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2007 DIGILAW 289 (ORI)

State of Orissa v. Munsi Choman Ali

2007-04-25

P.K.TRIPATHY, R.N.BISWAL

body2007
JUDGMENT Heard. 2. The order of acquittal passed by the Addl.Sessions Judge, Balasore on 15.12.1986 in S.T. No.1/124 of 1986/85 is under challenge. 3. Accused-Respondents, 21 in number, faced their trial for the offences under Sections 147/148/323/324/325/302/149 I.P.C. Charge was accordingly framed against them. To substanti¬ate the charge, prosecution examined as many as 11 witnesses and relied on a series of documents marked Exts. 1 to 28. Out of them Ext.1 is the F.I.R. and Ext. 15 is the Post mortem report, Exts.2/1 to 12/1 are the injury reports of different injured persons, eleven in numbers. Some of them have been examined as eye witnesses to the occurrence. Prosecution also relied on the Material Objects (M.Os. I to III) out of them M.O.III is a cycle chain. 4. While denying the charge of a plain and simple case of riot and murder by an unlawful assembly, accused persons took the plea of a sudden mutual fight between two groups i.e. prosecution party and the accused party and in support of that adduced docu¬mentary evidence besides giving relevant suggestions to the witnesses in course of their cross-examinations. Amongst the exhibited documents (Exts. A to P), Ext. A/1 and B to J are the injury reports relating to some of the accused persons. Ext. N is the F.I.R. in the counter case which was tried as S.T. No.2/25 of 1986. 5. Trial Court took note of the evidence on record and found that though deceased suffered homicidal death, yet the evidence of P.W.6 indicates that the deceased could not have sustained the head injury, which was possible only by heavy sharp cutting weapon like sword, if that blow would have been dealt while he is in a prostrated condition with face down words. On the other hand P.Ws. 1 to 4 describing themselves to be the eye witnesses to the occurrence stated in their examination-in-chief that on being surrounded by the accused and assaulted by Lathi and other weapons the deceased fell down and thereafter in that posture sword blow was given to him. In addition to that P.Ws. 1 to 4 stated in their examination-in-chief only about the assault on the deceased and the other persons who had accompanied him, but did not tell about the mutual fight between two groups. In addition to that P.Ws. 1 to 4 stated in their examination-in-chief only about the assault on the deceased and the other persons who had accompanied him, but did not tell about the mutual fight between two groups. On the other hand, during cross-examination all such witnesses admitted that there was a mutual fight between the two groups and that such witnesses could not say as to who assaulted whom and on what part of the body of the deceased or the injured persons. Referring to such evidence on record, learned Addl.Sessions Judge found it proper to extend benefit in favour of the accused per¬sons and accordingly acquitted them under Section 235(1) Cr.P.C. 6. Learned Addl. Government Advocate submitting a written note of submission also argues criticizing the impugned judgment of the learned Addl.Sessions Judge. In a pedantic manner he puts forth the case of the prosecution quoting the evidence of the eye witnesses which suits the prosecution and accordingly argues that the learned trial Court misled him by not giving due weightage to such evidence, and unnecessarily heavily relied on minor contra¬dictions. In furtherance thereof he has referred to in his note of submission some citations. 7. Upon consideration of the aforesaid submission of learned Addl. Government advocate and perusal of the evidence on record together with the finding recorded by the trial Court, we find that the order of acquittal does not appear to be unrea¬sonable or illegal though a different view may be taken from the same set of evidence. A case is decided by a person discharging the job of a Judge. His individual perception of the matter is subject to criticism if it is under-standard as prescribed under law in appreciating the evidence or considering the statutory provision. Otherwise every person functioning as a Judge is entitled to his perception to be reflected in the judgment. We find that learned Addl. Sessions Judge did not commit any perver¬sity or illegality in considering the evidence on record. There¬fore, the self serving argument by the prosecution does not help it to convert an order of acquittal to an order of conviction and the reasons thereof are highlighted hereinafter. 8. It is apparent on the face of record and the evidence of P.Ws.1 to 4 and the I.Os. examined as P.Ws. There¬fore, the self serving argument by the prosecution does not help it to convert an order of acquittal to an order of conviction and the reasons thereof are highlighted hereinafter. 