T.C. Das, J.
1. The respondents Felanu Malakar, Haricharan Malakar, Babul Malakar, Dhano Malakar, Achyut Malakar and Jiban Malakar were tried in the Court of Assistant Sessions Judge, Barpeta in G. C. Case No. 493/68 Under Section 148/304 Part II and Section 323/34 of the IPC On trial, the learned Assistant Sessions Judge came to the conclusion that the prosecution failed to prove the guilt against the respondents beyond reasonable doubt and, therefore, they were held not guilty and were acquitted by the order dated' 16-5-1974.
2. The State has preferred this appeal against the aforesaid order of acquittal.
3. The prosecution case in brief is that on 6-6-1968 the respondents came in a body armed with deadly weapons to the farm house of Braja Kalita and Dhaia Kalita in village Barbukiya in order to assault them out, of grudge due to some land dispute. The respondents, as alleged by the prosecution, assaulted the injured persons as soon as they came out of the farm house with 'Tiyar'. 'Khukri', 'Jowar'. lathis' etc. causing several injuries on their bodies. The injured person were removed to Kamarkuchi Dispensary for treatment. The informant Sunenda Ram Kalita. PW 1, lodged an ejahar at the Nalbari Police Station. After completion of the investigation the police submitted charge-sheet aaainst the respondents and one another. The case was committed to the Court of Session for trial. The learned Assistant Sessions Judge framed charges against the respondents Under Sections 148/304 (II)/325/34 of the I.P.C. to which all the accused-respondenta pleaded not guilty. During the course of the trial, the prosecution examined as many as 8 (eight) witnesses in support of their case. The Police Officer, who investigated the case was, however, not examined on the plea that he was not available.
4. Though the plea of respondents was of simple denial, they further pleaded that the respondent Jiban Kalita has his land contiguous to Braja's land and on the day of occurrence he was ploughing in his land along wilh his son Guda Kalita, when he saw Dhajo, Brajo, Sayambhu, Deben and Suren cutting earth with hoes for construction of a path over the land of respondent Jiban Kalita. When the respondent Jiban Kalita protested, Braja gave a blow on his head and Suren also assaulted him on his leg with the handle of the hoes. At that time Guda Kalita also came to save his father. When he had a scuffle with Deben (since deceased), Braja made an attempt to give him a blow on the head of Guda Kalita with the hoe in his hand which fell on the head of Deben, who sustained a serious injury and subsequently died in the hospital about two days after the date of occurrence. The respondents further pleaded that Sayambhu also pierced a 'Tiyar' in the person of accused Dhano from his back and thereafter the scuffle between the parties ended. The occurrence of this scuffle and/or 'marpit' between the parties has not been denied by the parties. The learned trial Court on evidence on record and on considering the respective case of the prosecution and defence acquitted all the accused persons (respondents herein) as against which this appeal has been preferred by the State, as stated above.
5. This being an appeal against acquittal, we should be very slow to reverse the findings of the learned trial court, if the same is neither perverse nor unreasonable. However, if oh materials and evidence on record we find that the order of acquittal was neither based on materials on record, nor it was proper and reasonable to return the verdict of innocence, probably in that event we would be lustified to alter the verdict of the trial Court. To appreciate the evidence and the order of acquittal passed by the learned trial Court, we shall have to deal with the prosecution case and the defence. Though we have gone through the judgment of the learned Assistant Sessions Judge, very carefully, yet we further propose to scan the evidence of the prosecution witnesses and the defence to consider ourselves as to whether the order of acquittal was justified.
