Karanjmal where Balaram lodged the First Information Report at 11 P. M.
F. I. R. is not a substantive piece of evidence. It can be used either for corroboration under Section 157, or for contradiction under Section 145 of the Evidence Act, of the maker of the statement. Admittedly Balaram died a natural death long after the occurrence but prior to the initiation of the commitment proceeding. F. I. R. (Ex. 19) cannot, therefore, be used either for corroboration or for contradiction of the maker who is dead. The statement in Ex. 19 does not relate to the cause of Balaram's death, or to any of the circumstances of the transaction which resulted in his death. Neither the cause of Balaram's death comes into question. So Ex. 19 is not admissible under Section 32(1), Evidence Act, as a substantive piece of evidence. Ex. 19 is therefore inadmissible in evidence. The learned Sessions Judge completely missed this point and did not avert to it in his judgment and on the contrary has used Ext. 19 copiously for purposes of contradiction.
Mr. Das, however, places strong reliance on Section 8, Evidence Act, in support of the contention that it is admissible to prove the. subsequent conduct of Balaram. The section, so far as is relevant, lays down that the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. Explanation 1 is to the effect --
'The word 'conduct' in this section does not include statements, unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act.'
Reliance is placed on Illustrations (j) and (k) appended to the Section. Both the illustrations ara almost identical and it would be sufficient to quote only Illustration (j) to the effect--
'The question is, whether A was ravished. The facts that, shortly after the alleged rape she made a complaint relating to the crime, the circumstances under which, and the terms in which, the complaint was made, are relevant.'
The facts that, without making a complaint, she said that she had been ravished is not relevant as conduct under this section, though it may be relevant as a dying declaration under Section 32, Clause (1), or as corroborative evidence under Section 157. There can be no dispute over the proposition that subsequent conduct is admissible in evidence of the consistency of the conduct of the prosecutrix with the story narrated by her in the witness box. The controversy really centres round the question whether the statement would be admissible as an evidence of conduct when the person making the statement is dead. The Illustration clarifies the position that the conduct of the woman raped is such that if she lodges a complaint, then tie conduct is relevant and the terms in which the complaint is made are relevant as evidence of conduct, but those are not relevant as direct proof of the act. If the person making the statement is dead, then he is not in a position to make any statement in Court and there would bet no opportunity to test the consistency of the conduct evidenced by the complaint in relation to the one which could have been given in the witness box. In such circumstances there is nothing to confirm or corroborate the statement or the complaint and the statement cannot be proved. Section 8 would not render it admissible. This conclusion is reached not because of the non-applicability of Section 8 but because of the difficulty for testing the consistency when the maker of the statement is dead. Kappinaiah v. Emperor, AIR 1931 Mad 233 (2) fully clarifies the position and this is based on (1896) 2 Q. B. 167, Regina v. Lillyman. Reliance is placed by Mr. Das on a Single Bench decision reported in Umrao Singh v. State of Madhya Pradesh, AIR 1961 Madh Pra 45. This decision does not appear to have taken any contrary view. It says:
'It is hearsay and inadmissible when the object of the evidence is to establish what is contained in the statement; it is not hearsay and is admissible when it is proposed to establish by the evidence not the truth of the statement but the fact that it was made. In paragraph 8, however, his Lordship observed that the statement is admissible under Section 8, Evidence Act. This observation appears contrary to what was said in paragraph 5. At any rate, if the decision purports to lay down that the statement is admissible under Section 8 to test the conduct of the deceased maker, it is contrary to the aforesaid Division Bench of the Madras High Court which, according to me, lays down the correct law.'
F. I. R. (Ex. 19) is also inadmissible being hit by Section 162, Cri. P. C. From the evidence of P. Ws. 42 and 44, it is clear that P. W. 69 got positive information that the persons assembled in the house of accused 55 at Guansol had already killed two persons at Karanjmal and were out to assault others at Guansol. Whether this information was wholly true or not is immaterial. The fact remains that the Investigating Officer got positive information of the commission of cognizable offence. He should have, therefore, recorded the F. I. R, Admittedly the I. O. conducted the search and seizure in the house of the accused 55. This he did under Section 157, Cr. P. C. which lays down that if from information received an officer in charge of police station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he would proceed to investigate after resorting to certain formalities. Section 156 Cr. P. C. relates to investigation of cognizable cases. Receipt of information is not also a condition precedent for investigation. Section 157 prescribes the procedure in the matter of investigation which can be initiated either on the information or otherwise: State of U.P. v. Bhagwant Kishore, AIR 1964 SC 221. By the search and seizure in the house of accused 55, the investigation of the case has started and the F. I. R. (Ex. 19) has been recorded in the course of investigation and the statement cannot be used for any purpose at any enquiry or trial in respect of anyoffence under investigation at the time when such statement was made. Only Sections 32(1) and 27 of the Evidence Act are exceptions to the ban under Section 162 (1), Cr. P. C. Section 8, Evidence Act, does not come within exception.
