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2006 DIGILAW 576 (ORI)

Ratnakar Mallik v. State of Orissa

2006-08-02

PRADIP MOHANTY

body2006
JUDGMENT PRADIP MOHANTY, J. — The above criminal appeal has been filed challenging the judgment and order dated 23.03.1987 passed by the 1st Addl. Sessions Judge, Cuttack in S.T. No.78 of 1986 convicting the appellants under Section 304-II read with Section 34, I.P.C. and sentencing them to undergo rigorous imprisonment for five years. During pendency of the appeal, appellant No.1-Ratnakar Mallick has died. Therefore, the appeal stands abated as against him. 2. The case of the prosecution, as unfolded during trial, is that on 31.08.1985 when Musei Dhal (since dead) was performing weeding operation in his land, the accused persons being armed with deadly weapons all on a sudden surrounded him. Accused-appellants Ratnakar, Michhu (son of Ratnakar) and Lokanath as¬saulted the deceased with lathis and Bahuings. The other accused persons assaulted Biswanath @ Biswambar, Bhagaban, Purna, Shyamsundar and Siba. On the same day, FIR was lodged at 9 p.m. at Badachana P.S. by the deceased himself and on the basis of the said FIR the case was registered. The informant was sent to Bada¬chana P.H.C. for treatment, but the Medical Officer, Badachana P.H.C. referred him to the S.C.B. Medical College and Hospital, Cuttack, where he succumbed to the injuries on 02.09.1985. The Police seized a lathi (M.O.I.) from the house of the accused Raghu, two lathis (M.Os.II and III) from the house of accused Babaji and two lathis (M.Os. IV and V) from the house of accused Michhu. After completion of investigation, final form was submit¬ted again 13 accused persons including the above appellants. 3. All the appellants were charged under Sections 148,302/149, 325/149 and 337 IPC; accused Ratnakar, Michhu (son of Ratnakar) and Lokanath further stood charged under Sections 302/34 IPC; accused Akhaya, Michhu (son of Ratnakar), Gurubari, Bhagha, Michhu (son of Pari) and Duryodhan also stood charged under Section 325 IPC; and accused Raghab further stood charged under Section 323 IPC. 4. The plea of the appellants was complete denial of the charges. Their case was that when accused Ratnakar (since dead) and Michhu (son of Ratnakar) were cultivating the Anabadi land of the Government, Musei Dhal and Sukadeb Mohanty (P.W.2) and others came there being armed with deadly weapons and asked them not to cultivate the Anabadi land. 4. The plea of the appellants was complete denial of the charges. Their case was that when accused Ratnakar (since dead) and Michhu (son of Ratnakar) were cultivating the Anabadi land of the Government, Musei Dhal and Sukadeb Mohanty (P.W.2) and others came there being armed with deadly weapons and asked them not to cultivate the Anabadi land. When they did not agree, those per¬sons attacked Ratnakar and Michhu (son of Ratnakar) and assaulted Lokanath along with Sarbeswar Mallik, Duryodhan Mallik, Raghab Mallik,Michhu Mallik (son of Pari) and Gurubari Mallick, who came to their rescue, causing grievous injuries. In order to prove its case, prosecution examined as many as sixteen witnesses including the doctors and the I.O. and proved 28 exhibits. Defence also examined three witnesses in support of its case and proved Exts. A to N. 5. Learned Addl. Sessions Judge after considering the evidence and materials available on record found that the prose¬cution has been able to prove the charge under Section 304 Part-II read with Section 34, IPC against accused Ratnakar (since dead), Michhu (son of Ratnakar) and Lokanath and accordingly convicted and sentenced them to undergo rigorous imprisonment for five years by his judgment dated 23.03.1987. He, however, found that the prosecution has failed to prove the charges under Sec¬tions 148, 302/149, 325/149, 337, IPC against all the accused persons including the appellants, under Sections 302/34, IPC against accused Ratnakar (since dead), Michhu (son of Ratnakar) and Lokanath, under Section 325 IPC against accused Akhaya, Michhu (son of Ratnakar), Gurubari, Baghha, Michhu (son of Pari) and Duryodhan and under Section 323, IPC against accused Raghab and acquitted all of them of the said charges. 6. Counsel for the appellant contended that in the instant case the prosecution suppressed the genesis and origin of the occurrence and did not present the true state of affairs. He further contended that non-explanation of the injuries on the persons of the accused is fatal to the prosecution. Improvements were made during the stage of trial in order to suit the medical evidence. Therefore, the testimony of the eye witnesses is com¬pletely unreliable and unacceptable. P.Ws. 1 to 4 and 6 are accused in the counter case and their evidence can be discarded as they have suppressed the assault on the accused. Improvements were made during the stage of trial in order to suit the medical evidence. Therefore, the testimony of the eye witnesses is com¬pletely unreliable and unacceptable. P.Ws. 1 to 4 and 6 are accused in the counter case and their evidence can be discarded as they have suppressed the assault on the accused. The members of the prosecution party are the aggressors and the appellants in exercise of their right of private defence have assaulted the deceased. Therefore, they cannot be held guilty. In support of his contentions, he has placed reliance on the decisions in Lakshmi Singh v. State of Bihar, AIR 1976 SC 2263 , Krushna Podha v. State of Orissa, (1992) 5 OCR 260, and Mahendra Singh v. State of Rajasthan, AIR 1989 SC 982 . 