A. Pasayat, J.
1. These two appeals are interlinked in the sense that they relate to the same alleged occurrence on 11-5-1984. Since the accused Bipra Naik, appellant in Criminal Appeal No. 144 of 1988, was shown as absconder the trial was split up so far as he is concerned and other eleven appellants in Criminal Appeal No. 119 of 1986 were tried together. Cognizance was taken for commission of offence punishable under Section 302 of the Penal Code, 1860 (in short, 'IPC) against; accused Markanda Naik, Kirtan Naik, Kamaraju Naik, Uma Chandra Naik, Prakash Naik, Gada Naik and Barichha Naik, for committing murder of one Banka Naik (hereinafter referred to as the 'deceased'). Cognizance under Sections 148/302/149, IPC and Section 324/149, IPC was taken against all the accused persons. Cognizance of offence under Section 323/149, IPC was taken against accused Lokanath Naik, Mochia Naik Landa Naik, Gada Naik and Udaya Naik and cognizance of offence punishable under Section 324, IPC was taken against Banchha Naik for causing grievous hurt on the person of Kabiraj Naik. So far as Bipra is concerned, he stood charged for the offences punishable under Sections 148, 302/149 and 323, IPC.
2. Filtering out the unnecessary details, the prosecution case as unfolded during trial of the two cases is as follows:
On 8-5-1984 accused Markanda Naik celebrated the marriage ceremony of his daughter Dhani Naikani and invited the co-villagers to the marriage feast. Since his relationship with the members of Kabiraj Naik (P.W. 1)'s family was not cordial, his family members including the deceased did not attend the marriage feast. This was taken to be an insult by accused Markanda and he bore grudge against the family of the informant. On 11-5-1984 in the morning hours the deceased along with one Bhalu Naik (D.W. 1) and Babu Naik (P.W. 9) had gone to witness as open sky opera. They returned to village at about 4 p.m. When they reached near the abandoned house of one late Rakhi Naikani, suddenly the accused persons who were lying in wait and had concealed inside the house of Rekhi Naikani came out being armed with various weapons, Markanda was holding a Khanati, Prakash was holding a Chelo, Uma Naik was holding an axe, Kirtan was holding a Khanati and rest of the accused persons were holding lathi each. They surrounded the deceased and accused Kirtan, Narkanda, Uma, Prakash and Banchha dealt blows on the person of the deceased by means of their respective weapons. On seeing the assault, Bhalu Naik and Basu Naik, the two companions of the deceased ran away from that place to save themselves. On seeing the assault on the deceased, Kabiraj (P.W. 1), the informant and his brother Daka Naik (P.W. 5) rushed to the spot. The occurence was also witnessed by Bhobani Naik (P.W. 6), Mantri Naik (P.W. 7) and Debaraj Naik (P.W. 8) who were sitting in nearby houses. When the informant (P.W. 1) and his brother (P.W. 5) ran towards the spot and wanted to save their father they were also assaulted by accused Loka Naik, Mochia Naik, Bipra Naik, Kamaraju Naik, Gada Naik, Udaya Naik and Landa Naik, who dealt lathi blows. Accused Banchha Naik also dealt a blow by means of a sword on the person of P.W. 5. The deceased and his sons (P.W.s. 1 and 5) were lying injured at the spot when accused Gada and Kamaraju again gave some blows by lathis on the person of the deased. By that time the other witnesses, namely, P.Ws. 6, 7 and 8 had arrived at the spot, P.W. 9 also came back. Seeing many persons assembled at the spot, the accused persons ran away with their respective weapons of offence. In the meantime the deceased had already breathed his last on account of the injuries sustained. His dead body and the injured persons were carried in a bullock cart to Pattapur Police Station where the information was lodged. Investigation was undertaken by P.Ws. 3 and 10, on completion whereof charge sheet was submitted. The accused persons faced trial. As indicated above, the trial of Bipra Naik Was split up as he was shown as an absconded.
