Kangress @ Kailash Lenka & Ors vs State Of Orissa

B.P. Routray, J.

The appellants being convicted for imprisonment for life for commission of offence under Section 302 IPC and imprisonment for one month for the

offence under Section 447 of the I.P.C in S.T. No.14/85 of 1999 passed by the learned Additional Sessions Judge, Khurda, have preferred the appeal.

Besides the absconded accused persons, seven accused persons including the present appellants have faced their trial in the aforesaid Sessions trial

being charged with the offences under Sections 447/323/302/354/148/149 of the I.P.C. The other five accused persons, who faced trial along with the

present appellants, though have been acquitted from the offence under Section 302 I.P.C, but were convicted under Section 447 of the I.P.C.

However, their conviction is not the subject matter in the present appeal.

Brief facts of the case as narrated by prosecution are that, on 21.06.1998, deceased Jalandhar Dalbehera found the father of the appellants,

namely, Jalandhar Lenka was uprooting the southern fence of their bari land and on protest, said Jalandhar Lenka abusing in filthy words called the

other accused persons who reached there armed with Lathi, Muli etc., and they all forcibly entered into the bari of the deceased. The accused persons

dealt blows on the deceased, causing injuries on his person. When the wife of the deceased, namely, Suryamani Dalbehera (P.W.12) protested it, one

of the accused pulled her saree. In the meantime, the son of the deceased, namely, Pradip Dalbehera (P.W.11) who was taking bath nearby, reached

at the spot and tried to rescue his father. The deceased fell down on the ground and hearing the shout as other witnesses gathered, all the accused

persons left the spot.

The F.I.R (Ext.8) was lodged immediately after the occurrence by P.W.11. The I.O (P.W.13), the then Sub-Inspector of Banpur Police Station,

registered Banpur P.S. Case No.113 of 1998 and took up investigation. The inquest was held by him and the dead body was sent for post-mortem

examination. P.W.10, Doctor Minati Patanaik, the then Assistant Surgeon of Banpur CHC, conducted autopsy over the dead body on the same day.

Prosecution in order to prove the charge, examined 13 witnesses altogether. Amongst them P.Ws. 5,6,7,8 & 9 and P.W.11 & 12 claimed to be the

eye-witnesses of the occurrence. However, the learned court below disbelieved the evidence of P.W.5 to 9 as the eye-witnesses of the occurrence

and accordingly discarded their ocular evidence of narration of the occurrence. Basing on the testimony of P. W. 11 and 12 and the evidence of other

witnesses including P.Ws. 10 & 13, the learned trial Court found guilty of murder of the deceased on the present appellants.

Mr. Sudipto Panda, learned counsel for the appellants while advancing his argument in favour of the appellants has submitted that the learned trial

Court has erred in convicting the appellants without proper appreciation of evidences brought on record. As per him, the place of occurrence which

has been stated by the witnesses to be the threshing floor in possession of the deceased, has not been established on record in absence of any material

documents, but the Court below has concluded about criminal trespass of the appellants into the same. What his submission is, once the guilt of

criminal trespassing into the land of the deceased is not established, the subsequent act of alleged murder is also waived away. His further argument

goes to the extent that in absence of any stains of blood found on the Thenga and in absence of seizure of any Muli, the prosecution case has to be

seen with doubts to disbelieve the implications attributed to the appellants. It is also submitted by learned counsel for the appellants that, the charge

was under Sections 302/149 and in view of the finding of the Court below to acquit all the accused persons from the offence under Section 148 of the

I.P.C, holding them guilty under Section 302 I.P.C alone is not sustainable also. The learned counsel also seriously challenges the status of P.W.11 &

12 as eye-witnesses to the occurrence in absence of injury noticed on their person.

On the other hand, Mr. Katkia, learned Additional Government Advocate lends support to the findings of the Court below in course of his

submission. He further submits that the said P.Ws.11 & 12 are the natural witnesses who are the wife and son of the deceased and therefore, their

narration of the occurrence against the appellants as concluded by the learned Court below cannot be faulted with.

