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1969 DIGILAW 57 (ORI)

LINGA NAIK v. STATE OF ORISSA

1969-04-03

S.ACHARYA

body1969
JUDGMENT : Acharya, J. - This revision is against the appellate judgment of the Additional Session Judge, Puri upholding the conviction and sentence of Petitioner Linga u/s 324 Indian Penal Code. Dasa u/s 325 Indian Penal Code, and that of Karuna, Charan, Baban, Binod and Narayan u/s 323 Indian Penal Code and that of all the seven Petitioners u/s 147 Indian Penal Code. 2. The prosecution case in a nut shell is that on 3-6-1963 the Petitioners along with a few others armed with Lathis and Bhalis trespassed into the complainant's land and reploughed the same, and when the complainant and his men protested they were badly assaulted by the Petitioners. 3. The only point seriously contended by Mr. Pattanaik, the learned Counsel for the Petitioners, was that the Courts below should have discarded the prosecution case, and acquitted the Petitioners as the prosecution failed to explain the injuries on the person of some of the Petitioners. Mr. Pattanaik cited the decision reported in Gangadhar & Narayan v. State 25 (1959) C.L.T. 358 in support of his above contention. There is a later decision on this point reported in Bhondari Konhu v. State of Orissa 28 (1962) C.L.T. 548, wherein, by reference to some previous decisions of this Court, it has he en observed that there is no rule of law or prudence that evidence of witnesses must be discarded if they do not explain the injuries received by the members of the party opposed to them and that the matter depends entirely upon the facts of each case. Reading the two decisions together it cannot be said that the entire prosecution case should be discarded whenever injuries on the person of the accused are not explained or stated by the prosecution. It is the duty of the Court to make an honest effort to disengage the truth from the falsehood, and sift, the grain from the chaff, on a careful perusal of the evidence on record. Whenever the Court is addressed or faced with such an omission to explain the injuries on the accused, it has to consider whether the same was wilful, or accidental, or due to the absence of knowledge on the part of the prosecution witnesses, or could be due to any other reasons and/or eventualities which might possibly cause such an omission to occur in the peculiar facts and circumstances of each case. The guiding principle is to ascertain, if the prosecution can be held to be guilty of deliberate suppression of a material portion of the occurrence by the omission to explain such injuries, so that it can be said that the prosecution witnesses are not stating the truth; or if the said omission in any way creates a doubt in the mind of the Court regarding the prosecution case the benefit of which would go in favour of the accused. It would be hazardous, nay dangerous, to lay down a rule either of law or of prudence that as soon as there is an omission by the prosecution to state and/or explain the injuries on the accused, that fact alone, devoid of any other considerations, would entitle the accused to an acquittal. Mr. Pattanaik next drew my attention to the decision in Mohar Rai and Bharath Rai Vs. The State of Bihar. The facts on the basis of which this case was decider are different from the facts of the present case. In the case before this Lordships there were large number of injuries on the person of Mohar Rai, the accused, and p.w. 15 had noticed the injuries on his person immediately after the occurrence. Accordingly to the doctor these injuries could not have been self inflicted, and was unlikely to have been caused at, the instance of the accused themselves. It was found that the revolver seized from Mohar Rai was not the revolver used during the incident; and that the shots alleged to have been fired from the said revolver by Mohar Rai stood falsified. Considering all these this Lordships opined that the version of the accused-Appellants, that they were cased and badly assaulted by p.w. 1 and several others in the house of p.w. 9, due to which they sustained various injuries at the time of occurrence, was highly probabilised. On these facts it was observed that the failure of the prosecution to offer any explanation in that regard shows that the evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true. Thus it is quite clear that this Lordships did not lay down any such general rule in this case which would support the contention as raised by Mr. Pattanaik. 4. Thus it is quite clear that this Lordships did not lay down any such general rule in this case which would support the contention as raised by Mr. Pattanaik. 4. In the case before me, the few injuries on four of the Petitioners have not been connected with the occurrence in any way, nor is there any finding that the same were noticed or to the knowledge of the prosecution witnesses. Four of the Petitioners were examined by p.w. 8, the doctor, one day after he examined the injured p.ws. All the injuries on Petitioners Nos. 1, 2, 3 and 5, according to the medical certificates Exts. A, B, C and D, were of simple nature, most of them being bruises and a few abrasions and lacerated wounds of very minor type. From the nature of the injuries and the surrounding circumstances it is also difficult to come to a definite finding that the said injuries should or could have been noticed by the prosecution witnesses even if caused during the occurrence. The prosecution witnesses having been badly assaulted were mostly mindful about this own injuries, and as such it is difficult to say that in this case the failure of the prosecution to explain the injuries on the accused persons would amount to a suppression of a material portion of the occurrence, so as to entitle the Petitioners to an acquittal on a finding that the prosecution has not come out with a true case. 5. Mr. Pattanaik did not challenge the impugned judgment on any other question of Jaw. The concurrent finding of fact arrived at by both the Courts below could not successfully be assailed on any other ground. I therefore see no reason to interfere with the conviction or the sentence passed against the Petitioners. 6. In the result, the conviction and sentence passed against the Petitioner by the Courts below are hereby maintained, and the revision accordingly is dismissed. Final Result : Dismissed