Judgment:
A.S. Naidu, J.
1. The facts and point of law in the appeal as well as in the revision being same and as in both the cases the judgment and the order of conviction passed by learned Sessions Judge, Ganjam-Gajapati, Berhampur in S. C. No. 82/1995 is assailed, the same were heard together and are disposed of by this common judgment.
2. Seven accused persons faced trial for alleged commission of offences under Sections 148/302/149 of I. P. C. on the allegation that they had committed rioting and murder of M. Damayanti in furtherance of their common object.
3. Shorn of unnecessary details, the prosecution case in short is as follows:
M. Ramudu (P. W. 1), the informant, and the seven accused persons belong to village Jayantipur in Jarada Police Station. M. Damayanti, the wife of the informant, and her two sisters namely, L. Dilliamma (P. W. 2) and G. Mahalaxmi (P. W. 4) on 28th May, 1994 went to take their bath in the village pond commonly known as 'Jabu Bandha'. M. Damayanti went inside the water whereas the other two sisters were cleaning their tooth standing on the ridge of the tank. At the relevant time, it was alleged, seven accused persons being armed with kati, thenga, knife, bhusa, etc. were sitting near the pond. Out of them accused Chikala Esha alias Vaswanadham came to M. Damayanti and asked her with regard to the whereabouts of her son in filthy language. M. Damayanti told him that on being frightened her son had left the village. On hearing the answer accused Esha lost his temper and assaulted on the left side of her neck by means of a bellum. Consequently she fell down in the water. Other accused persons also came rushing to M. Damayanti and indiscriminately assaulted her by means of different weapons. Seeing such occurrence out of fear the two sisters (P. Ws. 2 and 4) of M. Damayanti shouted for help. M. Ramudu (P. W. 1), the informant, and others hearing the shouts of P.Ws. 2 and 4 came to the spot and seeing them all the accused persons fled away from the spot leaving the deadbody of M. Damayanti in the pond. The informant thereafter went to Jarada Police Station and lodged a written report before the O. I. C. of the said P. S. which was treated as an F. I. R. and a Police Case was registered. The O. I. C. (P. W. 9) visited the spot, took up the investigation, held inquest over the deadbody, sent the same for post mortem examination, examined the witnesses, raided the house of accused persons and recovered one thenga from the house of accused Chikala Raghupati. He arrested six accused persons and forwarded them to the Court of J. M. F. C, Patrapur in G.R. Case No. 68/1994. In course of investigation Pravakar and other accused person's surrendered in Court and were sent to jail custody.
The O. I. C. (P. W. 9) after completion of the investigation submitted charge sheet against seven accused persons. Learned J. M. F. C. after going through the Police papers and on being satisfied that a prima facie case is made but, took cognizance of the offences and committed the case to the Court of learned Sessions Judge, Ganjam-Gajapati, Berhampur for trial.
4. The accused persons took a plea of complete denial. According to them a false case was initiated against them at the instance of some of their enemies.
5. The prosecution in order to bring home the charges got examined nine witnesses and exhibited as many as nine documents. Four material objects were also produced.
6. On behalf of the defence though no oral evidence was adduced, but them, copy of the summons issued in S. C. No. 131/87 were marked as Exts. A and B to prove past enmity.
7. Out of the witnesses examined, on behalf of the prosecution, P.W. 7 was the Medical Officer, who conducted autopsy. The post mortem report was exhibited as Ext. 3. In the post mortem P.W. 7 found the following injuries:
(i) Lacerated wound of size 1 cm. x 0.5 cm. x muscle deep present at the left side of upper lip on its inner aspect.
(ii) Punctured wound of size 0.5 cm. x 0.25 cm. x muscle deep present over medial aspect of lower part of the right thigh 2 cm. above upper border of patella. Dried blood stains present around the wound.
(iii) Punctured wound of size 0.5 cm. x 0.25 cm. x skin deep present over left upper eye lid.
(iv) Punctured wound of size 0.5 cm. x 0.25 cm. bone deep present over medial side of right upper eye lid.
(v) Contused abrasion of size 1.25 c.m. x 0.25 c.m. x resent over dorsal aspect of distal phalanx of right thumb.
(vi) Punctured wound of size 0.5 cm. x 0.25 c.m. x muscle deep preset over medial side of left side heel, just below medial malleolbus of ankle joint.
P. W. 7 opined that the injuries were ante-mortem in nature and were not sufficient in the ordinary course of nature to cause death. According to her the cause of death was due to asphyxia as a result of drowning.
8. P.W. 1 is the husband of the deceased and is the informant. P. Ws, 2 and 4 are her sisters and P.W. 5 is the brother. P.W. 8 happens, to be the son of the deceased and P.W. 3 is the elder brother of P.W. 1. Thus, it appears that not a single independent eye witness to the occurrence had been examined in the case. Learned Sessions Judge, therefore, carefully scrutinized the evidence before placing any reliance on the same.
9. After vivid discussion of the evidence, both oral and documentary, learned Sessions Judge observed that the prosecution had not disclosed the whole truth and the chances of embellishment of the prosecution case to falsely implicate the accused cannot be completely ruled out. After analyzing the evidence of the eye witnesses and others and as no weapon of offence could be recovered from the accused persons, the Sessions Judge arrived at a conclusion that the accused persons are entitled to benefit of doubt and the charges under Sections 148/302/149 of I.P.C. cannot be sustained.