We have heard both parties and carefully perused the L.C.R including the impugned judgment. It is seen from the evidence of P.W.10, the doctor

that, the deceased sustained seven external injuries along with corresponding internal injuries and the cause of death is due to coma on account of

cranio-cerebral injuries noticed by him. When the alleged weapons used for commission of the offences is Thenga and Muli, looking to the nature of

the injuries, both external and internal noticed by P.W.10, we do not have any doubt with the conclusion of the learned trial Judge about homicidal

death of the deceased. Moreover, such homicidal death of the deceased is not seriously disputed by the appellants.

It is seen that, the learned trial Court has disbelieved the oral account of narration of the occurrence by P.Ws 5, 6, 7, 8 & 9 with the reasoning that

P.W.5 has not stated so before the I.O during his examination under Section 161 of the Cr.P.C and thus coming to the finding that by the time P.W.5

has reached at the spot, the deceased had already fell down and the accused persons had left the spot. Therefore, the rest of the alleged eye-

witnesses viz; 6,7,8 & 9 who admittedly reached at the spot after P.W.5 are also consequently not believed to be the eye-witnesses. We do not find

any infirmity in the said reasoning of the learned trial Judge and also we agree with him on this aspect.

So far P.W.12 is concerned, she has very consistently stated in her evidence about the assault. It is her evidence that, present two appellants along

with Kandha Pradhan and Ramesh Lenka assaulted her husband with Lathi and Muli and after the falling of the deceased on the ground, they all

trampled over his body. This P.W.12 is the wife of the deceased and had been to the spot along with the deceased in that fateful morning. She has

consistently named these two appellants causing assault to the deceased by means of Lathi and Muli and two bamboo lathi seized from the spot in

course of investigation were sent for chemical examination, but no stain of blood was found on the same. It is the contention of the appellants that in

absence of seizure of any Muli and in absence of presence of blood stain on the bamboo lathi, the version of the eye witness should not be believed.

But this argument advanced on behalf of the appellants is not acceptable for the reason that said bamboo lathis were seized laying on the spot and it is

always not necessary to have stain of blood on the weapons like lathi after commission of the injuries. The nature of injuries noticed on the person of

the deceased is corroborating the nature of weapons seized stated to have been used in the occurrence and this aspect is not disputed by the

appellants. Further, there is little difference between a Muli and bamboo lathi and it is difficult on the part of a witness to account such difference

precisely. Apart from this, non-seizure of Muli is not a material irregularity to affect prosecution’s case, particularly in view of the statements of

eye-witnesses. The evidence of P.W.11, who is another eye-witness to the occurrence is also corroborating to the evidence of P.W.12 in narrating

the direct action of assault on the deceased. The circumstances also do not warrant any doubt about the presence of both P.Ws. 11 and 12 at the

spot.

It is to be reminded here that, the appellants have been convicted for the offence of criminal trespass along with the offence of murder. The RoR

seized and marked under Ext.11 shows the spot land is recorded in favour of the father of the deceased. It has also come out in the evidence of

P.Ws.11, 12 and 13 that the same was in possession of the deceased. The status of said land is of course mentioned as ‘Sarada-Do-fasali’. At

this juncture, argument is raised by the appellants that in absence of record to reveal the spot land as threshing floor, the contention of the witnesses

about the assault which as per them took place on threshing floor should not be believed. This argument may sounds well on the face of it, but actually

has no force at all if seen little deeply, because a threshing floor is usually prepared on cultivable land or Bari land. It is usually not mentioned and need

not always be mentioned specifically in the official record. Therefore, the conviction of the appellants for criminal trespass as arrived by the trial court

is seen well-founded.

It is the consistent case of both the parties that there was previous enmity between them, which is seen from the trend of cross-examination of

most of the witnesses as well as from the examination of all convicts under Section 313 of the Cr.P.C. Enmity is a double edged weapon. Therefore, it

cannot be said that due to such enmity, the appellants have been falsely implicated or false statements have been made by the witnesses against the

appellants in course of trial. When the evidence of eye-witnesses i.e., P.Ws.11 and 12 leaves no doubt on their truthfulness, the factum of enmity

between the parties rather strengthens prosecution case more against the accused persons.

We have made a close scrutiny of the evidence of P.Ws. 11 and 12 as the eye-witnesses not only for the reason of alleged previous enmity

between the parties, but also for their close relationship with the deceased. But, no infirmity or material discrepancy is seen in their evidence to discard

their version.

