PRADIP MOHANTY, J & B.K.NAYAK, J. CRA. NO.109 OF 1998 (Decided on 10.03.2011) RAGHUNATH @ ABHAYA @ ABHI JENA & ORS. …. ….. Appellants. .Vrs. STATE OF ORISSA …. ….. Respondent. For Appellants - Miss Deepali Mohapatra. For Respondent - Mr. S.K.Nayak, Addl. Govt. Advocate B.K.NAYAK, J. The common judgment dated 12.05.1998 passed by the learned Additional Sessions Judge, Jajpur in S.T. No.80/10 of 1997 and S.T. No.384 of 1997 convicting accused-appellant no.1-Raghunath @ Abhaya @ Abhi Jena, appellant no.3- Kulamani Jena, appellant no.9-Santosh Jena and appellant no. 12-Ananta @ Kumar Jena under Section 302 of the I.P.C. read with Section 149 of the I.P.C. and sentencing them to imprisonment for life and convicting the rest of the accused-appellants under Section 324 read with Section 149 of the I.P.C. for causing hurt to P.Ws.9 and 16, namely, Golakha Jena and Bharat Jena and sentencing them to undergo R.I. for one year has been challenged in this appeal. 2. The prosecution case is that on 16.07.1996 P.W.9-Golakha Jena, P.W.16-Bharat Jena and the deceased-Dibakar Jena while at work in the coal-briquette factory of one Nanda Kishore Mohanty, heard an uproar in the nearby Hat (Market). They came out to see what was the uproar for and found that the accused persons being armed with various weapons like, Tenta, Sword, Farsha, Thenga etc. were rushing towards them. Apprehended danger to their life while they were trying to escape, accused- Ananta @ Kumar Jena dealt a sword blow to Dibakar Jena and accused-Raghu Jena dealt a farsha blow to Bharat Jena, who having received the blow ran away from the spot to save his life. When Golakha Jena came to the rescue of his brother Dibakar, accused-Kumar Jena dealt a blow to him by sword, as a result of which Golakha Jena’s finger was cut. The wife of Dibakar having seen the occurrence raised cry, but accused-Kulamani gave her a push for which she fell down. Having seen that rest of the accused persons have surrounded them, Golakha Jena ran away from the spot. In order to save himself Dibakar snatched away the sword from the hand of Kumar Jena and dealt two blows to him. At that time accused-Madhab Jena, Raghunath Jena, Arta Jena, Santosh Jena, Basanta @ Basudeb Jena and Kulamni Jena surrounded Dibakar and assaulted him by dealing murderous blows. While Dibakar was lying on the ground injured, the villagers came to the spot whereupon the accused persons left. Dibakar and Golakha were removed to the Hospital and later on taken to the S.C.B. Medical College, Cuttack, but ultimately Dibakar succumbed to his injuries. Soon after the occurrence F.I.R. was lodged by P.W.1-Kamini Jena, wife of Dibakar, which was registered under Sections 147/148/307 of the I.P.C. along with other sections read with Section 149 of the I.P.C. After Dibakar succumbed to his injuries, the case turned to one under Section 302 of the I.P.C. During the course of investigation, injury reports in respect of the deceased and other injured persons were obtained; postmortem examination on the dead body of Dibakar was conducted. The I.O., apart from examining witnesses, also effected seizures of several articles and ultimately submitted charge-sheet. The accused persons were, however, committed to court of Sessions in two batches giving rise to two Sessions Cases, which were clubbed and tried together. 3. The defence plea is one of denial of the prosecution case. Further, in their statements under Section 313, Cr.P.C. the accused persons have taken the plea that there was prior enmity between them on one hand and the informant’s party on the other and that on the date of occurrence while Bira Jena was going for his work, on the way Dibakar Jena and Golakha Jena assaulted him. Hearing the cries of Bira Jena, accused- Ananta @ Kumar Jena came to the spot but he was chased by Golakha and Dibakar and assaulted by Dibakar by means of a sword. This incident created a hue and cry and the supporters of both the groups assembled on the spot and there was fighting between them during the course of which some of the accused persons sustained injuries and were medically examined. 4. During trial, the prosecution examined as many as 17 witnesses to prove the charges against the accused persons. P.Ws.1 to 7 are said to be eye-witnesses to the occurrence, P.W.8 is the scribe of the F.I.R., P.W.9 and P.W.16 are injured eye- witnesses, P.W.10 is the post occurrence witness, P.W.11 is the doctor, who conducted autopsy over the dead body of the deceased, P.W.12 is the Asst. Surgeon, P.W.13 is the constable, who carried the dead body of deceased-Dibakar for postmortem examination, P.W.14 is an A.S.I of Mangalabag Police Station, who registered U.D.Case on getting information about the death of Dibakar at the S.C.B. Medical College, Cuttack, P.W.15 is the Investigating Officer and P.W.17 is the person in whose factory the deceased-Dibakar and his brothers were working immediately before the occurrence. From the side of the defence, accused-Bira Kishore Jena was examined as the only defence witness. 