Judgment:
P.K. Misra, J.
1. The appellant has been convicted under Section 302, IPC, and sentenced to imprisonment for life by the Additional Sessions Judge, Jaipur, in S.T. No. 48/3 of 1991.
2. The appellant faced trial along with fourteen other accused persons who have been acquitted. The appellant was charged under Section 302, IPC, for having committed the murder of one Kasinath Naik. The acquitted accused persons Ananta Dalei, ArjunaDaloi, Basanta Jena, Sarat Jena, Suryamani Daloi, Bharat Daloi, Suria Daloi, Kapila Daloi and Sasadhar alias Ratha Palar stood charged under Sections 148, 307 and 302/149, IPC, for having committed the murder of Kasinath Naik and Madhusudan Naik and for having attempted to commit the murder of Bake Daloi. They were also charged under Section 324/24, IPC, for voluntarily causing hurt to Lambodar and Babuli. The present appellant along with acquitted accused Rama Bohoera, Nanda Dalei, Purna Dalei and Sasadhar alias Ratha Palar were also charged under Section 120B, IPC, for hatching conspiracy to commit the murder of Baka Dalei. Acquitted accused Purna Dalei, Ananta Dalei and Kapila Dalei were charged under Section 324/34, IPC, for voluntarily causing hurt to Lambodar Naik. The appellant along with acquitted accused Nanda Dalei stood charged under Section 324/34, IPC, for causing hurt to Babuli Bohoera. As already indicated, the appellant alone has been convicted under Section 302, IPC, and all other accused persons as well as the appellant have been acquitted of all other charges.
3. The prosecution case, briefly stated, is as follows: Baka Dalei (P.W. 2) used to worship 'Mangala' deity. On 28-8-1990, some other persons not belonging to Daloi family of the village tried to forcibly worship the deity and resistance was offered by Baka Daloi. Hearing shouts, the informant and others came near the temple and the persons who were creating trouble left the place. Subsequently, conspiracy was hatched and the accused persons including appellant Gura Daloi came armed with iron rods, lathis, bow and arrows et cetera. Accused Gura Dalei struck an arrow which hit the chest of Kasinath Naik. When Madhusudan Naik tried to come to the rescue of Kasinath, accused Kapila Daloi, Nanda Dalei, Purna Dalei and Ananta Dalei assaulted him with lathi and iron rods. The informant and others removed injured Kasinath Naik and Madhusudan Naik from the spot. The former succumbed to the injury while the latter was removed to Jaipur Road Hospital from where he was taken to the S.C.B. Medical College, Cuttack, where he died of the head injury. Information was lodged by Lambodar Naik (P.W. 1) and on completion of investigation, charge sheet was submitted.
4. The plea of the accused persons was mainly one of denial. However, some of the accused persons including the appellant raised the question of right of private defence of person. Their case as revealed from the suggestion to the witnesses was that the informant's group had attacked some of the accused persons at their residence and to scare them away accused Gura Daloi had shot an arrow. The assault on Madhusudan was denied in toto by the accused persons.
5. The prosecution examined 12 witnesses in support of its case of whom P.Ws. 1 to 5 are the eye-witnesses. P.W. 6 is the doctor who had examined some of the injured witnesses as well as four of the accused persons including the appellant who had been injured. P.Ws. 10 and 12 are the doctors who held post-mortem examination in respect of deceased Kasinath Naik and Madhusudan Naik respectively. P.W. ! 1 is the Investigating Officer. Other witnesses are formal witnesses.
6. The trial Court has not accepted the prosecution case regarding the alleged conspiracy and has also not accepted the prosecution evidence relating to assault on Madhusudan, who died subsequently, and other members of the prosecution party and as such has acquitted all the accused persons of all the charges. The trial Court has recorded its doubt regarding the place of occurrence and has observed that the prosecution witnesses had completely suppressed the injury on four of the accused persons. In spite of the aforesaid finding, the trial Court convicted the appellant under Section 302, IPC, for having committed the murder of Kasinath Naik by recording the following finding:- ,
On ultimate analysis of the facts and points of law involved in the case I come to an unerring conclusion that the prosecution has successfully proved its case beyond all reasonable doubts against the accused Gura alias Guri Daloi. It is not a case of the defence that he had aimlessly shot an arrow to a mob which accidentally hit deceased Kasinath. It is consistently the evidence of prosecution and defence that he shot an arrow which hit Kasinath Naik's chest. So lenient view cannot be taken against his liability....