It is true that all the accused persons including the appellants have been acquitted of the offence of rioting under Section 148 of IPC. An argument

is advanced here on behalf of the appellants that since the appellants were charged for the offences under Sections 447/149 and 302/149 of IPC, in

view of their acquittal from the charge under Section 148 of IPC, they cannot be held guilty of the charge for the substantive offences under Sections

447 and 302 of the IPC for which no charge was framed. This argument is not sustainable. It needs to understand here that liability of ‘common

object’ is always associated with unlawful assembly. The basis for charge under Section 149 always depends on the substantive offence. In the

present case, the substantive offences against the appellants are under Sections 302 and 447 of the IPC. As seen from the impugned judgment, all the

seven accused persons who faced the trial have been convicted for the offence under Section 447 IPC. Therefore, it would have been appropriate on

the part of the learned trial Judge to record conviction for the offence under Sections 447/149 of the IPC instead of section 447 only. Similarly, the

conviction in respect of the offence under Section 302 of the IPC against the appellants should have been under Sections 302/34 of the IPC since the

intention of the every individual member of an unlawful assembly is tacit in the common object. The accused persons charged under Section 149 of

IPC along with the substantive offence are therefore charged for the substantive offences also. When the charge for the aforesaid offences was

added with Section 149 IPC, then it is not correct on behalf of the appellants to contend that the conviction cannot be for the substantive offences

alone, because as stated above, the charge under Section 149 IPC is always additional to the substantive offence. So, it is not correct to say that when

the charge for common object is not established, thereby, the charge for the substantive offence is also not established or cannot be established.

However these are all technical errors and in our considered opinion, the same have not occasioned any failure of justice.

Considering all the materials available on record and in view of the discussions made above, no reason is seen to impugn the said conviction of the

appellants held by the learned trial court. In the result, the conviction being found without any infirmity, I upheld the same and accordingly the appeal is

dismissed.

S.K.Mishra, J.

I have carefully gone through the judgment rendered by my learned brother in context with the argument advanced and evidence discussed above. I

have minutely examined the impugned judgment. Basing on such examination of record and appreciation of evidence, with humbleness and due

respect to my learned brother, I state that I do not agree with the findings recorded by him.

The following are the undisputed facts on the basis of which the evidences are to be examined.

(i) It is apparent from the evidence recorded in this case that there is prior enmity between the accused persons on one hand and the deceased and

the complainant on the other hand.

(ii) The complainant/informant i.e. P.W.11 is a practicing Advocate of the Banapur Bar Association.

(iii) There are several cases between the two parties. All the witnesses examined on behalf of the prosecution as eye-witnesses in the case, namely,

P.Ws. 5, 6, 7, 8, 9, 11 and 12 are relations of the deceased.

(iv) P.W.11 happens to be the son of the deceased. P.W.12 happens to be the widow of the deceased.

(iv) The learned trial Judge did not accept the evidence of P.Ws. 5 to 9 to be true account of eye-witnesses and he rejected the evidence.

(v) My learned brother also concur with the findings that evidences of P.Ws. 5 to 9 cannot be accepted as evidence of eye-witnesses.

(vi) The evidences of P.Ws. 11 and 12 were scanned and their evidences were partly accepted by the learned trial judge in the sense that he has

come to the conclusion that they have implicated Kangress @ Kailash Lenka, Sarat Lenka and two other absconding accused. Rest of the accused

facing trial were acquitted of offence under Section 302 of the IPC.

(vii) The lathi seized from the spot on chemical examination was not found to be stained with blood. Though it is stated by P.Ws. 11 and 12 that the

wearing apparels of the deceased, namely, the dhoti and napkin were stained with blood, on chemical examination no such blood was found on the

wearing apparels.

(ix) Though the exact place of occurrence, which according to informant, is Bari belonging to the deceased, according to other witnesses, it is

thrashing floor belonging to deceased and thirdly, it has been recorded as ‘Sarada Do Fasali’. The Investigating Officer has not prepared in his

spot map in the case. So, there is no objective determination of spot in the case. At the cost of the repetition, I further notice once again that, on the

basis of part of the statement of P.Ws.11 and 12, the appellants have been convicted. Both being close relations of the deceased, who had prior

enmity with the appellants, need very careful examination.

