Judgment:
P.K. Patra, J.
1. The appellants have challenged the judgment dated 3-9-1991 passed by Shri S. K. Patel, Sessions Judge, Balangir in Sessions Case No 84 of 1990 convicting them under section 307/34 of the Indian Penal Code (for shott 'I.P.C.') and sentencing appellant Mangan Bhoi to undergo rigorous imprisonment for ten years and to pay a fine of Rs.2,000.00, in default to undergo rigorous imprisonment for one year more; appellant Daman Bhoi to undergo rigorous imprisonment for five years and to pay a fine of Rs.1,000.00, in default to undergo rigorous imprisonment for six months more and sentenc- ing appellants Kiaban Bhoi and Asadhu Manhira to undergo rigorous imprisonment for two years and to pay a fine of Rs. 500.00 each, in default to undergo rigorous imprisonment for further three months. Since appellant Mangan Bhoi expired on 1-3-1992 as per the report of the Sessions Judge, Balangir, his name has been deleted from the Memo of Appeal vide order No. 6 dated 6-4-1998 of this Court.
2. Prosecution case, briefly stated, runs as follows : The informant (p.w. 1) who belongs to Scheduled Caste community had been given a piece of land measuring Ac. 1.78 decimals bearing Holding No. 66/22 appertaining to plot No. 447 under Welfare Scheme in Mouza Palabandha under Tarabha police station in the undivided district of Balangir. In the morning of 19-6-1990 while the informant was ploughing his land, the appellants whose land adjoins the land of the informant went there and prohibited him from ploughing the land and assaulted him by means of axe and lathis, as a result of which the informant fell down and became unconscious. The minor son of the informant (p. w. 2) who was present at the spot rushed to his bouse and informed his mother (p. w. 3) about the assault on p. w. 1. P. w. 3 rushed to the spot and removed unconscious p. w. 1 to the house and administered water on him. After some time p. w. 1 regained consciousness and went to Tarabha police station and lodged the F. I. R. (Ext. 7) at 11 a.m. before the O. I. C. of the police station (p. w. 11) who registered the case and lookup investigation. During investigation p. w. 11 examined witnesses, sent the informant for medical examination to Tarabha P. H. C., searched tbe bouses of the accused persons and seized the axe (M. O. I) from the house of deceased appellant Magan Bboi, one bamboo lathi from tbe house of Chandrasekhar Bboi who was named as an accused in the F. I. R., one bamboo lathi from the house of appellant Kiaban, one wooden lathi from the house of appellant Daroan and one wooden latbi from the house of appellant Asadhu Manhira. He also seized one plough on production by one Linga Nag and and left the same in the Zima of one Basudev Nag. He arrested the accused persons on 21-6-1990 and forwarded them to court in custody. He also seized bloodstained cloth of the informant and requisitioned the services of the Revenue Inspector, Kamsara for demarcation of the disputed land. He sent the seized axe (M. O. I) to tbe medical officer for his examination and opinion. After completion of investigation he submitted chargesheet against the - four appellants who stood their trial. The I. O, did not send up Chandrasekhar Bboi and Chandramani Bhoi who had been named as accused persons in the F.I.R. for trial.
The defence took the plea of denial and right of private defence.
3. In order to bring home the charge against the appellants (hereinafter referred to as the 'accused persons'), prosecution examined eleven witnesses of whom p.w. 1 is the informant, p.w. 2 is the minor son of p. w. 1 and p.w. 3 is the wife of the informant. P. ws. 4, 8 and 9 are witnesses to seizure. P. ws. 5 and 6 who bad been examined as eye-witnesses to the occurrence did not support the prosecution case and turned hostile. P. w. 7 is the medical officer who medically examined the injured informant. P. w. 10 is the Revenue Inspector who demarcated the land in dispute and p. w. 11 is the investigating officer.
The defence has examined one witness as d. w. 1 who is the father of appellant Nos. 1 to 3 and uncle of appellant No. 4.
4. Mr. N. C. Pati, learned counsel appearing for the appellants, and the learned Addl. Standing Counsel for the State were heard at length. While Mr. Pati contended that the impugned judgment of conviction is unsustainable in law due to improper and incorrect appreciation of evidence on record, learned Addl. Standing Counsel supported the impugned judgment.