7. The learned counsel appearing for the appellant has assailed the order of conviction on the ground that the judgment of the trial court is not sustainable in view of its findings discarding the prosecution case regarding the origin and genesis of the occurrence. It has been contended that in view of the finding that the prosecution witnesses had suppressed the injuries on the accused persons including the appellant and had been disbelieved in respect of the other allegations made against the accused persons, the trial-Court should have recorded a finding of acquittal. It is further contended that the plea of right of private defence should have been accepted keeping in view the evidence of D.W. I as well as other materials on record.
The learned Additional Government Advocate has supported the order of conviction and has submitted that the prosecution evidence is consistent regarding the role played by the present appellant.
8. Though there is no detailed discussion in the judgment of the trial Court regarding the various points posed by the Court itself in para 3 of its judgment, it is found from the judgment that the trial court apparently disbelieved the prosecution case regarding the place of occurrence, as would be evident from para 9 of the judgment. From the side of the defence, it has been categorically suggested to the eye-witnesses including the Investigating Officer (P.W. 11) that the place of occurrence was not the spot indicated by the prosecution witnesses,. It has been elicited .from P.W. 11 that before he visited the spot, S.I., Panikoili Police Outpost, had already visited the spot. P.W. 11 does not claim that he has found any blood-stained earth from near the alleged spot as per the description of the prosecution witnesses. On the other hand , it is the categorical evidence of D.W. 1 that the S.I, 'Panikoili Outpost, had seized blood-stained earth from near the house of the accused. Since admittedly, the S.I., Panikoili Outpost had visited the alleged place of occurrence, and in the face of the categorical suggestions to the prosecution witnesses regarding shifting of place of occurrence, it was the bounden duty of the prosecution to examine S.I., Panikoili Outpost. The trial Court itself has doubted the prosecution story regarding the actual place of occurrence. In such view of the matter, it cannot be said that the actual place of occurrence has been proved by the prosecution by adducing cogent evidence.
9. The trial Court itself has found that the injuries on the accused persons had not been explained and it seems to have drawn adverse inference against the prosecution for non-explanation of the injuries on the accused persons. The learned counsel for the appellant has placed strong reliance upon the decision reported in AIR 1976 SC 2263 : 1976 Cri LJ 1736 (Lakshmi Singh v. State of Bihar) and has submitted that in view of the fact that the prosecution had tried to suppress the injuries on the accused persons who had sustained injuries in course of the occurrence, as observed by the trial Court, the prosecution story regarding the genesis and origin of the occurrence should be disbelieved and the defence claim of right of private defence should be accepted. As a matter of fact, on the basis of the finding Regarding suppression of injuries on the accused persons, the trial Court has acquitted all other accused persons. Even the prosecution case regarding the so-called conspiracy and the manner in which the occurrence is alleged to have taken place has been discarded. It is true that the injury on the appellant himself was riot very severe, but the injuries on some of the other accused persons were quite serious, inasmuch as lacerated wounds have been found on vital part of the body, like head. The trial Court seems to have committed an error of record in relation to the culpability of the appellant by holding :---.It is not a case of the defence that he had aimlessly shot an arrow to a mob which accidentally hit deceased Kasinath....
The trial Court has overlooked the specific case of the appellant, as would be evident from suggestion to P.W. I as well as P.W. 3 who were the eye witnesses to the occurrence. It was specifically suggested to P.W. | that the appellant in order to save himself and to save Nanda Dalei and Purna Dalei had aimlessly shot an arrow. Similarly, it was specifically suggested to P.W. 3 that he along with Madhusudan,, Kasinath and others chased accused Gura Dalei, Nanda Dalei, Purna Dalei and assaulted them in front of their house and in self-defence, accused Gura Dalei retaliated. The aforesaid suggestions though denied by the witnesses, clearly spell out the specific defence of the appellant. The suggestion of the accused persons to the aforesaid effect appears to be correct, in view of the fact that accused Nanda Dalei, Purna Dalei, Purna Jena as well as the appellant himself had sustained injuries. That apart, through the mouth of D. W. 1, the accused persons have tried to prove this aspect. In view of the conduct of the prosecution witnesses in suppressing the injuries on accused persons and in the absence of any categorical prosecution evidence regarding the place of occurrence, the defence version as proved through the mouth of D.W. I cannot be discarded as improbable one. Having regard to the principles enunciated in the decision reported in AIR 1976 SC 2263 : (1976 Cri LJ 1736), it is a case where the suppression of injuries on the accused persons creates doubt regarding the veracity of prosecution case and probabilises the defence version regarding right of private defence.
10. Having regard to the aforesaid facts and circumstances, the appeal is allowed and the order of conviction and sentenced imposed against the appellant is set aside.
These are the reasons which had prompted us to pass the order of acquittal recorded in the order-sheet dated 27-6-1996.
D. M. Patnaik, J.
11. I agree.