In the case of Ram Ashrit Ram and others vs. State of Bihar, (1981) 2 SCC 60 ,the Hon’ble Supreme Court held that when it was a common

ground that there were two warring factions in the village and the complainant party belongs to one group and the victim party belongs to other group

and the material witnesses of the prosecution either interrelated or otherwise interested in the prosecution, their testimony would be safely acted upon

if it passes the test of close and severe scrutiny. If the evidence of the prosecution witness are intrinsically improbable and unreliable and the

substratum of the prosecution case is improbabilised, if not falsified, by the surrounding circumstances of the case, their conviction cannot be upheld.

In this light, it is not disputed by the prosecution either at the time of trial or at the stage of appeal that there is dispute between the villagers. They had

formed two groups. All the eye-witnesses examined in this case are interested in the prosecution. P.W.11-Pradip Dalabehera and P.W.12-Surymani

Dalabehera happen to be son and widow of the deceased respectively. On the basis of the evidence of these two witnesses, both the appellants have

been convicted in the case. It is that Pradip Dalabehera has admitted at paragraph-19 of the cross-examination that by the time of examination on

11.10.1999, he has been practicing as an Advocate. In addition to being an interested and inimical witness, this witness happens to be a highly qualified

person and a member of the Banapur Bar Association. So, his evidence has to be examined keeping in view his socio-economic, cultural and

educational background. It is not to be appreciated as if the witness is illiterate rustic villager. Rather, it has to be kept in mind that he is a very

intelligent person having high qualification. Keeping such consideration in mind, an examination of the evidence of this witness reveals that he has

stated on 21.06.1998 at about 7 a.m., while he was taking bath at the well near his Bari, the incident took place, he found his parents, at that time,

were going to that Bari to clean the same. At that time, they found that the southern side fence of their Bari was being uprooted by accused Jalandhar

Lenka, since acquitted. When his father protested, the accused Jalandhar Lenka abused his father and called other accused persons. Being called, 17

accused persons including these two appellants and some others have come to the spot. Thereafter, all of them forcibly entered inside their Bari. On

being directed by accused Jalandhar Lenka, accused Kandha Pradhan (absconding), Sarat Lenka (appellant no.2), Ramesh Lenka (absconding) and

Kangress @ Kailash Lenka (appellant no.1) surrendered his father and assaulted him by means of lathi and MULI on his head, base of the ear and

other parts of the body. Due to which, his father fell down on the ground near the cow dung pit of his Bari. After his father fell down remaining

accused persons also trampled over his father. At that time, his father was shouting ‘MARI GALI’, ‘MARI GALI’.

At that time, his mother, witness further describes, went to rescue of his father. Then, Baikuntha Lenka, Subash Pradhan and Markanda Sasmal

assaulted his mother. Out of them, Baikuntha Lenka pulled the sari of his mother and other accused persons were holding the hair of his mother and

assaulted her for which, she fell down.

Seeing this incident, the witness came running to his Bari and saw Kailash Jena, Amulya Lenka, Sukuti @ Krushna Lenka and Manoj Pradhan

trampled over his father came out and assaulted the witness. Due to such assault, his father died at the spot. He lodged written report before the

Officer In-Charge, Banapur Police Station, Banapur and the case was initiated.

In the cross-examination, he has admitted that since, 1992 till the date of the alleged incident; several cases were filed between them. But, he

denied that the witnesses cited in the case belong to one group and accused persons belong to another group. He could not say if there is any

independent witness who is neutral to both the groups. He was not examined medically. His mother was also not examined medically. The witness

further states that the village tube well is situated about 300 to 400 cubits away from the spot. But, he has denied that no well situates close to the

spot. In the cross-examination, he has further stated that by the time of his arrival except his mother nobody else was present and at that time these

accused persons were assaulting his father. He could not specifically state which accused was on the front side and who was on the back side at the

time of assault since all of them by surrounding his father were assaulting him. He admitted that he cannot say so which accused had dealt how many

blows on which part of the body of his father. He denied the suggestion that he has stated before the I.O. that there was exchange of hot words