3. The defence plea of the accused persons except accused Benchha Naik and Prakash Naik, was a complete denial to the allegations of assault and murder, as levelled against them by the prosecution. Accused Bipra Naik took a plea of alibi and stated that he was serving in the district of Kaonjhar and was absent from village on the relevant date. The defence version was that the family members of the deceased were not invited to the marriage ceremony and the marriage feast which was held in the house of Markanda, for which the deceased and his two sons were annoyed. On the date of occurrence between 1 to 2 p.m. the deceased and the injured being armed with weapons came to the house of accused Markanda to confront the matter and to protest as to why they were not invited to the marriage feast and the ceremony. At that time accused Prakash and Banchha Naik were sitting on the varandah of their respective houses. The deceased and his sons picked up a quarrel and the deceased dealt a khanda kati blow to accused Prakash and his sons also dealt blows by lathis. On seeing this, accused Banchha came running to the spot and tried to intervene for which he was also assaulted and there was a scuffle in between the two groups; in one hand were the deceased and his two sons, and on the other accused Prakash and Banchha. In the scuffle, both the accused and the deceased and his two' sons sustained injuries, but the injuries were not intentionally inflicted by the abovenamed two accused.
4. While eleven witnesses were examined to further the prosecution case, the aforesaid Bhalu Naik was examined as D.W. 1 to substantiate the defence plea. During investigation, certain wearing apparels and weapons were seized and they were marked as material objects. Documentary evidence was tendered by the defence to show that the so-called eye witnesses were related to the deceased. Accordingly it was pleaded that they had hostility towards the accused persons which was reflected in their exaggerated version in Court. The learned trial Judge found, the evidence to be credible and cogent and held the accused persons guilt under Sections 148/302/149, IPC and 324/149, IPC and convicted them.
5. So far as the offence punishable under Section 302/149, IPC is concerned, sentence of imprisonment for life was awarded. Each one of the accused persons was sentenced to rigorous imprisonment for one year for the offence under Section 148, IPC. Each one of them was also sentenced to rigorous imprisonment for one year for the offence under Section 324, IPC. The sentences made for the offences under Sections 148/324/149, IPC were directed to run concurrently with the other punishment, i.e., imprisonment for life. So far as accused Bipra is concerned, he was found guilty for the offences punishable under Sections 302/149/148 and 323, IPC. He was sentenced to imprisonment for life for the offence under Section 302/149, IPC, one year's rigorous imprisonment for the offence under Section 148, IPC and two months rigorous imprisonment for the offence under Section 323, IPC. The sentences were directed! to run concurrently.
6. In support of the appeals Mr. S.B. Ratho, learned counsel for the accused-appellants has urged that the genesis of the dispute has been suppressed as is evident from the fact that the place of occurrence has been shifted. Reference is made to the sketch map in this context. The evidence of the witnesses clearly shows that the place where the alleged occurrence took place could not have been seen by the so-called eye witnesses, even if it is accepted that the occurrence took place in the manner described by them. The motive for the offence is so insignificant, that the same cannot be the foundation for the gruesome/ murder as alleged. Large number of people are stated to have laid in wait for the deceased. It is not known as to how they could know, that the deceased had gone to witness the open sky opera and would be returning at a particular time. The parrot like statements of the witnesses about the names of the assailants clearly shows that they were tutored and had not witnessed the occurrence as claimed by them. Though the consistent evidence is that Banchha dealt a blow on the neck of deceased Banka no injury was noticed by the doctor (P.W. 4) conducting the post mortem examination. The injuries on Banchha and Prakash have not been explained though from the evidence of the doctor it is clear that they had sustained injuries. There is no mention about the assaults on P. Ws. 1 and 5 specifically in the FIR and the statements in the FIR are at variance with the statements of P.Ws. 1 and 5 about assaults as deposed in Court. The evidence of P.Ws. 6, 7, 8 and 9 lacks credibility because they have deposed falsely even on some trivial matters like relationship of the deceased with them. Some of them have given explanation to the suppression of truth by stating that they did not know the names of their father and other ancestors. The fact that Shalu (D.W. 1) was not examined by the prosecution shows that the prosecution version is not true, and the version of accused Banchha and Prakash is credible and it gets corroboration from the evidence of D. W, 1. Alternatively it is submitted that the ingredients of Section 149, IPC have not been established and therefore, the appellants are entitled to an order of acquittal.