5. On consideration of the evidence on record, the trial court found appellants, Raghunath @ Abhaya @ Abhi Jena, Kulamani Jena, Santosh Jena and Ananta @ Kumar Jena guilty under Section 302 read with Section 149 of the I.P.C. for committing murder of the deceased. The trial court found the rest of the accused-appellants not guilty of offence under Section 302 of the I.P.C., but found them guilty under Section 324 read with Section 149 of the I.P.C. for causing hurt to P.W.9-Golakha Jena and P.W.16- Bharat Jena. 6. In assailing the impugned judgment the learned counsel for the appellants contends that there is a counter case arising out of the same occurrence where some of the accused persons sustained injuries and that the prosecution having failed to explain the injuries sustained by the accused persons, the prosecution must be held guilty of suppression of truth and the genesis of prosecution case. It is further contended that the prosecution witnesses have deliberately resorted to falsehood and their evidence is full of contradictions and inconsistencies which should not be believed in view of their interestedness and enmity with the appellants. Learned Additional Government Advocate urges with vehemence that the injuries sustained by accused-Ananta @ Kumar Jena being minor in nature it is not incumbent 2 on the prosecution to explain such injuries, more particularly when the prosecution evidence clearly and cogently proves the guilt of the appellants. It is further submitted by him that contradictions and inconsistencies in the evidence of the prosecution witnesses, if any, are very minor and insignificant in nature and the same do not affect the credibility of the witnesses with regard to the material aspect of the prosecution case. 7. We have perused the record and gone through the evidence carefully. As has been seen earlier, the defence plea was that there was prior enmity between the accused persons on the one hand and the prosecution party on the other and that on the date of occurrence while accused-Bira Kishore Jena was going for work, on the way the deceased-Dibakar Jena and Golakha Jena (P.W.9) assaulted him and hearing his cries accused-Ananta @ Kumar Jena came to the spot but he was chased by Golakha and Dibakar and assaulted by Dibakar by means of a sword. The incident created hue and cry and the supporters of both the groups assembled on the spot and there was fighting between them in which some of the accused persons were assaulted by the prosecution party members and received serious injuries. The prosecution case is that while the deceased, his brother-Golakha Jena (P.W.9) and Bharat Jena (P.W.16) were working in the coal-briquette factory of P.W.17-Nanda Kishore Mohanty, hearing uproar from the side of nearby market they came out and saw the accused persons coming towards them being armed with weapons and while they were trying to run away the accused persons assaulted them and in the process the deceased was killed. 8. Almost all the eyewitnesses have stated in a parrot like manner that accused Ananta dealt a blow to the deceased by sword and when P.W.9 came to the rescue of the deceased he was assaulted by Ananta and Raghu by sword and farsa whereafter he ran away from the spot. It is further stated by the witnesses that after the deceased fell down all the accused persons assaulted him by different weapons, though there is some inconsistency about the particular weapon used by each of the accused. Although, it is mentioned in the F.I.R. (Ext.2) that after the first blow was given by accused-Ananta by sword, the deceased snatched away the sword from Ananta and dealt two blows to him by that sword, none of the P.Ws. including the informant testified to that effect. There is also no mention in the F.I.R. as to how Ananta again got possession of a sword to further assault the deceased. It is to be seen whether the eyewitnesses are to be believed when they have not spoken to a material aspect of the prosecution case described in the F.I.R. 9. F.I.R. was lodged by P.W.1, the wife of deceased-Dibakar Jena. As per evidence of P.W.4, who is the brother of P.W.17, the F.I.R. was scribed by one Ranjan Kumar Behera according to the instruction of P.W.1 and the same was read over and explained to P.W.1, who put her L.T.I. on the report. P.W.4 has further testified that he identified the L.T.I. of P.W.1 as an attesting witness. He proved the F.I.R-Ext-2. It is also stated by him that the F.I.R. was scribed and lodged after injured-Dibakar Jena was removed to the Hospital where he subsequently