between his father and the accused persons and hearing them many persons gathered there. He further stated that he did not remember if he has

mentioned in the FIR that at the time of incidence his parents were cleaning their Bari for cultivation. He has also denied the defence suggestion that

he has not stated before the I.O. that at the time of incident, Jalandhar Lenka directed other accused persons to finish his father. He admitted that he

does not remember if he has mentioned so in the FIR. He has further denied the defence suggestion that he has not stated before the I.O. that getting

such direction, Kandha Pradhan, Sarat Lenka, Ramesh Lenka and Kailash Lenka surrounded his father and assaulted him with lathi and MULI. He

has also denied the suggestion that he has not specifically stated before the I.O. that accused Kandha Pradhan assaulted on the head of his father;

and that Ramesh Lenka assaulted on the head and base of the ear of his father. He categorically stated that due to such assault, the wearing Lungi of

his father was stained with blood. The napkin he was holding was also stained with blood. Police seized those wearing apparels. He has denied the

defence suggestion that he has not seen the actual assault and concealing the true state of affair.

A reading of the evidence of P.W.13-Sushil Kumar Mishra, the Investigating Officer of the case, reveals that he has stated at paragraph-29 of his

cross-examination that P.W.11-Pradeep Dalabehera had stated before him that at the time of incident, there was exchange of hot words between his

father and the accused and hearing the same many persons gathered there. The I.O. further states that the said witness-P.W.11 had not stated before

him that at the time of incident Jalandhar Lenka directed other accused persons to finish the deceased. The I.O. has stated in the statement recorded

under Section 161 Cr.P.C. that the witness has stated that Kandha Pradhan, Sarat Lenka, Ramesh Lenka and Kailash Lenka assaulted his father. But

he has not specifically mentioned that getting such direction from Jalandhar Lenka, these four persons, namely, Kandha Pradhan, Sarat Lenka,

Ramesh Lenka and Kailash Lenka assaulted his father with lathi and MULI on his head. He has also not stated before the I.O. that Kandha Pradhan

and Ramesh Lenka assaulted on the head and base of the ear of his father.

Before delving into the probative value of evidence of P.W.11, it is appropriate to examine the evidence of P.W.12. P.W.12-Suryamani

Dalabehera, the widow of the deceased, has stated that on 21.06.1998 at about 7 a.m., herself and her husband Jalandhar Dalabehera had been to

their Bari land situates adjacent to village Kotha Ghar for cultivation. While they were standing on their Bari land, accused Jalandhar Lenka started

demolishing the fence in between their land and his land to which her husband-Jalandhar Dalabehera protested. Thereafter, all the accused persons

forcibly entered inside the Bari land after which accused Jalandhar Lenka directed other accused persons to finish her husband. At that time, these

accused persons were armed with lathi and Muli etc. Getting direction, Ramesh Lenka, Kailash Lenka, Kandha Pradhan, Sarat Lenka and Jalandhar

Lenka assaulted her husband with lathi and Muli while the other accused persons had surrounded her husband. When her husband shouted, her son,

P.W.11, who was taking bath near the well, came running there. Due to such assault, her husband fell down on the ground after which all the accused

persons trampled on the body of her husband. Thereafter, Baikuntha Lenka pulled her sari due to which she fell down. Thereafter, Subash Pradhan,

Markanda Sasmal and Baikuntha Lenka pulling the hair of her head assaulted her. When her son, P.W.11, tried to intervene, Kailash Jena, Krushna

Lenka, Amulya Lenka, Manoj Pradhan and Pradeep Lenka assaulted her son with fist blows and pushes. Due to such assault, her husband died at the

spot. The incident took place near the cow dung pit of their Bari.

In the cross-examination, P.W.12 has denied the suggestion that she has not stated before the I.O. that on the back side of the village Kotha Ghar,

she has got a Bari land where the incident took place. She has further stated that at the time of uprooting of the fence, her husband protested, but

there was exchange of hot words. She denied the defence suggestion that she has stated before the I.O. that at the time of incident there was

exchange of hot words. She also admitted that she cannot say if Jalandhar Lenka along with others assaulted on the head of the deceased. She could

not say which accused assaulted on which part of her husband as all of them were assaulting by surrounding her husband. She further states that five

accused persons named in her examination-in-chief assaulted her husband. But, she denied the suggestion that she has not stated so before the I.O.

