Judgment:
P.K. Patra, J.
1. The appellants have challenged the judgment dated 7.4.1998 in S.T. No. 21/1 of 1997/96 passed, by Shri N. Nayak, Addl. Sessions Judge, Rairangpur convicting appellant No.l Under Section 323 of the Indian Penal Code (for short 'IPC') and sentencing him to undergo rigorous imprisonment for one year and convicting appellant No. 2 Under Section 304 part (ii), IPC and sentencing him to undergo rigorous imprisonment for five years
2. Briefly stated, the prosecution case is as follows : On 15.8.1995 at about noon when deceased Kuber Chandra Das, aged about seventy- five years, took his cow from the cowshed and to tethered the same on the village lane in front of the house of the appellants at Baidaposi, Ward No. 2 of Rairangpur Town, within Rairangpur Town Police Station in the district of Mayurbhanj, both the appellants, who are brothers, protested the same and there was altercation between them. The informant (P.W. 1), son of the deceased, who was inside the house came out with his sister (P.W.6) hearing hulla raised by a neighbour (P.W.7) and found that both the appellants were assaulting the deceased who was lying on the ground and groaning by means of fist blows and kicks shouting at him to finish him since he was not paying any heed to their protest for tethering cattle in front of their house. When P.Ws. 1 and 6 tried to rescue the deceased, P.W. 1 was pushed away. When the deceased lost his consciousness, both the appellants fled away. Another neighbour (P.W.8) administered water to the deceased, but in vain. The deceased was then removed in a trekker to Rairangpur Hospital, but before reaching the hospital he breathed his last. P.W.I lodged written report (Ext.l) at the Rairangpur Town Police Station at about 12.45 p.m. that day and the S.I. of the said police station (P.W.9) treated the same as FIR, registered the case and took up investigation in the absence of the I.I.C. of the P.S. He examined witnesses, held inquest over the dead-body of the deceased, sent the same for post mortem examination, visited the spot, seized two bicycles and two pair of Chapals, arrested both the appellants and sent appellant No. 2 for medical examination since he sustained some injuries. On his transfer, P.W.9 handed over charge of investigation on 28.8.1995 to another S.I. of the said police station (P.W. 10) who completed the investigation and submitted chargesheet Under Section 302/34, IPC against both the appellants who stood their trial. The trial Court convicted appellant No.l Under Section 323, IPC and appellant No. 2 Under Section 304, Part-II, IPC while acquitting them of the charge Under Section 302/34, IPC.
The defence plea is one of denial. According to the appellants, the deceased was tethering cow in front of their house, thereby damaging the verandah of their house in spite of their protest and at the time of the alleged occurrence when they were protesting the deceased, the latter dealt two blows by means of a goad on the face and right leg of appellant No. 2 and when appellant No.l pulled out appellant No. 2, the deceased fell down and lost his consciousness.
3. Mr. Panda, learned counsel for the appellants, and Mr. Pradhan, learned Addl. Standing Counsel for the State, were heard at length. While Mr. Panda contended that the impugned judgment cannot be legally sustained, learned Addl. Standing Counsel supported the impugned judgment.
4. In order to bring home the charge against the appellants, prosecution has examined ten P.Ws. in this case,.of whom P.W.I is the informant, P.W.6 is his sister and P.Ws.7 and 8 are neighbours. P.W.2 is the medical officer who conducted post mortem examination over the dead body of the deceased. P.W.3 is a witness to the seizure of a piece of brick, two pairs of Chapals, one spectacle and two bicycles. P.W.4 is another medical officer who medically examined appellant No. 2. P.W.5 is another neighbour who is an eye-witness to the occurrence. P.Ws. 9 and 10 are the two investigation officers. The defence has examined none.
5. On an analysis of the evidence on record, the trial Court found that both the appellants assaulted the deceased by dealing fist blows and kicks and that appellant No. 2 dealt the fatal blow by means of a brick on the backside of the head of the deceased, but both the appellants had no intention to. do away with the life of the deceased. Accordingly he convicted appellant No. 1 Under Section 323, IPC and appellant No. 2 Under Section 304-311, IPC.
6. The medical officer (P.W.2) who conducted autopsy and submitted the post mortem report (Ext.3) found as follows :
' A male person aged about 75 years, eyes closed, mouth closed, stool passed on anul canal, rigormortis present on lower limbs only, one bruise and haematoma on the skull 2' in front of occipital protuerbunce.
Internal Injury : Right temporal bone was fractured and a piece was pressed on the brain coverings and there was an external haematoma, i.e. extradural haematoma of size 2 1/2' x 1' x 1'. Heart - All the chambers filled with blood. Stomach was empty. Liver lungs, kidney were normal. The injuries were ante mortem in nature and sufficient to cause death in ordinary course of nature.'
He submitted his opinion (Ext.4) to the query of the I.O. that the head injury was possible by the half-brick produced before him. P.W.2 has not opined whether death of the deceased was homicidal or accidental, but in his statement in cross-examination he has stated that the internal injury found on the deceased could have been possible by fall on hard and rough substances like brick. He could not identify the brick produced before him.
7. The medical officer (P.W.4) who examined appellant No. 2 on 16.8.1995 and submitted the injury report (Ext.7) found the following injuries :
'(i) Laceration half inch x half an inch on right side inner aspect of lower lip near right angle of mouth.
(ii) Swelling - 2' x 1' x lA' lateral aspect of left ankle joint below mallelous.'