The learned counsel for State on the other hand submitted that there is no change in the place of occurrence. On the other hand, the sketch map which is not drawn according to the scale cannot be used as a piece of evidence. On the contrary the evidence of witnesses is clear and cogent about the place of occurrence and fixation of any hypothetical place of occurrence is unwarranted. The evidence of the witnesses clearly shows the role played by the accused persons and motive is not always relevant factor unless the same is pressed into service by the prosecution to be the foundation. In any event when the prosecution case is cogent and credible absence of motive is of no consequence. The accused persons were lying in wait in an abandoned house of Rekhi Naikani, and merely because there was non-elaboration about the weapons and the manner of assault dealt in the FIR and/or statement before police, that cannot be a factor against the prosecution and there is nothing improbable in the statement of the witnesses. The medical evidence, which may be at variance with the evidence of ocular witnesses, cannot get precedence. Merely because there is some minor variance in the view expressed by the doctor, the same cannot be a ground to discard the credible evidence of the eye-witnesses. The evidence of D.W. 1 is highly improbable, and the prosecution chose 'not to examine him because material existed to show that he had been gained over. All the' accused persons had concealed themselves and were lying in wait, and some of them who were holding lathis restrained P.Ws. 1 and 5 when they wanted to go and save their father, the deceased from further assault. They rendered the rescue improbable and facilitated the assaults on the deceased, and therefore, Section 149, IPC has been rightly applied. The injuries on the accused persons do not play any determinative role unless the same are serious in nature, and are proved to have been sustained in the course of occurrence.
7. At this juncture it is relevant to take note that these is no dispute regarding homicidal death of the deceased. It is to be seen whether the death occurred in the manner described by the prosecution or as contended by the defence. The evidence of P.Ws. 1 and 5, have been attacked on the ground that they being the sons of the deceased and in view of the accepted animosity their evidence ought to have been discarded.
So far as the evidence of P.Ws. 1 and 5 are concerned, they claimed to have been injured during occurrence. According to these witnesses, the deceased had gone to witness an open sky opera, and while he was returning in the company of P.W.9 and D.W.I, the assaults took place in front of the backside of the house of Rekhi Naikani. The back side door of Rekhi Naikani faces towards the road. The occurrence took place in-front of the backside of the house of Rekhi Naikani. P.W. 1 has stated that he and his brother were standing on the road in front of the house. He found the accused persons coming towards them being armed with weapons. He has described in detail about the assaults made by Markanda, Kirtan, Banchha, Uma and Prakash. The first information report was lodged by him. Therein it was stated that the aforesaid five persons had assaulted the deceased, and when the assaults were being made Bhalu (D.W. 1) and Basu (P. W. 9) cried out for help. He and his elder brother P.W. 5 ran towards the spot. At that time Lokanath, Mochia, Bipra, Kamaraju, Gada, Udaya and Landa assaulted them and Banchha inflicted blow by a sword on P.W. 5. While P.Ws. 1 and 3 and the deceased were lying in injured condition, Gada and Kamaraju again assaulted the deceased by lathis. The evidence of P.W. 5 is substantially to similar effect. Ragarding the actual assaults by the accused persons. P.W. 1 has stated that Markanda caused a blow by means of a Khanati which hit on the face of the deceased, and Prakash caused a blow by means of a Chhela. Criticism is levelled that in the first information report, these elaborate assaults were not indicated, and there was omission to state about the injuries sustained by accused Banchha and Prakash. Non-specification of the assaults, in our considered opinion, cannot be considered material and fatal unless the omission is vital and relates to material aspects. Merely because other acts have not been categorically attributed, that is not sufficient to discard the prosecution evidence. The statements before the Investigating Officer are meant to be brief statements. Small omissions are not material; (See Matadin v. State of U.P.: AIR 1979 SC 1234: (1979 Cri LJ 1027)). The evidence of P.W. 1 has been corroborated evidence on relevant and material particulars by the evidence of P.Ws. 5 and 9. The evidence of P.Ws. 1, 5, 6, 7,8 and 9 are catagorical about the assaults by the accused Banchha, Markanda, Kirtan, Prakash and Uma. The doctor (P.W. 4) has noticed nineteen external injuries on the body of the deceased. Most of the injuries could be clearly linked with the assaults made by these five accused persons. Great emphasis has been laid by Mr. Ratho on the absence of an injury on the neck. Though some of the witnesses have stated that an injury was on the back, on consideration of the injuries we find that injury No. (8) can be said to be close to the neck. The same reads as follows:
'(8). Incised wound close to the left eye brow of 1' x 1/4' x muscle deep.'