5. Learned Sessions Judge placing reliance on the statements of the informant (p. w. 1) his son (p. w. 2) and his wife (p. w, 3) found the accused persons guilty and convicted them with separate sentences to each of them as stated above,
6. According to the informant (p. w. 1) he was a resident of village Sindhol and had migrated to village Palabandha twenty years prior to the occurrence. He being a member of Scheduled Caste, the land in question had been given to him by Government under Welfare Scheme, In his statement in cross-examination he has stated that the accused persons have their lands adjoining the disputed land and that a proceeding under section 145, Cr. P. C. had heen pending among the parties. The investigating officer (p. w. 11) has stated that the father of accused Chandrasekhar had lodged an F, I. R. against the informant on 11-8-1990 and P. S. Case No. 52 of 1990 had been registered in which chargesheet had been submitted against the informant. He has also stated that the F. I. R. in this case (Ext. 7) was lodged by the informant against six persons, but after completion of investigation chargesheet was submitted against four of them while two others, namely, Chandrasekhar Bhoi and Chandramani Bhoi, had not been sent up for trial. In the above background, the statements of the informant, his wife and his son require careful scrutiny before placing reliance on them for sustaining the conviction of the accused persons.
7. In the F. I. R. (Ext. 7) it is stated that while the informant (p. w. 1) was ploughing the land in question after sowing paddy in presence of his son (p, w. 2) the appellants along with Chandrasekhar Bhoi and Chandramani Bhoi rushed thpre and deceased appellant Mangan Bhoi was armed with an axe while the other appellants, namely, Daman Bhoi, Kiaban Bhoi and Asadhu Manhita were amed with sticks. They abused him and asked him as to why he was ploughing the land. It is alleged that deceased appellant Mangan Bhoi cut the rope tying the yoke with the plough and assaulted the informant by means of axe while accused Daman caught hold of the informant and others including Chandrasekhar Bhoi assaulted him by means of sticks. It is further alleged that accused Daman took the axe from deceased appellant Mangan and dealt blows on the head and hand of the informant and when p, w. 2 requested the accused persons not to assault the informant, accused Daman dealt a blow on p w. 2 by the backside of the axe and at that time Cbandrasekhar was instigating other accused persons to do away with the life of the informant. The informant fell down and lost his consciousness and was carried to his house by the nearby tenants. After regaining consciousness the informant went to Tarabha police station and orally reported the occurrence to the investigating officer (p. w. 11) who reduced the same to writing. But in his statement in court the informant (p. w. 1) has named only the four accused persons chargesheeted in the case and has excluded the presence of the other two persons named in the F. I. R. but not bent up for tria). Hence his statement in court is not consistent with the F. I. R. (Ext. 7) in this regard. According to him he sustained six injuries on his head inflicted by deceased accused Mangan who dealt blows on him with force holding the axe with both his hands and standing in front of him, besides three other injuries on other parts of his body. His statement is not consistent with the medical evidence on record; inasmuch as according to the medical officer (p. w. 7), had the blows been dealt by means of axe with force, the injuries would have been grievous in nature and not simple in nature as found in this case. P. w. 7 has stated that on 19-6-1990 he examined p. w. 1 on police requisition and found the following injuries :--
'(i) Lacerated injury 2' X 1/4 X 1/2' on the forehead on the left side, left to the midline at the hair-line.
(ii) Lacerated injury 2' X 1/4 X 1/2' on the left side of the scalp 3' above the left ear.
(iii) Lacerated injury 3'x 1/2 X 1/2' on the scalp on the occipital area.
(iv) Lacerated injury 21/4' X 1/2' X 1/2' on the right side of the scalp 4' above the right ear.
(v) Lacerated injury 2' x 1/2' x 1/2', one inch right to injury No. (iii).
(vi) Lacerated injury 1' X 1/2' x 1/2' on the scalp 1/4' posterior to injury No. (iii).
(vii) Lacerated injury 1/4' X 1/2' X 1/2' on the dorsal aspect of the right palm near the base of the index finger, and
(viii) Lacerated injury 1/4' x 1/2' X 1/2' on the outer aspect of the left thigh in the middle part.'
In his opinion all the injuries were simple in nature and might have been caused by blunt object. Ext. 2 is the injury report. He further opined as per Ext. 3 after examining the axe sent by the investigating officer that the injuries found on p. w. 1 might have been caused by axe, but p. w. 7 could not identify the axe seized in this case. In bis statement in cross-examination p.w. 7 has stated that the injuries on p. w, 1 were also possible by sharp side of a weapon. It appears that p. w. 7 is not definite as to whether the injuries found on tbe head of p. w. 1 were inflicted by means of sharp side or blunt side of an axe.