She denied the suggestion that she has not stated before the I.O. regarding presence of accused Gundicha Lenka at the spot; and the accused persons

trampled over the body of her husband when he fell down.

Many villagers had gathered at the time of the incident. She denied the defence suggestion that she has not stated before the I.O. that the accused

persons uprooted the fence of her Bari and assaulted her husband; and that accused Jalandhar directed the other accused persons to finish her

husband; and that after her husband fell down on the ground shouting ‘MARI GALI MARI GALI’ her son reached there. She further denied

the suggestion that she has not stated before the I.O. that Subash Pradhan, Markanda Sasmal and Baikuntha Lenka pulled hair of her head.

A cross reference to evidence of P.W.13 reveals that P.W.12 has stated before him that the occurrence took place on the land situates on the

back side of village Kotha Ghar; and that she has stated before the I.O. that at the time of the incident accused Jalandhar Lenka came and directed

them to put the fence in the appropriate place; and that at the time of incident there was exchange of hot words; and that she has stated before the

I.O. that Sarat Lenka, Ramesh Lenka and Kailash Lenka assaulted her husband. She has not stated before the I.O. regarding the assault to her

husband by Jalandhar Lenka and Kandha Pradhan. She has not stated before the I.O. regarding the presence of Gundhicha Lenka at the spot. She

has not stated before the I.O. that when her husband fell down all the accused persons trampled over his body. While stating that only Jalandhar

Lenka uprooted one lathi from the fence, she has not stated that the accused persons uprooted the fence of her Bari and assaulted her husband. She

has also not stated before the I.O. that Jalandhar Lenka directed others to finish her husband. She has stated before the I.O. that after her husband

fell down on the ground shouting ‘MARI GALI, MARI GALI’, her son reached and she also has not stated before the I.O. that Subash

Pradhan, Markanda Pradhan and Baikuntha Pradhan pulled the hair of her head.

Thus, from the evidence on record i.e. a joint reading and appreciation of evidence of P.Ws.11 and 12, two witnesses, who have been partially

believed by the learned trial Judge and the Investigating Officer of the case, it is apparent that there are a number of contractions between the

evidence given in the court under oath and the previous statement made before the I.O. under Section 161 of the Cr.P.C. Mr. J. Katikia, learned

Addl. Government Advocate submitted that as far as the present two appellants are concerned, the evidences of P.Ws.11 and 12 are consistent and

the contradictions appearing in their evidences do not affect the prosecution case.

The evidence of P.W.11 reveals that four accused persons including these two appellants assaulted his father with lathi and Muli on the head, base

of the ear and other parts of the body. But, he has not specifically stated that on which part of the body assault was made, except head and base of

the ear and which of the appellant gave blows on the head of the deceased. The evidence of P.W.10-Dr.Minati Pattnaik reveals that there are four

contusions on the head of the deceased, one contusion on the postero lateral to left ear and in the right side 5 c.m. postero-lateral to posterior aspect of

right ear. There was another abrasion on the left shoulder joint. She has stated that injuries described are anti-mortem in nature and could have been

caused by hard and blunt trauma. She has not examined the weapon of offence in the case though some lathies were seized by the I.O. She has

stated on 11.10.1999 that the nature of contusion and abrasion depend upon the region and organ of body. She has denied the suggestion that

contusions and abrasions are superficial in nature according to Modi’s Jurisprudence.

In the case of State of U.P. vs. Ballabh Das, AIR 1985 SC 1384 ,the Apex Court has held that there is no law which lays down that in the

absence of any independent witness, the evidence of interested witnesses should be thrown out at the behest or should not be relied upon for

convicting an accused. The law requires that where the witnesses are interested, the court should approach their evidence with care and caution in

order to exclude the possibility of false implication. In the case of State of U.P. Vs. Anil Singh, 1988 AIR 1998 ,the Hon’ble Supreme Court has

held that experience shows that invariably the witnesses add embroidery to prosecution story, 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 in the main, the case should not be rejected. It is the duty of the

Court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly

to destroy confidence in the witnesses.

