S.K. Ray, J.
1. The two petitioners were convicted under Section 395, Indian Penal Code, by Sri K. S. Misra, Assistant Sessions Judge, Balasore, in Sessions Trial No. 40/3/6 of 1964-65. Petitioner No. 1 was sentenced to R. I. for two years and petitioner No. 2 to undergo R. I. for four years. On appeal, the conviction and sentence of the petitioners were maintained by Sri G. K. Misra, Sessions Judge, Balasore, in Criminal Appeal No. 129/65 by his judgment dated 1-8-66.
2. There were 16 accused persons put on trial of whom only these two petitioners were convicted and sentenced as aforesaid.
3. The prosecution case is that on the night of 18t'h February 1964, or in the small hours of the morning of 19th February, the two petitioners and a number of others entered the Khamar house of P. W. 1 in their attempt to loot the paddy stocked on the threshing floor. This dacoity was a pre-planned one and P. W. 2, the informant, being aware of this plan which had been decided in a meeting on the evening previous to the day of occurrence, informed the police party and brought them to the place of occurrence in time to prevent the accused persons from successfully committing the offence of dacoity.
The further story of the prosecution is that while the accused persons were actually on the threshing floor of P. W. 1 and were engaged in the act of filling up the gunny bags with paddy, P. W. 2 arrived there suddenly accompanied by the police patrol party consisting of P. W. 13, the Havildar and P. W. 14, an Assistant Sub-Inspector of Police. P. W. 13 who was armed with a gun fired a shot which chopped off a number of fingers of petitioner 1. F. I. R. was lodged on 19-2-64 at Bensada police station which is at a distance of about two miles from the place of occurrence. The F. I. R. contains only the names of these two petitioners and there was no mention of names of the other accused persons as they could not be identified.
4. The defence case is that there is a swamp near P. W. 1's Khala which is an ideal place for bird snatching and other kinds of hunting. This P. W. 13 onthe alleged date of occurrence was near the swamp for the purpose of hunting. He fired a shot and accidentally injured petitioner 1, and in order to save himself from the consequences of his act, if the truth were known, he with the help of P. W. 1 who is on inimical terms with the petitioners, has foisted this false case.
5. Learned counsel for the petitioners urged before me a number of circumstances appearing in the evidence which have not been considered by the lower appellate court. He also commented that the final court-of-fact has not scanned the evidence of the prosecution witnesses which he should have done, and relying on the evidence of the doctor, P. W. 8, in regard to matters which fall properly within the province of the ballistic expert (P W. 4), and which was in conflict with the evidence of the latter, assessed the evidence of other prosecution witnesses and discarded the evidence of the two defence witnesses without discussing it on merit.
He has also pointed out some errors of record committed by the lower appellate court, one of such errors being that while the evidence on record showed that P. W. 1 was very much in the vortex of the party faction in the village. the learned Sessions Judge says that there is no evidence of P. W. 1 being involved in any such party faction, and in this respect, he relied upon the evidence of P. Ws. 2, 10, and the I. O., P. W. 17.
6. There are also many telling circumstances appearing in the case which have not been considered and their probative value and significance weighed; and their impact on the assessment of the prosecution evidence and its story has not been judged by the lower appellate court. Some of those circumstances are that the blood-stained earth was seized from the paddy field five cubits away to the south of the Khala and no place in the Khala itself was stained with blood. This is a statement of the I. O. himself If that is so, the evidence of the prosecution witnesses as to the place of occurrence where the shooting took place has to be scanned in the light of this.
The other circumstance which falls for consideration is that when P. W. 2's story of his knowledge of the pre-planned conspiracy to commit the dacoity is disbelieved, then the other part of his story that he timely informed the police party so as to lead them to the place of occurrence in time, considered in the light of his evidence would be untrue. It is also admitted in the prosecution evidence that there is a swamp near the threshing floor of P. W. 1 which is a place ideal for shooting as would appear from the evidence oi P. W. 2 and others. This is a circumst-ance which has considerable bearing on the defence story.
7. The gun used in the case is a Police rifle and the doctor's evidence is that the injuries on petitioner 1 were possible if the shot was fired within a range of 5' and not possible if the range was beyond ten feet. This evidence has been used in cor-roboration of the prosecution case that the shooting took place in the khala while petitioner No. 1 was in the act of committing dacoity. This evidence, if true would certainly discredit the defence story of accidental shooting while P. W. 13 was on a hunting trip at the swamp and it runs counter to the evidence of P. W. 4 wno says that the effective range of the gun is 75 yards and its extreme range is 120 yards and beyond that the speed will be zero.
In view of this evidence of the ballistic expert the doctor's evidence referred to above cannot be explained except that he has exposed his ignorance in such matters. This fact of the evidence of the doctor is not one which appertains to his subject in regard to which he is considered to be an expert. The apparent conflict between the evidence of P. W. 4, the ballistic expert and P. W. 8 the doctor, has been missed by the lower appellate Court, because of the misconstruction and misreading of the evidence of the former. The lower appellate court holds P. W. 4 as saying that the bullet would be effective between 75 to 120 yards which in fact is not so.
The other pregnant circumstances which have been disclosed in the evidence are that there were no rice bags in the khala. The dagger which is said to have been held by petitioner 1 when he was fired upon and which must have dropped on the threshing floor where shooting took place was not seized and no explanation is given for its non-seizure. It is also in evidence that the blood-stained earth which was seized was not sent for chemical examination.
One other circumstance on which stress was laid is the time of examination of petitioner No. 1 by the doctor. The doctor's certificate, Ext, 5 bears the time to be 9-20 P. M. whereas in his deposition he says that he examined the injured at 9.30 a.m. A lot of argument was made on this in pressing forward the defence point of view that the entire case is a concocted one to save the skin of P. W. 13, the Havildar.
8. On a perusal of the judgment of the lower appellate court the first impression gained is that it is unsatisfactory and superficial, and I cannot, understand how so many glaring factors in the case failed to attract his notice and were omitted from his judicial consideration and how the errors of record were committed by him. The misreading of the evi-dence of the ballistic expert and non-consideration of the many glaring circumstances appearing in the case as detailed above, each one of which has a crucial bearing on the prosecution case or the defence story, are proofs enough of the superficial dealing of the case by the lower appellate court.
In criminal cases of such magnitude, where the drama of commission of offence and its detection has been played over a wide range of background of preplanning and preparation of one evening followed by perpetration of the crime during same night or the early hours of the next day and lodging of information at the police station about two miles away and commencement of police investigation on the subsequent morning culminating in a charge-sheet, and is packed with currents and cross-currents of motives and emotions, and engulfing the entire drama in an atmosphere of party feud, the sure test of truth, would be the mute circumstances which never lie. When, as in this case, accused persons are police officers, the character and conduct of police investigation should be subjected to keen judicial scrutiny. If such investigation is proved mala fide, as a result of which some obvious facts have not been proved or brought out which might have given corroboration to the defence case, the duty of the Court is to direct an acquittal. If any authority is required, it is to be found in AIR 1956 SC 526.
9. In the circumstances, it is impossible to maintain the judgment of the appellate court which must accordingly be set aside and the case sent back to him for rehearing of the appeal. The appellate court will bear in mind all the circumstances enumerated above and consider their impact both on the prosecution case and the defence version. He must read the evidence carefully and must utilise his common sense and not swallow the evidence of the doctor who says that a rifle can cause injury from a distance of five feet and not from a distance of 10 feet.
The Revision is accordingly allowed,the judgment of the conviction and sentence of the lower appellate court is setaside and he is directed to rehear the appeal keeping in mind the observationsmade above.