10. The said judgment is assailed by the State of Orissa in G. A. No. 20/1997 mainly on the ground that the Sessions Judge committed an error in not arriving at a conclusion that the accused persons had a common object to kill M. Damayanti as she did not know the whereabouts of her son who was inimical to them. According to learned Addl. Standing Counsel the finding that no common object was there, is not correct. Further, according to learned Addl. Standing Counsel, learned Sessions Judge overlooked the fact that the doctor (P. W. 7) opined that the death was ante-mortem because of drowning. He had also opined that the cause of drowning was due to severe puncture and lacerated injuries on the deceased. Thus, assault being the cause of drowning, the learned Sessions Judge should have held the accused persons guilty under Section 302 of I. P. C. The third ground of attack by learned Counsel for the State is that the learned Sessions Judge erred in disbelieving the prosecution story because no independent witness was examined, though P.W. 2 and 4, the eye witnesses, are very reliable and their evidence should have been accepted. It is further submitted that the learned Sessions Judge disbelieved the prosecution case due to non-seizure of weapons used, but then only because the weapons could not be seized, the accused persons are not entitled for an acquittal.
11. Criminal Revision No. 60/1996 has been filed by the informant, more or less on similar grounds. In course of hearing learned Counsel for the informant also assisted the State counsel.
12. Heard learned Counsel for the parties at length. Perused all the evidence. P.W. 1 is the husband of the deceased. He had lodged the F. I. R. Perusal of the evidence reveals that after the incident he went all the way to a Rice Mill and the F. I. R. was scribed there. The incident took place in the morning at about 9.00 a.m. The F. I. R. was filed in the mid afternoon. That apart, the story narrated in the F. I. R. and the facts deposed by P.W. 1 in court substantially differ on material points. Contradictions and omissions are apparent on the face of it. Though law is well settled that F. 1. R. is not an encyclopedia, but then if there are contradictions between the facts stated by the informant in his deposition in Court vis-a-vis the F. I. R. with regard to vital aspects, and as such contradictions touches the route of the case, it would be very difficult to accept the prosecution story.
Learned Sessions Judge after discussing the evidence of P.W. 1, in extenso had arrived at a conclusion that not only there was a time lag between the time of occurrence and lodging of F. I. R. but also there was sufficient time for embellishment of the report and to implicate the accused persons and as such, the same cannot be a basis for conviction.
13. In the case at hand as would be evident from the evidence of P.W. 7, the doctor who conducted the post mortem opined that the cause of death was drowning. According to the prosecution story, P.Ws. 2 and 4, the two sisters, were present near the pond. According to them on being assaulted M. Damayanti fell down in the pond, but then no steps were taken to rescue M. Damayanti from the water immediately, instead, the body was left in the pond till the Police arrived and was taken out by the Police that too after lapse of about 3 to 4 hours. That apart, the evidence of P.Ws. 2 and 4 reveals that they had come to the village to attend a marriage ceremony, which was scheduled to be held on the very next day of the occurrence. But then, such a statement cannot be believed in view of the evidence of P.W. 9 who states that the marriage was solemnized one month prior to the occurrence. It also appears from evidences that there was another pond in the vicinity and some persons were taking bath in the said pond at the relevant time. Unfortunately none of them have been examined. The prosecution remained satisfied in examining only the close relatives of the deceased. In the case of Babu and Ors. v. State of U.P. reported in : AIR 1980 SC 443 : 1980 Cri LJ 392 the Supreme Court held that the evidence of relatives should not be discarded only on the ground that they were interested and inimical. On the other hand, the evidence of such witnesses is very much pertinent inasmuch as they are apt to speak the truth and see that only the accused and none else is punished. At the same time, law is also well settled that the evidence of partisan witness can be believed only if it is found to be truthful and free from infirmity. Law requires that such evidence should always be viewed with great caution. In the case at hand, however, perusal of the evidence of P.Ws. 1, 2, 3, 4, 5 and 8 reveals not only material variation which is vital to the prosecution case, but also the same are tainted with interestedness. Reading of the evidence leads to a conclusion that several omissions and commissions have not been explained by the prosecution. Contradictions are very much apparent, thus it would not be very safe to rely upon the said evidence, more so because, though there were other independent witnesses available near the place of occurrence, they have not been examined. Apart from the aforesaid infirmity, this Court also finds certain laches are there on the part of the I. O. (P. W. 9). According to P.W. 9 he had arrested the accused persons on 7-6-1994 and by that date he had completed most of the investigation by examining all material witnesses. Unfortunately, however, it reveals that while forwarding the accused persons the I. O. had not forwarded the statement of witnesses and the seizure list to the Court, which gives an impression that the statement of witnesses were prepared at a later stage to suit the prosecution case. All the witnesses are Telugu speaking persons. The I. O. had no knowledge to the said language. The I. O. had taken help of a constable namely, S.S. Reddy, to interpret the statements of witnesses. Unfortunately the said constable was also not examined. This is a case where the weapons of offence have not been seized by the Police. That apart the injury sustained by the deceased are hot very serious. All these aspects have been well discussed by learned Sessions Judge., After going through the evidence this Court also finds that the prosecution has not come with clean hands. The case has developed from stage to stage. It has not disclosed the whole truth and there are chances of embellishment of the prosecution case. The evidence of the eye witnesses and the post occurrence witnesses who happen to be close relation of the deceased are full of contradictions, infirmities and inconsistencies and as such, it would be quite unsafe to place reliance on the said evidence and to convict the accused persons.
14. For the reasons discussed above, the irresistible conclusion is that the prosecution has not been able to establish by adducing cogent, convincing and credible evidence that the accused persons were the authors of the crime. That apart, the occurrence took place way back in the year 1994. Fifteen years have passed in the meanwhile. After lapse of so many years, this Court finds no reason to interfere with the order of acquittal.
Accordingly the Government Appeal as well as the Criminal Revision stand dismissed.
S.C. Parija, J.
15. I agree.