The witnesses have witnessed the occurrence from a distance of 30 to 40 cubits. Merely because there is absence of an injury on the neck where the blow is claimed to have been given, that cannot be a factor to discard the evidence of the prosecution witnesses, particularly when injury is noticed nearby. When the evidence of the eye witnesses is found to be credible, and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive.
7-A. As Bantham said 'Witnesses are the eyes and ears of justice'. Hence the importance and the primacy of the quality of the trial process. Eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the prosecution version; consistency with the account of other witnesses held to be creditworthy; consistency with undisputed facts; the credit of the witnesses; their performance in the witness-box; their power of observation, and similar other relevant factors. The probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. Medical evidence is not invariable vis-a-vis the ocular evidence. (See State of U.P. v. Krishna Gopal, AIR 1988 SC 2154. It would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eye-witnesses' account which had to be tested independently and not treated as the variable keeping the medical evidence as the constant.
8. Emphasis has been laid on the untruth-fulness of witnesses particularly P.Ws. 6, 7, 8 and 9 about their relationship with the deceased and P.Ws. 1 and 5. With regard to falsehood stated or embellishments added by; the prosecution witnesses, it is well to remember that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version. It is also experienced that invariably the witnesses add embroidery to prosecution version, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth, the case should not be rejected. In Bankim Chander v. Matagini, AIR 1919 PC 157 it was observed that in Indian litigation it is not safe to assume that a case must be false if some of the evidence in support of it appears to be doubtful or is clearly untrue, since there is on some occasions, a tendency amongst litigants to back up a good case by false or exeggerated evidence. These aspects were also highlighted by one of us (Pasayat, J.) in Ashok Kumar Barik v. State of Orissa etc. (1991) 4 OCR 357 : 1992 Cri LJ 1849.
9. Though there may be substance in what Mr. Ratho says about the relationship of the deceased with eye-witnesses the question is whether their evidence so far as the assaults by the assailants are concerned is credible or not. Their presence at the spot, gets proved by the defence version itself. At this juncture it is relevant to highlight the defence version. Two of the accused persons namely, Prakash and Banchha have taken & positive stand that the deceased and his sons had gone to assault, but on Markanda's intervention there was a scuffle and some injuries were sustained. Therefore, we do not accept the contention of the learned counsel for the accused-appellants that the evidence of P.Ws. 6 to 9 has to be discarded in its entirety, because they have attempted to suppress their relationship with the deceased.
10. Coming to the injuries on the accused a great burden lies on the prosecution to explain the injuries noticed on the body of an accused where they are found to be serious in nature. Material is to be placed to show that the injuries were sustained in the course of the occurrence. However, minor, superficial injuries which can be the result of self-infliction cannot be a ground to discard the prosecution version. The Court has to be careful in weighing the evidence relating to injuries on accused along with other materials on record, while deciding the question of acceptability of the prosecution version. From the evidence of P.Ws. 1 and 5 it is apparent that injuries were sustained by Prakash and Banchha in the scuffle which ensued when attempt was made by P.Ws. 1 and 5 to save the deceased and accused persons including Prakash and Banchha restrained them. Therefore, it cannot be said that prosecution had failed to prove the injuries.
11. So far as possibility of identification is concerned, such emphasis has been laid on the spot map. Since the same was not drawn up to scale, and in view of the categorical evidence of P.Ws. 1, 5, 6,7 and 9 about the place from where they have seen the occurrence, the plea that identification was improbable is untenable. So far as the spot of occurrence is concerned, the witnesses have categorically stated about the same and P.W. 3 has seized human blood from infront of the house of Rekhi Naikani. Therefore, the hypothetical conclusion of the learned trial Judge about the place of occurrence does not appear to be correct. Though in certain cases where the prosecution suppresses the genesis of the dispute and the place of occurrence, it can be considered as fatal, the case at hand does not seem to be a case of that nature.