He has stated in his cross-examination that injury No. l could have been possible by means of a small lathi.
8. The F.I.R. (Ext. 1) is silent about assault on the head of the deceased by appellant No. 2 by means of a brick, though it is stated that both the appellants were dealing kicks and fist blows. The informant (P.W.I) has stated that reaching the spot, he found both the appellants dealing. fist blows, slaps and kicks on the deceased who was lying on the ground and when he intervened he was also assaulted by the appellants. He has not stated about assault on the deceased by appellant No. 2 by means of a brick which proved to be fatal or about pushing of the deceased by appellant No.l. But P.W.6, sister of the informant, who followed the informant, has stated to have seen appellant No. 1 holding the deceased and appellant No. 2 assaulting the deceased with a brick. But in her statement in cross- examination she has stated that though two to three strokes were dealt on the back of the head of the deceased by means of a brick, there was no bleeding. In her statement before police she has not stated that appellant No.l caught hold of her father at the time of assault, but has stated that when her father received brick blow, he fell down, as stated by the I.O. (P.W.9). P.W.7 has stated that appellant No. 1 caught hold of the deceased and appellant No. 2 assaulted the deceased with a brick on his back. Further she has stated that she picked up the brick from the spot with which the deceased was assaulted and produced the same before the I.O. for seizure. But in her statement in cross-examination she has stated that she was living in the house of the deceased as a tenant long since and that the appellants were protesting the deceased regarding tethering cow in front of their house and that when she raised hulla the deceased had fallen down on the ground. But in her statement before police she had not stated that appellant No.l also assaulted the deceased and had caught hold of the deceased when appellant No. 2 was assaulting and she stated before the I.O. that going to the house of the deceased she raised hulla as stated by the I.O. (P.W.9). P.W.8 has stated that hearing hulla she came out of her house and administered water to the deceased who was lying in open field near the house of the appellants and P.Ws.l, 6 and some others were present there. She has not stated about assault by the appellants on the deceased. The I.O. (P.W.9) has stated to have seized a piece of brick on productions by P.W.7 from the spot under the seizure-list (Ext.5). The size of the brick piece is given as 5' x 4' x 2Vi'. But P.W.9 has also not identified the piece of brick which is alleged to be the weapon of offence in this case. The other I.O. (P.W. 10) who produced the seized piece of brick before the medical officer (P.W.2) with a query as to whether the injury on the head of the deceased could have been possible by the said piece of brick has also not identified the said piece of brick. It is evident from the statement of the medical officer (P.W.2) that one piece of brick was shown to him in Court, but he denied to have identified the same. But the said piece of brick was not produced before P.Ws. 9 and 10 for identification.
9. As stated earlier, the medical officer (P.W.2) has stated that the fatal injury No.l on the head of the deceased would have been possible by fall on a brick. While there was altercation between the deceased on one side and both the appellants on the other, standing face to face, appellant No. 2 could not have assaulted the deceased on the backside of his head by means of piece of brick and the possibility of the deceased falling down on the ground backward being pushed away by one of the appellants cannot be ruled out. Had appellant No. 2 assaulted the deceased by means of a piece of brick on the backside of his head and had that been seen by the eye-witness to the occurrence, the same would have been mentioned in the FIR (Ext. 1) and could not have been omitted.
10. In the case of Ram Kumar Panda v. State of M.P., reported in AIR 1975 SC 1206, the Apex Court held that no doubt an FIR is a previous statement, which can strictly speaking, be only used to corroborate or contradict the maker of it, but the omissions of important facts affecting the probabilities of the case are relevant Under Section 11 of the Evidence Act in judging veracity of the prosecution case. F.W.7 who was a tenant of the deceased can be said to be an interested witness. Had she seen appellant No.l holding the deceased and appellant No. 2 assaulting the deceased on the backside of his head by means of a piece of brick, she could have disclosed the same to the informant immediately after his arrival, but she has not stated to have disclosed the same to P.W.I and P.W.I himself is also silent on this score. The statement of P.W.6 (daughter of the deceased) who followed P.W. 1 on this score cannot be relied upon. Thus the statements of P.Ws. 6 and 7 being tainted with interestedness cannot be held to be credible and reliance cannot be placed on them and the same are to be discarded from consideration. That apart, the seizure-list (Ext.5) does not reveal that the piece of brick was stained with blood and no blood-stained earth has been seized from the spot and the seized brick has not been sent for serological examination. The defence plea that the deceased assaulted appellant No. 2 by means of a goad when he was being protested by the appellants is more probable in view of the medical evidence on record as per the injury report (Ext.-7).
11. For the reasons discussed above, it cannot be held that prosecution has been able to establish by cogent, convincing, consistent and unimpeachable evidence that the deceased was assaulted by the appellants and that death of the deceased was due to the injury inflicted by appellant No. 2 on the backside of his head by means of a piece of brick. As such, the conviction of appellant No. 1 Under Section 323, IPC and that of appellant No. 2 Under Section 304, Part-II, IPC cannot be sustained and, they will be entitled to an acquittal and the impugned judgment is liable to be set aside.
12. In the result, the Criminal Appeal is allowed and the judgment dated 7.4.1998 in S.T.No. 21/1 of 1997/96 passed by the learned Additional Sessions Judge, Rairangpur is set aside and the conviction of appellant No.l Under Section 323, IPC and that of appellant No. 2 Under Section 304 Part II, IPC and the sentences passed thereunder are set aside. They are acquitted of the charge. The bail-bonds of the appellants who are on bail be discharged.