In any view of the matter, therefore, Ex. 10 is inadmissible in evidence and the learned Sessions Judge exercised his jurisdiction with material irregularity in placing reliance on the inadmissibledocument (Ex. 19). In view of the aforesaid conclusion, it is unnecessary to further discuss whether P. Ws. 3, 4 and 5, who are eye-witnesses to the occurrence at Mahimamani land, did not tell anything about the occurrence to the I. O. when they met him at Mahuljhar. The learned Sessions Judge, however, is correct in his conclusion that it is extremely improbable that they would not disclose the occurrence to the I. O. at Mohuljhar, Guansol or Karanjmal during the period of about 8 hours they were in his company on 28-11-61, but would disclose the same on 29-11-61 when they were examined.
X X X X
12-14. It is the positive prosecution case that from the Mahimamani lands the injured persons, the deceased and some other men of Balaram's party were pursued upto the house of Balaram where some of them were tied down with ropes and were led to Haripur Adia where they were assaulted. A circumstance which had weighed with the learned Sessions Judge, is that why the accused should not assault the victims at Balaram's house but would lead them to Haripur Adia which is at a distance of half a mile. We are also at a loss to find an explanation. Further no reasonable explanation has been given by the prosecution as to why no injuries were indicated showing signs of ligature marks around the wrists of the hands where the injured were tied. The ropes also have not been recovered from the field. The learned Sessions Judge also makes comments that no trail of blood was found when Naka was carried from Purnananda Pardia's land to Mahimamani lands after the severe assault. P. W. 69 does not give any explanation. It is also intriguing to find that both Naka and P. W. 1 were lying on the very Mahimamani land on which the dispute started. On ultimate analysis the upshot of the whole game is that Naka and P. W. 1 were ultimately found lying on the very Mahimamani lands severely assaulted where the dispute initially started. Though the defence have not come forward with a positive story that P. W. 1 and Naka were assaulted on the Mahimamani lands leading to the injuries which were found on their body, there seems to be considerable truth in the argument that the entire assault and battle took place oa the Mahimamani lands and the place of occurrence has been shifted to intermediate places to complete the circle that there was no fight on the disputed land.
This is an appeal against an order of acquittal. The powers and jurisdiction of the High Court to go into questions of fact is plenary. The Court, however, is to keep in view that the presumption of innocence in favour of the accused has been reinforced by the factum of acquittal. Keeping the aforesaid approach in view, we cannot say that the learned Sessions Judge's view that that the entire episode was confined to Mahimamani land is an unreasonable one. This conclusion was drawn as the prosecution evidence was not accepted as unfurling the true story subsequent to the first assault started by Gani. The conclusion is justified by the materials on record as already discussed by us. Absence of positive stand on the part of the defence' would not exonerate the prosecution from proving its case. We are satisfied that the prosecution has failed to establish beyond reasonable doubt that the party of the accused pursued Balaram's men to his house and thereafter assaulted them at Karanja tree and Purnananda Parida's land. On the failure of this part of the prosecution story, the accused are entitled to an order of acquittal on all other charges which are integrally connected with this part of the prosecution version.
15. We have already held that accused Nos. 2 (Gani Parida), 12 (Baidhar Parida), 16 (Agani Bank), 23 (Durga Charan Behera), 36 (Hagar Behera), 37 (Bansidhar Naik), 39 (Banshidhar Barik), 46 (Muraliclhar Barik) and 50 (Daina Behera) are guilty under Section 148, Indian Penal Code. They are each sentenced to rigorous imprisonment for one year. Accused Nos. 2 to 16 are convicted under section 323 I. P. C. but no separate sentence is passed.
16. In the result, the appeal is allowed against accused-respondents Nos. 2, 12, 16, 23, 36, 37, 39, 46 and 50 as indicated in paragraph 15 of the judgment. The appeal is dismissed against them under other sections. They must surrender to their bail bonds forthwith. The appeal against other respondents is dismissed in toto.
Das, J.
17. I agree.