Abhaya Jena vs The State

N.K. Das, J.—Petitioner has been convicted u/s 323, Indian Penal Code and sentenced to pay a fine of Rs. 400/ - and in default of payment thereof to undergo rigorous imprisonment for a period of one month.

Prosecution case is that in the morning of 29th April 1973 p.w. 4 was going home with some mangoes plucked from a mango tree standing in his bari at Pithapur in Cuttack Town. The Petitioner, who is a cousion of p.w. 4, along with three other persons (who have since been discharged) challenged him saying that the mango tree belonged to them. While p.w. 4 protested, the Petitioner dealt two lathi blows on his head. I Thereafter, p.w. 4 was removed to S.C.B. Medical College. Hospital. P.w. 3 who is brother of p.w. 4 lodged information at Lalbag police station.

The plea of the Petitioner is one of denial and it is alleged that he had been falsely implicated.

Prosecution relies on the evidence of p ws. 3, 4, 5 and 6 along with the medical certificate as well as the doctor''s evidence to establish the guilt of the Petitioner It is an admitted fact that p. ws. 3, 4 and 6 are brothers, there is long standing ill feeling and litigation between the Petitioner and p. ws. 3, 4, and 6 regarding their properties, as all t of them belong to one family. It is also admitted that both sides are claiming right over the mango tree in question. As it appear from the evidence on record, Petitioner claims joint ownership and possession over the three, while p. ws. 3, 4 and 6 contend that by an amicable partition the tree has fallen to their share.

P. ws. 3 and 6, as has been stated above, are not well disposed towards the Petitioner. So, their evidence is to be scrutinised carefully in order to find out whether they are truthful witnesses. P.w. 5 is a man of the locality who, admittedly sometimes works as a labourer under p.w. 4. It is stated that p. ws. 3, 5 and 6 are eye witnesses to the occurrence. In the charge-sheet the names of p. ws. 5 and 6 are not mentioned. P. ws. 1 and 2 are, admittedly, persons of the locality and their names appear in the charge sheet. When p. ws. 1 and 2 were examined by the prosecution, their evidence was against the prosecution story. They were declared hostile by the prosecution and were cross examined. Questions were put to them about their statement before the investigating officer. But the investigating officer was not asked anything about those questions. In view of this position their evidence cannot be brushed aside lightly. There is nothing in law as to declaring a witness hostile. It is open to the party to cross examine the witnesses cited by that party under the provisions of the Evidence Act. These two r witnesses were cross examined and nothing has been brought out in evidence so as to discredit the testimony of these witnesses. Prosecution only confronted them with some statements said to have been made before the police by these two witnesses, but no question has been put to the investigating officer about the statement of these two witnesses. It is contended on behalf of the prosecution that as the case diary was not available, the investigating officer was not in a position to say anything. When the case diary was not available, the Court had to rely on the statement of witnesses made in Court. Accordingly, the statement of these two witnesses is to be taken into consideration as made in Court. These two witnesses, as I have stated above, have not supported the prosecution story though their names appear in the charge-sheet.

P.w. 3 is the informant in the case. He has proved his signature in the petition submitted at the police station by him. Ext. 1/1 is the endorsement of the officer-in-charge of the police station on the said petition. The contents of the petition have not been proved. P.w. 3 says that he got the petition written by a Moharir, but he is not able to tell his name. Thus it would appear that the petition that was filed before the officer-in-charge has not been proved. Only from the statement of the investigating officer it appears that this petition which has been marked ''X'' for identification was filed before by p.w. 3 and he treated the same as F.I.R. Prosecution case is that p.w. 4, after plucking mangoes from the tree, was carrying the same while he was assaulted by the Petitioner. P.w. 3 is said to be an eye-witness to the occurrence and he is none else but the brother of p.w. 4. From the evidence of p.w. 3 it appears that p.w. 4 was not carrying mangoes and it was p.w. 3 who was carrying the mangoes. Prosecution story is that there was some altercation between p.w. 4 and the Petitioner; whereas from the evidence of p.w. 3 it appears that there was some quarrel between p.w. 3 and the Petitioner. P.w. 4 is the injured who says that he was going with the mangoes. This is all contrary to the version of his brother p.w. 3. P. ws. 5 and 6 say that p.w. 4 was carrying the mangoes and there was altercation between p.w. 4 and the Petitioner; whereas p.w. 3 says that he had altercation with the Petitioner but p.w. 4 was assaulted by the Petitioner only because he happens to be the karta of the family.