6. P.W. 1 Sunanda Ram Kalita, was the informant who lodged the ejahar in the Police Station at Nalbari. The said witness has stated that he came from his farm house situated at a distance of about half-a-mile from the place of occurrence and on arrival at the place of occurrence, he found one Uulu and Upen, P.W. 2 at the place of occurrence. P.W. 1 found the injured person lying on the ground and they could not speak anything till they were removed to the Kamarkuchi Dispensary. Therefore, the informant had no first-hand-knowledge of the occurrence expect what was stated to him by P.W. 2. Upendra Nath Talukdar, P.W. 2, stated that he was told about the occurrence by one Pradip who was not examined by the prosecution. The learned trial Court rightly held that it was not possible for the informant to mention the name of the accused persons as he arrived at the place of occurrence after the scuffle,vas over. The prosecution failed to produce the Investigating Officer who could be the best available witness for the prosecution to clarify the position of the First Information Report and also about the deposition of the witnesses who were examined by him during the course of investigation. It may be observed here that the contradiction sought to be brought that the defence could not get the chance even to testify the same by putting those contradictions or omissions as the case may, to test the veracity of the witnesses. Haridas Risidas was examined as PW 5 whose house was situated at a distance of 12/25 Tars from the place of occurrence and on hearing Hulla he came to the place of occurrence and on his arrival, he saw 'Tiyar' lying there on the ground. He also said that Sayambhu picked up that 'Tiyar' and thrusted it towards accused Dhana. He was, however, declared hostile by the prosecution. In his evidence, the witness stated that the accused Jiban asked the complainant's party not to construct the path through his land over which an altercation took place in between the parties. He further stated that accused Dhana had to be carried from the place of occurrence by accused Felanu. From the evidence on record it is clear that the complainant's party constructed a path through the land of the accused Jiban, P.W. 4 Braja Kalita is one of the injured persons. The deceased Dhaja was his brother. This witness stated that the path was cut by the accused-persons on the day of occurrence. He further stated that the accused-respondent Jiban and his son Gada were ploughing in their field on the day of occurrence. As such, the question of cutting his path at the relevant time or prior to it does not arise. This fact is also clearly evidenced from the deposition of P.W. 7 Sayambhu Kalita. P.W. 6, Surendra Kalita, has clearly stated in his evidence that the disputed path was cut by the accused person a day earlier to the occurrence. If that is the position, one can conclude that on the day of occurrence the complainant's party took aggressive part on seeing that the path constructed by them through the land of accused-respondent Jiban was cut by the accused person on the previous day of the occurrence and they came to lake revenge while Jiban and his son were ploughing in the field. P.W. 4 Braja Kalita stated that he was assaulted by accused-respondent Jiban with a lathi and he fell down and became unconscious. P.W. 5 Haridas Risidas does not say anything about the assault by accused Jiban. According to P.W. 6, Surendra Nath Kalita, P.W. 4 Braja Kalita was assaulted by accused Jiban and thereafter by Felanu, Dhana and Achyut. In cross-examination he has stated that he did not see the assault on his father by other accused except the assault caused by accused Jiban, The learned trial Court' examined Police Diary and the Court found that before the Investigation Officer, P.W. 6 had stated that P.. W. 4 was assaulted by Jiban with Kutti and not with Lathi. This witness though stated about the assault on P.W. 4, it is found in the evidence that he became unconscious after he was assaulted. Therefore, it was not possible for him to see the assault on P.W. 4. P.W. 7, Sayambhu Kalita also stated that as he was assaulted, he became senseless when he went to protect P.W. 4. P.W. 8, Gajendra Kalita, had no knowledge as stated by him who assaulted whom. He further stated that while he went to protect Deben, he saw Guda assaulting Deben. But Guda is not the accused in this case. This witness also became senseless as soon as he was assaulted by Hari Charan and he regained his senses only at Kamarkuchi Dispensary. He also could not say definitely as to who assaulted whom.