7. Mr. Pattnaik, learned Addl. Standing Counsel, submitted that P.Ws.1 to 6 are reliable witnesses. Nothing has been elicit¬ed from them in course of cross-examination to discredit their version. He also contended that learned Addl. Sessions Judge has rightly convicted the appellants basing upon the evidence of the eye witnesses. 8. Perused the depositions of the eye-witnesses, namely, P.Ws.1 to 6 and the FIR. Deceased himself is the informant in the present case. There is no mention in the FIR that the occurrence took place because the appellants started ploughing the Anabadi land. On the other hand, it has been simply stated that while the deceased was working in his field, all on a sudden the accused persons assaulted him. The FIR was written by P.W.4 in presence of some other villagers, and the deceased put his LTI thereon. Admittedly, P.W.4 is also an ocular witness, but he had not ascribed any specific role to the appellants and accused persons. In the FIR there is no specific overt act ascribed to appellant No.2 that he assaulted on the head of the deceased by lathi. Though P.W.2 in his examination-in-chief stated that appellant No.2 gave the lathi below to the deceased, the I.O., on being confronted, stated that P.W.2 had not made such a statement during investigation. Similarly is the situation in case of P.Ws.3, 4, 5 and 6. Thus, all the eye-witnesses to the occurrence have suppressed the true story and developed the fact in Court after seeing the medical evidence. Similarly is the situation in case of P.Ws.3, 4, 5 and 6. Thus, all the eye-witnesses to the occurrence have suppressed the true story and developed the fact in Court after seeing the medical evidence. In other words, improvements were made to suit the medical evidence after seeing the same and prosecution witnesses have changed their version. Therefore, the eye-witnesses cannot be said to be reliable or trustworthy wit¬nesses. In this connection, reference may be made to the case of Mahendra Singh (supra). Admittedly, the prosecution case is that only some accused persons from out of those who were ploughing the Anabadi land assaulted the deceased. But such story against the deceased appellant Ratnakar is nothing but a subsequent development during the trial. 9. The second contention of the appellants is with regard to non-explanation of the injuries on the person of the accused. D.W.1 examined the injured-accused including the appellants and found some fatal/grievous injuries on their person. It appears from the evidence of D.W.2 that he treated appellant No.2-Michu as an indoor patient from 31.08.1985 till 13.09.1985 and found dislocation of right shoulder joint and fracture of neck of right humerus and those injuries were grievous in nature. Likewise D.W.3 also treated appellant Ratnakar (since dead) in the S.C.B. Medical College, Cuttack and found fracture in his left humerus and fracture of head of proximal phalanx of left hand. No expla¬nation has been given by the prosecution with regard to the injuries sustained by the accused persons, thereby suppressed the genesis and origin of the occurrence and has thus not presented the true version. Omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance. Admittedly, there was a counter case in S.T. No.123 of 1986 in which most of the present witnesses including P.Ws. 1 to 4 and 6 are accused. There, some of the accused per¬sons have been convicted by the trial Court and such conviction has been confirmed by this Court in Criminal Appeal No.65 of 1987. This shows that the accused persons received the injuries in course of the same transaction. The details of the injuries sustained by the accused persons are as follows : The above injuries are not superfluous or minor. This shows that the accused persons received the injuries in course of the same transaction. The details of the injuries sustained by the accused persons are as follows : The above injuries are not superfluous or minor. The in¬juries were serious and some of them have been inflicted by sharp cutting weapons.In the above circumstances, it was the bounden duty of the prosecution to give reasonable explanation for the injuries sustained by the appellants. It is not the case of the prosecution that the injuries sustained by the appellants are by way of self-infliction. Non-explanation of injuries on the ac¬cused persons in the same transaction assumes much greater impor¬tance. In this regard, reference may be made to the cases of Lakshmi Singh (supra) and Krushna Podha (supra). 10. In view of the above discussion, this Court is of the view that the appellants are entitled to acquittal as the prose¬cution has suppressed the true story and genesis of the case, has not offered any explanation for the injuries sustained by the appellants, and the witnesses are not trustworthy. 11. In the result, the appeal is allowed and the order of conviction and sentence passed by the trial Court against the appellants is set aside. Appeal allowed.