The duty of the court is not to imagine things or read matters into the evidence of the witnesses. While considering the case the learned trial Judge

as well as my learned brother Judge has come to the conclusion that the statement on witnesses that the spot, where the occurrence took place, is one

thrashing floor as stated by the witnesses, runs contrary to the evidence P.Ws. 11 and 12 that it is a piece of Bari. It also runs contrary to the fact that

it has been recorded as ‘Sarada Do Fasali’. It cannot be presumed that thrashing floor is developed on cultivable land or Bari land, as that is not

the case of the prosecution. The prosecution has singularly failed in this case to objectively establish the spot of occurrence. Is it Bari belonging to the

deceased or a thrashing floor or is a cultivable land recorded as ‘Sarada Do Fasali’. In the absence of a map, in the absence of a report of a

survey knowing commissioner like the Revenue Officer, it is difficult to come to the conclusion regarding the spot of occurrence.

On top of it, it is seen that the evidence of P.Ws. 11 and 12 has been partly accepted by the trial court and the appellate court and part of it has

been rejected. Accepting a portion of the evidence, the learned trial Judge has come to the conclusion that the prosecution has proved that these two

appellants and the absconding accused persons, Ramesh Lenka and Kandha Pradhan assaulted the deceased with lathi and Muli, due to which he fell

down on the ground. Whereas though P.W.4 speaks of these four persons as the assailants, P.W.12 takes the names of Jalandhar Lenka also to have

assaulted the deceased. The version of the prosecution as put forth by the P.Ws. 11 and 12 goes against the very substratum of the prosecution case

as it is the prosecution case that more 19 persons with some named and unnamed persons assaulted the deceased.

Another important aspect, which has been stipulated in the cross-examination in this case, is that P.W.13, the Investigating Officer has stated that

he has not mentioned in the case diary that the spot is thrashing floor of the deceased-Jalandhar Dalabehera. He has also not mentioned the plot

number of the said plot. But, he admitted that he has mentioned in his case diary that the deceased encroached his land.

By the time, he arrested and forwarded the accused-Kangress @ Kailash Lenka on 22.06.1998 to the court of JMFC, Banapur. He had already

examined the wife-P.W.12, son-P.W.11 and brother in-law of the deceased. He forwarded the accused along with the statement of the witnesses

recorded that far. He also forwarded the seizure list. He admitted that he had not mentioned that fact in his forwarding report. He admitted that

except the statement of Sarat Chandra Barala, he had not forwarded any other statement of any other witnesses recorded in his forwarding report.

He has also not mentioned the names of the eye-witnesses in his forwarding report. He denied the suggestion given by the prosecution that till

forwarding of the accused-person, no statement of any witness was recorded nor he had decided to cite the persons as eye-witness and for that he

had not forwarded the statement of the witnesses along with accused Kailash Lenka nor mentioned the names of the eye-witnesses in his forwarding

report. He denied the suggestion that the statements were subsequently manipulated.

Thus, keeping in view the entirety of the prosecution case that 19 persons with some named and unnamed persons assaulted the deceased, which

has been seen by P.Ws. 5, 6, 7, 8, 9 and P.Ws.11 and 12, the acceptance of only some portion of the evidence by the learned trial Judge in convicting

these two appellants is not proper. Moreover, on chemical and serological examination, no blood was detected on the wearing apparels of the

deceased, no spot map was prepared. It is not determined conclusively that the spot is the Bari of the deceased or a thrashing floor or a ‘Sarada Do

Fasali’ cultivable land. Keeping in view the previous enmity and interestedness of the witnesses on a closure scrutiny, I am of the opinion that the

appellants are entitled to the benefit of doubt as there is reasonable doubt in my mind regarding their complicity in the occurrence as the possibility and

probability of the witnesses falsely implicating them cannot be ruled out.

Accordingly, the Criminal Appeal is allowed.

Both the appellants are found not guilty of the offences charged. They are acquitted. They be set at liberty forthwith.

Since there is a difference of opinion of the two judges of the Court, the matter may be placed before the Hon’ble Chief Justice for

appropriate order to refer the case to a 3rd Judge to resolve the issue.