8. P. w. 2 who is a child witness has stated that he had been to the field with his father (p. w, 1) for sowing paddy at the time of sunrise and that all the accused persons reached there and when accused Daman cut the rope of the plough, p. w. 1 protested and accused Asadhu cut hold of p. w. 1 from his backside while deceased appellant Mangan dealt blows by means of an axe on the head of p. w. 1. He also added that accused Daman, and Kiaban assaulted p. w. 1 by means of lathis while Chandra-sekhar and Chandramani were instigating the accused persons. Further he has stated that he requested the accused persons not to assault his father, but they did not listen. Hence he rushed to his house to inform his mother about the occurrence and returned to the place of occurrence with her. He is silent about assault on him by means of axe with its back side by accused Daman as alleged in the F.I.R. (Ext. 7). He was also sent for medical examination on police requisition, but as per the injury report (Ext. A), no injury was found on him.
9. P. w. 3 has contradicted the statement of p. w. 2 by stating that p. w. 2 did not accompany her to the spot, but her father Bhikari accompanied her. Thus the statement of p. w. 2 is not consistent with the statements of his father (p. w. 1) and his mother (p. w. 3), the F.I.R. (Ext. 7) and also the medical evidence on record. Hence the presence of p. w. 2 at the spot at the time of the alleged occurrence is very much doubtful and his statement being tainted with interestedness, is not worthy of credence and reliance cannot be placed on him. The finding of the learned Sessions Judge that the statement of p. w. 2 was unimpeachable and not liable to be brushed aside being a tutored one is found to be erroneous.
10. Though p. w. 3 has stated to have seen six accused persons fleeing away from the spot after her arrival, the same is not worthy of credence and reliance cannot be placed on her. P. ws. 4 and 5 who are stated to have carried the injured p.w.1 to his house from the place of occurrence have not corroborated the prosecution case and p. w. 6 who is a neighbouring tenant has also not supported the prosecution case. The Revenue Inspector who demarcated the land in question and submitted his report (Ext. 6) has stated that the adjacent plot No. 84 is recorded in the name of Chandrasekhar Bhoi and the place of occurrence identified to him by a police constable was the middle portion of that plot.
11. Thus it is found that the statement of the informant (p. w. 1) is not consistent with the F. I. R. (Ext. 7) and the medical evidence on record. There is no eye-witness to the occurrence except p. w. 2, a child witness and son of p. w. 1 whose statement is found to be incredible, and there was litigation between the parties regarding the land in dispute.
12. In the case of State of Punjab v. Sucha Singh, reported in 1973 Cri. L. R. (S. C.) 303 it was held that interference was not called for in the acquittal of the accused when there were infirmities in the prosecution case and the witnesses examined by the prosecution were interested and their evidence was such upon which implicit reliance could not be placed.
In the case of Salveraj v. State of Tamil Nadu, reported in A. I. R: 1976 S. C. 1970, it was held that when the evidence led on behalf of the prosecution was wholly unsatisfactory and it could not be regarded as sufficient to find the conviction of the appellant for the murder of the deceased, the appellant was entitled to an acquittal.
In the case of Ram Ashrit Ram v. State of Bihar, reported in 1983 Crimes (Vol. I) 131, it was held that when the prosecution witnesses are either inter-related or otherwise interested in the prosecution, before their testimony could be safely acted upon, it had co pass the test of close and severe scrutiny and that it is extremely hazardous to convict the accused persons on the basis of the testimony of the highly interested, inimical and partisan witnesses, particularly when it bristles with improbable version and material infirmities.
13. In view of the discussions made above and keeping in view the principles enunciated in the aforesaid decisions it will be extremely hazardous to sustain the conviction of the accused persons on the basis of testimony of p, w. 1. Learned Sessions Judge failed to appreciate the evidence on record in its correct perspective and came to the erroneous conclusion that prosecution has been able to establish the case against the accused persons beyond reasonable doubts, which cannot be legally sustained and is liable to be set aside. IE is the bounden duty of the prosecution to establish the charge against the accused persons beyond all reasonable doubts by leading cogent, convincing, consistent, credible and unimpeachable evidence. In the present case, prosecution has failed to do so. The accused persons cannot be held guilty and convicted of the charge and will be entitled to an acquittal. Accordingly the impugned judgment is found to be unsustainable in law and is liable to be set aside.
14. In the result the Criminal Appeal is allowed. The impugned judgment dated 3-9-1991 convicting the accused persons under section 307/34, I. P. C. and sentencing them to undergo imprisonment of different terms and imposing fines of different amounts is set aside. The accused persons are found not guilty of the charge under section 307/34, I. P. C. and are acquitted. The bail-bonds of the accused persons who are on bail be discharged and the accused who is in jail custody be set at liberty forthwith if his detention is not required in any other case.
15. Appeal allowed.