12. Coming to the question whether Section 149, IPC can be attracted, it is to be seen that Section 149 is in the nature of a collective liability for acts done by others, even though the accused may not have himself contributed physically. It fixes vicarious liability of the members of an unlawful assembly for the acts done in prosecution of the common object of the assembly. In fastening constructive liability, the importance of the common object should not be lost sight of. The words in prosecution of common object' must be strictly constructed and the offence committed must have a nexus with the common; object. The offence committed must be the manifestation of a common object. Only such of the members of the unlawful assembly who were members at the time of commission of the offence that are made constructively liable under Section 149. Carrying of weapon will bring a member near the common object, unless it is explained away. Persons present at the spot of occurrence may be made liable even if they did not take part in the beating which was their common object. But a mere spectator not taking part in the offence is not liable. The section is declaratory of the constructive liability of the members of an unlawful assembly for acts done in prosecution of its common object or for such offences which the members know likely to be committed in prosecution of that object. Therefore, not only the manifestation of a common object, but the knowledge for the same brings application of Section 149. There must be material to show that the act complained of was the common object or there was knowledge that it is likely to be committed. Members of an unlawful assembly may have a common object only up to a certain point and not beyond, or that the knowledge possessed by each member, of the offence, likely to be ommitted in prosecution of their common object may not be the same. Accordingly, the effect of Section 149 on the members, may be different on different members of the same unlawful assembly. The word 'likely' in the later part of Section 149 makes it clear that clear evidence about knowledge must be led. In order to bring application of Section 149, the following ingredients have to be satisfied.
(1) There was an unlawful assembly as contemplated by Section 141;
(ii)The accused was a member of such assembly;
(iii) He had intentionally joined or continued in that unlawful assembly;
(iv) He knew of the common object of the unlawful assembly;
(v) An offence was committed by a member of the assembly;
(vi) Such offence was committed in prosecution of the common object of the assembly; or
(vii) As the members of the assembly knew that such offence was likely to be committed in prosecution of their common object.
12-A. On an analysis of the evidence of P.Ws. 1, 5, 6, 7, 8 and 9, we cannot definitely come to a conclusion that the accused Lokanath, Mochia, Bipra, Kamaraju, Gada, Udaya and Landa had shared a common object or knew that death of Banka was intended. Though their presence at the spot is proved, yet link between presence and common object has not been established. Therefore, while upholding the conviction of accused Markanda, Kirtan, Uma, Prakash and Banchha, who gave assaults by deadly weapons on vital parts of the body, under Section 302/149, IPC, we set aside the conviction of other accused-appellants so far as their conviction under Section 302/149, IPC is concerned.
12-B. Coming to conviction for offences punishable under Section 148, IPC, we find that the aforesaid last named five accused persons themselves formed an unlawful assembly and were guilty of rioting. In view of the evidence, it is clear that they were armed with deadly weapons, their conviction under Section 148 is also maintained.
13. Coming in the assaults on P.Ws. 1 and 5, we find that P.W. 1 has stated that he was assaulted by lathis by Lokanath, Mochia, Bipra, Kamaraju, Udaya, Gada and Landa. In the first information report P.W. 1 has stated about the assaults by sword by accused Banchha on P.W. 5. P.W. 5 was also assaulted by Gada, Kamaraju by lathis. There is evidence of P.Ws. 1 and 5 that when they were rushing towards the spot of occurrence they were assaulted by the accused persons. Their names have been specifically stated. They have been rightly held guilty for the offence under Section 324/149, IPC. In the circumstances, their conviction under Section 148, IPC is also in order. The sentences of one year for each of the offences under Section 148 and 324/149, IPC do not appear to be unreasonable. They are to run concurrently.
14. In the ultimate result, the appeal so far as it relates to accused Markanda Naik, Kirtan Naik, Uma Naik, Prakash Naik. and Banchha Naik is dismissed. So far as the other accused-appellants in both the appeals are concerned, their conviction under Section 302/149 IPC is set aside; but their conviction under Sections 148 and 324/149, IPC sentences awarded are maintained.
The appeals are disposed of accordingly.
D.M. Patnaik, J.
15. I agree.