8. It is apparent on the face of record and the evidence of P.Ws.1 to 4 and the I.Os. examined as P.Ws. 10 and 11 that there was a mutual fight between the two groups at the square near the school and the Consolidation office. Therefore, the concept of existence of the offence under Section 149 I.P.C. goes automatically in case of a sudden mutual fight between two groups. (See the cases of State U.P. v. Jasoda Nandan Gupta and others; AIR 1974 S.C. 753 and Purna v. State of Rajasthan; AIR 1976 S.C. 912 ). Even if that aspect is side tracked and Section 149 I.P.C. is enforced, then also it appears from the evidence of P.Ws.1 to 4 in examination-in-chief that they have painted it as a case of assault by the accused on the prosecution party without the sem¬blance of mutual fight. Prosecution did not explain abut the injuries sustained by ten accused persons as per the exhibited documents. It is true that if one or two accused persons would have suffered superficial injuries, then prosecution was not bound to explain the same. But when the number of injured from both sides are almost equal and injury on each is not simple and superficial, prosecution can be blamed for being guilty of sup¬pression of facts. State prosecutes the case and the Public Prosecutor presents the case on behalf of the State and, there¬fore, it is the duty of the prosecution to place the truth before the Court for proper adjudication. For such reason for decades the Courts have never appreciated suppression of facts by the prosecution and heavily commented as against that. 9. P.Ws. 1 to 4 in their examination-in-chief though suppressed assault on the accused persons, in their cross-examination they admitted that in the mutual clash between the accused and prosecution party each of them (witnesses) could not notice who assaulted on whom and on what part of the body. Each of such witnesses stated that besides the 21 accused persons 10 to 15 more persons were there in the group of the accused persons and they were actively participating in the occurrence. Each of such witnesses stated that besides the 21 accused persons 10 to 15 more persons were there in the group of the accused persons and they were actively participating in the occurrence. When this is the state of affairs prosecution cannot criticize the order of acquittal when it is guilty of not for not bringing sufficient material on record to identify each of the accused for their mis did jointly or individually. 10. Evidence of P.Ws. 1 to 4 regarding the sword blow on the head of the deceased runs contrary to the medical opinion of P.W.6 inasmuch as according to P.W.6 the deceased suffered one incised wound of 3" X 1" X scalp deep found over vertex. In course of cross-examination of P.W.6 opined that “The weapon by which the external injury No.1 is caused might have been a sword with straight edge. The injury No.1 can be caused on the head when the head is erect either in a standing position or sitting position of the inured concerned. The injury will be deeper if the weapon is heavier like sword. If a person falls on the ground with face downwards he will sustain injuries on his face. My report, Ext.15 does not reveal any such injuries on the face of the deceased. The injury No.1 as found on the person of the deceased can be caused if a person falls with face upwards on the ground with sharp cutting substance or objects." The above quoted evidence of P.W.6 belies the evidence of P.Ws. 1 to 4 who stated on the occurrence of assault on the deceased. It was suggested to P.Ws. 1 and 3 that they are amongst the accused persons in the counter case. It has been admitted by P.W.2 in the cross-examination that he is an accused in the counter case. Similarly, P.W.10, the other eye witness to the occurrence has deposed about the occurrence in same fashion also was suggested that he is an accused in the counter case. The conduct of these witnesses show¬ing interestedness and over jealousness has diminished their veracity and the accused has taken advantage of that. Trial Court has followed the norms as provided in law for appreciating evi¬dence on the conspectus of whole case. He did not commit perver¬sity in recording the finding. Hence, the impugned judgment is not liable to be disturbed. Government Appeal is accordingly dismissed. Trial Court has followed the norms as provided in law for appreciating evi¬dence on the conspectus of whole case. He did not commit perver¬sity in recording the finding. Hence, the impugned judgment is not liable to be disturbed. Government Appeal is accordingly dismissed. Appeal dismissed.