succumbed to the injuries. P.W.1, however, in her cross-examination stated that she lodged the report at 1.00 P.M. on the date of occurrence, but the said report was not read over to her. Contrary to what P.W.1 stated, the I.O. (P.W.15) in his evidence stated that P.W.1 lodged the F.I.R. at 9.30 A.M. Although initially trying to plead ignorance, in paragraph-11 of his cross-examination the I.O. has admitted that on the date of registration of present case he also registered P.S. Case No.44 of 1996 giving rise to G.R. Case No.659 of 1996 on the basis of F.I.R. lodged by accused-Bira Kishora Jena. He further admits that in that case accused- 3 Basudeb Jena and Ananta @ Kumar Jena were injured and he issued requisition for their medical examination. It is further admitted by him that both the cases arise out of the same transaction and both sides were injured in course of the incident. Accused-Bira Kishore Jena has been examined as D.W.1 and has reiterated the defence plea in his evidence and has admitted that several people from both the sides were injured in the occurrence which was initiated by the deceased while he (D.W.1) was going to his work. It is also stated by him that starting from 1985 Nanda Kishore Mohanty (P.W.17) and the prosecution party members have filed 4 to 5 cases against the accused persons. Certified copy of the F.I.R. in the counter case lodged by D.W.1 has been proved as Ext.A. In the said F.I.R., 14 accused persons have been named including Dibakar Jena (deceased) and the present P.Ws.7, 9, 10 and 16. Charge-sheet against all the 14 accused persons have been filed, certified copy whereof has been proved as Ext.C. The present appellant no.12-Ananta @ Kumar Jena was medically examined on police requisition and the injury report, Ext.D reveals that he sustained two incised injuries on face and back, one bruise and one fracture. The incised injuries were caused by sharp cutting weapon. Though the incised injuries and the bruise were simple in nature, the fracture was a grievous one inflicted by blunt weapon. Accused-Basudev Jena was also medically examined on police requisition in the counter case and his injury report, Ext. E reveals that he has also sustained one laceration on the parietal region of the head and three other bruises on his arm, back and leg, though the injuries were simple in nature. 10. With regard to the previous enmity P.W.4, who is the brother of P.W.17, has admitted that in the year 1995 he filed a written report against the accused persons, though he pleaded ignorance, if the said G.R. Case No.1465 of 1995 was still pending trial. P.W.9 has admitted in his cross-examination that on the date of occurrence of the present case, the accused persons have filed a counter case against him and others which was pending trial. Although most of the material witnesses for the prosecution were given suggestions that they were accused persons in some previous G.R. Case and also second party members in Section 107 proceeding, some of them pleaded ignorance and some others denied the suggestion. 11. The prosecution story as revealed from the F.I.R. and spoken by the eyewitnesses except P.W.7 remains confined to assault made by the accused persons on the deceased, Golakha Jena (P.W.9) and Bharat Jena (P.W.16). There is no allegation nor there is any evidence adduced by the prosecution that any other person or witness belonging to the prosecution party members was assaulted and injured. However, the evidence of P.W.7-Natabar Jena reveals that he and his brother-Govinda Jena (not examined) were assaulted and injured by accused-Basanta @ Basudev Jena and Madha @ Madhav Jena. P.W.12 is the doctor, who on the date of the occurrence examined P.W.7 on police requisition and found three bruises on his person and accordingly prepared his report, Ext.6. On the same day, P.W.12 also examined on police requisition Govinda Jena, the brother of P.W.7 and found five bruises on different parts of his body. The injuries sustained by P.W.7 and first three injuries sustained by Govinda Jena were simple in nature but in respect to injury nos. (iv) and (v) of Govinda Jena he referred the injured for x-ray examination and opinion. No x-ray opinion with regard to the nature of the said two injuries is available. Though, prosecution claimed and also led oral evidence to the effect that P.W.16-Bharat Jena received a solitary farsa blow from accused-Raghu Jena and that P.W.9-Golakha Jena received one cut injury on his right thumb being assaulted by accused-Ananta with sword and 2 to 3 other blows from accused-Santosh and was treated in the Hospital, no injury report with respect to 4 their injuries are forthcoming. There is no explanation from the side of the prosecution as to why the injury report in respect of P.Ws.9 and 16, which