7. The contradictory and discrepant statement of the P. Ws. 6 and 7 throws a shadow of doubt as to whether P.W. 7 was injured by accused Haricharan. P.W. 8 also could not say as to who assaulted whom except the Hssault on him by Guda who is not the accused in this case. P.W. 8 further stated that Deven was surrounded by accused Felanu, Haricharan, Guda, Jiban, Prasanna and Dhana. Accused Acnyut and Babul were not named by any of the P. Ws. to be present at the place of occurrence or in any manner taking part in the occurrence. However, P.W. 6 has stated the name of Achyut, but, as observed by the learned trial Court, this witness did not state before the Investigation Officer about the assault on Deben by this accused named by him in his deposition. It was the defence version that the cut injury sustained by Deben was due to the blow given by P.W. 8 aimed at Guda, son of Jiban, who came to protect his lather. Dr. H. Deka, who performed the postmortem examination on the body of Deben found one cut wound 5' x ” scalp deep, at the frontal region of the head. The injury was ante-mortem and caused by sharp weapon. The nature of the injury, as found by the doctor, might be caused by a weapon like hoe,
8. The learned trial Court on reading the evidence and on plea of defence came to the conclusion that the complainant party wanted to construct a ' part on the land of accused Jiban by committing trespass into the land when the accused persons came to the place of occurrence in exercise of tneir lawful right and, as such, they were not the members of unlawful assembly as they came to protect the property from the trespasser in order to prevent commission of any mischief on the land. It was further observed that the scuffle took place between the two parties and a mutual marpit ensued as a result of which both the parties sustainsd injuries. Deben sustained serious injuries and subsequently succumbed to the injuries. From the evidence of P.W. 3 Dr. H. Deka and the medical report (Exts. A, B and C) it appears that the accused Dhana, Prasana and Haricharan also sustained injuries in the free fight. On going through the evidence of the witnesses it is amply clear that the ingredients of Section 34 of the IPC were very much missing. It may be noted here that there was a cross-case which was numbered as G. Rule 491/68 Under Sections 147/324/325/326 I.P.C. initiated by the accused party against the complainant's party for the same occurrence which ended in acquittal of the accused-persons in that case. It is strange as to why the witnesses of the prosecution became ignorant about the iniurijes sustained by some of the accused-party in the scuffle, and more so it is evident from the medical reports Marked Exts. A. B and C as referred to above. There is no explanation by the prosecution about the injuries sustained by the accused persons. On a perusal of Ext. A it appears that the injuries sustained by accused Dhono were all-grievous in nature. Non-explanation of injuries on the accused-persons by the prosecution can be regarded either voluntary suppression of facts or to take a false plea of innocence by the prosecution as to the occurrence. This should be discarded throughly. Incidentally, we may refer to a decision of the Supreme Court reported in : 1979CriLJ888 (Jagdish v. State of Rajasthan) wherein their Lordships held (at p. 888 of Cri. L. J.):—
It is true that where serious injuries are found on the person of the accused, as a principle of appreciation of evidence, it becomes obligatory on the prosecution to explain the injuries, so as to satisfy the Court as to the circumstances under which the occurrence originated. But before this obligation is placed on the prosecution, two conditions must be satisfied,
1. That the injuries on the person of the accused must be very serious and severe and not superficial;
2. that it must be shown that these injuries must have been caused at the time of the occurrence in question. In the instant case, none of these conditions are satisfied (sic?). We need not further repeat the evidence of prosecution witnesses. Suffice it to say that on scanning the evidence we can safely come to the conclusion that the trial Court has not committed any error in its findings to return the verdict of acquittal. The Supreme Court has laid down the principle in very many cases that in an appeal against acquittal, if two views are reasonable and the view taken by the trial Court was reasonably possible on consideration of the facts and on perusal of the entire evidence as to the probabilities of the case, the High Court would not be justified in interfering with the order of acquittal on the ground that the other view is also possibly reasonable.
9. We may refer the decision of the Supreme Court reported in : 1979CriLJ875 (Arunachalam v. P.S. R. Setharathnam) wherein their Lordships of the Supreme Court have laid down the law in the matter of appeal against acquittal, after taking into consideration a number of earlier decisions of the Supreme Court in the following term (at p. 877 of Cri. L. J.):—
In dealing with an appeal against acquittal, the Court will, naturally, keep in mind the presumption of innocence in favour of the accused, reinforced as may be, by the judgment of acquittal. But also, the Court will not abjure its duty to prevent violent miscarriage of justice by hesitating to interfere where interference is imperative. Where the acquittal is based on irrelevant ground, or where the High Court allows itself to be deflected, by red herrings drawn across the track, or where the evidence accepted by the trial Court is rejected by the High Court after a perfunctory consideration, or where the baneful approach of the High Court has resulted in vital and crucial evidence being ignored, or for any such adequate reason, this Court may feel obliged to step in to secure the interests of justice, to appease the judicial conscience, as it were.
10. We have gone through the judgment of the trial Court very carefully and also we ourselves have scanned the evidence of the witnesses and bearing in mind the mandate of their Lordships of the Supreme Co Article we are of the opinion that there is nothing to interfere with the judgment and order of the learned trial Court. Accordingly, we affirm the judgment of the learned trial Court acquitting the respondents, and dismiss the Government Criminal Appeal.
11. In the result, the appeal is dismissed.
D. Pathak, C.J. (Acting)
12. I agree.