JUDGMENT : B.K. Behra, J. - The respondents stood charged u/s 304 read with Section 34 of the Indian Penal Code for having killed Subash Chandra Satapathy (hereinafter to be referred to as the 'deceased') on August 16, 1979, at Nagardiha in the district of Ganjam by means of lathi, Kodi and Khanati, owing to a dispute with regard to the boundary of the lands of the parties. The deceased succumbed to the injuries two days after the occurrence. On the basis of the first information report lodged by P. W. 1, investigation was taken up and ultimately the respondents were prosecuted On a consideration of the evidence, the learned trial Judge has found that the charge has not been brought home to the respondents. 2. The sole witness to the occurrence (P. W. 8) had not supported the case of the prosecution for which he was put to leading questions u/s 154 of the Evidence Act. The prosecution has relied on the dying declarations said to have been made by the deceased before P. Ws. 1 and 3 to 5 and the suspicious movements of the three respondents with some instruments some time after the occurrence. 3. The learned Standing Counsel has submitted that he finds it difficult to assail the judgment and order of acquittal. We have heard Mr. N. K. Das who has appeared for the informant and has challenged the order of acquittal. The learned counsel for the respondents has submitted that the order of acquittal is well-founded. 4. No interference is called for in an appeal against acquittal if the findings of the trial Court are reasonable and could have been reached on the evidence on record. Even if another view can be taken, the order of acquittal is not to be dislodged. 5. It admits of no doubt from the evidence of the doctor who had conducted the autopsy that the death of the deceased was homicidal in nature. As has been submitted by the learned counsel for both the sides, if the evidence with regard to the dying declarations is discarded as has been done by the trial Court, there is no evidence to sustain the charge.
As has been submitted by the learned counsel for both the sides, if the evidence with regard to the dying declarations is discarded as has been done by the trial Court, there is no evidence to sustain the charge. In the absence of other evidence pointing to their guilt, no order of conviction can be recorded against the respondents only because of their coming together with some instruments in their hands some time after the occurrence. 6. Of the witnesses who have spoken about the dying declarations, P. W. 1 is the father and P. W. 3 is the brother of the deceased. Close relations are normally supposed to involve the actual assailants of the deceased and their evidence is not to be rejected merely because of their relationship with the deceased. Such evidence is to be examined with care before its acceptance. 7. We are entirely at one with Mr. Das that an order of conviction can be rested solely on a dying declaration without any corroboration if the evidence with regard to the dying declaration is of an unimpeachable character and can, therefore, safely be acted upon But the evidence with regard to dying declaration must be subjected to strictest scrutiny and closest circumspection, as observed by the Supreme Court in K. Ramachandra Reddy and Another Vs. The Public Prosecutor, . 8. Having heard the learned counsel for both the sides and after perusal of the evidence, we find no case for interference, We do not feel ourselves called upon to catalogue the discrepancies and improbabilities in the evidence with regard to the dying declarations noticed by the learned trial Judge. In an affirming judgment, it is not necessary to reiterate the reasons given by the trial Court. (See AIR 1981 Cri. L. J. 1019 State of Karnataka v. Hemareddy and another). We would, however, briefly record our reasons. 9. It would be seen from the evidence of P. W. 1 and the first information report (Ext. 1) that P. W. 1 had made no mention whatsoever in his report with regard to the dying declaration said to have been made by the deceased.
We would, however, briefly record our reasons. 9. It would be seen from the evidence of P. W. 1 and the first information report (Ext. 1) that P. W. 1 had made no mention whatsoever in his report with regard to the dying declaration said to have been made by the deceased. If he had, in fact, heard the deceased telling that the respondents were his assailants and the same thing had been repeated by the deceased before P. W. 3, no other person than the son of the first informant, who would have informed P. W. 1 about it, such a vital fact would not be conspicuous by its absence in the first information report. No doubt, a first information report is not substantive evidence and can corroborate or contradict the maker of it. But omissions of important facts in the first information report affecting the probabilities of the case relevant u/s 11 of the Evidence Act and would affect the bona fides of the prosecution case. (See Ram Kumar Pandey Vs. State of Madhya Pradesh, ). 10. Apart from the aforesaid important feature, P. W. 1 had stated in the first information report that the deceased bad fallen down unconscious after the assault on his person. He had not stated to the Investigating Officer about any statement having been made by the deceased. The evidence of P. W. 2 who had gone to the spot and had carried the injured to the hospital was that the deceased had not recovered his senses and they had not heard anything from him. While according to P. W. 3, the deceased had made a statement that the respondents had assaulted him, the evidence of P. Ws. 4 and 5 was that the deceased had named two of the three respondents as his assailants. On their own showing, P. Ws. 4 and 5 had disclosed about this to any one until their examination in the Court at the stage of trial. In such state of evidence, which was highly unsatisfactory and unreliable, it cannot be said that the learned trial Judge went wrong in discarding the evidence of prosecution with regard to the dying declarations said to have been made by the deceased. 11.
In such state of evidence, which was highly unsatisfactory and unreliable, it cannot be said that the learned trial Judge went wrong in discarding the evidence of prosecution with regard to the dying declarations said to have been made by the deceased. 11. We notice that although the prosecution had sought to build its case on dying declarations it had not been brought out in the evidence of the doctor (P. W. 7), who had conducted the autopsy as to whether with the injuries that the deceased had, he would be in a position to make a dying declaration. In a case of this nature, where a cast is sought to be built on a dying declaration, the prosecution should take care to bring out in the evidence of the doctor conducting the autopsy as to whether the deceased would be in a position to speak out and this step is necessary to get at the truth. 12. For the foregoing reasons, we find no case for interference. The appeal fails and is dismissed. G.B. Pattnaik, J. 13. I agree. Final Result : Dismissed