would have been the best evidence, have not been proved. On the other hand, there is also no explanation as to why none of the occurrence witnesses have spoken about some of the accused persons assaulting and injuring P.W.7-Natabar Jena and his brother-Govinda Jena. This leads us to believe that the prosecution has not come up with a true case. 12. As has been seen earlier accused-Ananta @ Kumar Jena sustained two incised injuries, one bruise and one grievous injury, i.e., a fracture and accused-Basudev Jena sustained one laceration on his head and three other bruises on other parts of the body in course of occurrence. The prosecution witnesses have, however, completely suppressed the fact of receipt of injuries by these two accused persons during the course of occurrence. When they were suggested during cross-examination, they denied to have seen accused-Ananta having received the injuries during the course of occurrence. It was stated in the F.I.R. that Ananta Jena dealt a blow by the sword to the deceased and the latter snatched away the sword from Ananta @ Kumar Jena and dealt two blows to him. This statement was apparently inserted in the F.I.R deliberately in order to explain two incised injuries sustained by accused-Ananta @ Kumar Jena. However, during the course of evidence none of the prosecution witnesses have spoken about the deceased having snatched away the sword from Ananta and dealing him two blows by the same. Even they have not admitted to have made any statement to this effect before the I.O. The F.I.R. being not a substantive piece of evidence and the prosecution witnesses having remained totally silent about the assault on accused- Ananta and Basudev and even having denied to have seen any injury on their person, it can be safely concluded that not only the prosecution has failed to explain the injuries sustained by two of the accused persons but it has deliberately suppressed the same. 13. The learned counsel for the appellants has drawn the attention of this Court to the decision of the Apex Court reported in AIR 1976 (SC) 2263; Lakshmi Singh and others etc. v. State of Bihar wherein it is held as follows : “It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences: (1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one.” 5 Similar views have also been expressed in the cases of Kambhu Das and another v. State of Orissa; 1986 (I) OLR 275, Krushna Podha and three others v. State of orissa; (1992) 5 OCR 529 and Babu Ram and others v. State of Punjab; (2008) 3 SCC 709. 14. In the instant case, when it is found that two of the appellants received several injuries including incised injury and fracture which have not been explained by the prosecution, it is difficult for the Court to rely on the ocular evidence of the prosecution witnesses, particularly when all the eyewitnesses have lied by stating that they did not see any injury on the person of those accused. True, there may be cases where the non- explanation of injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial in nature or where the evidence is so clear and cogent, so independent and disinterested and so probable and credit-worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. 15. It has been seen earlier that there is material discrepancy in the evidence of the informant (P.W.1) and that of the I.O. (P.W.15) about the time of lodging of F.I.R. (Ext.2). P.W.10, who had himself taken the deceased to Cuttack hospital has stated in his evidence that on their way to Cuttack hospital they came to the Police Station where Kailash Jena (P.W.3) orally reported the incident to the I.O. and that they also showed the deceased, who was then in a fit state to talk. It is not understood as to why the oral report of P.W.3 which was lodged at the first instance was not recorded and registered and why the I.O. did not take the statement of the deceased, who was fit to speak. This leads us to believe that ignoring the report of P.W.3, the present F.I.R. (Ext.2) was prepared after due deliberation only with motive to suppress the true facts and project an embellished version. 16. Considering the evidence led from the side of the defence coupled with the non- explanation of the injuries of two of the appellants by the prosecution and the suspicious nature of the F.I.R. we are of the view that the prosecution has suppressed the genesis of the prosecution case and the defence plea appears to be probable. We, therefore, hold that the prosecution has failed to prove the guilt of the appellants beyond reasonable doubt. The appellants are, therefore, entitled to the benefit of such doubt. 17. The appeal is accordingly allowed, the conviction and sentences passed on the appellants by the trial court are set aside and they are acquitted of the charges. Appeal allowed. 6