As regards actual assault, p.w. 4, the injured, states that the Petitioner first of all dealt lathi blows on the back side of his head. He then fell down and thereafter the Petitioner dealt another blow. According to p.w. 3 two blows were successively dealt by the Petitioner on the head of p.w. 4 whereafter he fell down. The evidence of p. ws. 5 and 6 is contrary to the statement of p.w. 3 in this respect. P.w. 5 states that p.w. 4 fell down on the road. P.w. 3 says that p.w. 4 fell down on the projecting root of a trees. According to p.w. 6, he fell down on a cot. The injury, according to the doctor, is on the parietal region. All the witnesses have stated that the assault was given from back side. P.w. 5 states that the blow was dealt at the middle portion on the back side of the head of p.w. 4. Prosecution story, as revealed from the testimony of witnesses, is that two blows were given with a lathi by the Petitioner. According to the doctor he found only one lacerated injury on the parietal region. Therefore, prosecution story as it appears about real assault does not tally with the injury found by the sloe for. So also the prosecution evidence is that assault was on the back portion of head, whereas the doctor has found the injury on the front portion of the head. It was argued on behalf of the Petitioner that the doctor has said that the injury, as found by him on p.w. 4 was possible by coming in contact with door frame. P.w. 4 has categorically stated that there was none at the spot before the first assault and none of his family members were present there. He says that he fell down on a wooden cover over the field. It is stated by the other witnesses that about 8 to 10 persons were present at the place of occurrence. Some of those persons have been named by the witnesses, but none of them has been examined by the prosecution nor any explanation has been given as to why they have not been examined. Prosecution evidence reveals that it was p.w. 5 who was present at the place of occurrence and he also accompanied p.w. 4 to the hospital. Curiously, his name does not appear in the charge sheet and he says that he was never examined by police. The name of p.w. 6 does not appear in the charge sheet but he has been examined as a prosecution witness. P.w. 6 has stated that the charge sheet witnesses were not present at the place of occurrence. This clearly gives a blow to the prosecution evidence.

There is another aspect of the matter. It is alleged that after p.w. 4 was assaulted p.w. 6 came to the spot and he was also assaulted and a bag containing money was taken away from him P.w. 3 does not state anything about this part of the story nor any of the witnesses supports such a contention. This would show that the prosecution story is being developed from stage to stage. From the evidence of p.w. 3 it appears that the lathi used by the Petitioner was produced from the shop of one Had Behera which is situated at a distance of two cubits from the place of occurrence. That Hari Behera has not been examined nor the lathi has been seized by police.

Prosecution case is that p.w. 4 was admitted into hospital on 29th. The occurrence is said to have taken place in heart of the town of Cuttack. But F.I.R. could not be lodged till 10 a.m. of the next day. After F.I.R. was lodged it appears that police did not seize any blood stained cloth of p.w. 4, though prosecution evidence is that there was profuse bleeding from the injury sustained by p.w. 4 on his head. It also appears that no requisition was sent by police to the hospital for getting details of the injuries found by the doctor. P.w. 4 says that he was examined by police at the hospital two to three days after the occurrence. There is no reason why police did not get the injury report and the details about the injury found by the doctor from the hospital. From the evidence of p.w. 9 it appears that on 28-7-1973 he made a report on police requisition. Thus, the police requisition was sent on 28-7-1973. From the evidence of the doctor, it appears that immediately after getting the requisition he examined p.w. 4. He has stated that about 3 to 4 months after the examination of the injury the report was issued. The sum total of the evidence for the prosecution as found from the testimony of the investigating officer, the medical report ex. 3 as well as the evidence of the doctor p.w. 9 is that the certificate was issued on 28-7-1973. This certificate was made out of the bed-head ticket of p.w. 4 The bed-head ticket is the original document which would show that injuries were present at that time. But the same has not been produced nor has been called for. It is found from the evidence of p.w. 5 that p.w. 4 sustained some scratches on his face, but the medical report does not show existence of any scratch. Therefore it is quite evident that p.w. 9 examined p.w. 4 on 28-7-1973 after getting the police requisition and gave the report and existence of injury in this report is quite contrary to what has been stated by the prosecution witnesses. This fact has been discussed in the earlier part of this judgment.

When p. ws. 3. 4 and 6 are witnesses not well disposed towards the Petitioner, their evidence is to be scrutinised care fully. As I have discussed above they are not reliable witnesses. From their testimony, it appears that several independent persons were present at the spot who were eye-witnesses. But none of them have been examined. The two independent witnesses p. ws. 1 and 2 who have been mentioned in the charge sheet are said to be eye-witnesses but they have not supported the prosecution case. The contents of the F.I.R. have not been proved and there is no explanation for the delay in lodging the F.I.R. The evidence of the prosecution witnesses examined in the case when looked against the background of suppression of material witnesses and absence of explanation for delay in lodging the F.I.R. appears to be serious. The prosecution, thus has failed to establish the charge against the Petitioner. The learned appellate Court has enumerated the position of law and his followed the principles of separating grain from the chaff while assessing evidence. But as I have pointed out above in a case of the present nature, the salient features for consideration in separating grain from the chaff while assessing the evidence of the witnesses of the type produced by the prosecution the learned appellate Court has not made a correct approach and has lost sight of the salient features which are apparent on record. In view of the aforesaid facts and circumstances, the conviction of the Petitioner is not sustainable.

In the result, the revision is allowed. The conviction and sentence of the Petitioner are set aside and he is acquitted of the charge levelled against him. Fine, if paid, be refunded.