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State Vs. Sashibhusan Harichandan and anr. - Court Judgment

LegalCrystal Citation
CourtOrissa High Court
Decided On
Reported in28(1962)CLT523; 1963CriLJ550
RespondentSashibhusan Harichandan and anr.
Cases ReferredIn Nisar Ali v. State of U.P.
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....g.k. misra, j.1.out of 17 appellants, accused sashibhusan harichandan and hari martha have been convicted under section 302 indian penal code and sentenced to death. all the 17 appellants have been convicted under section 148 indian penal code and sentenced to r.i. for one year each. all other appellants excepting sashibhusan harichandan and hari martha have also been convicted under section 304/149 indian penal code and sentenced to r.i. for five years each, the sentences to run concurrently. accused no. 18 parsuram harichandan has been acquitted of all charges.2. the prosecution case is that in village go-dijhar there are two bustis - purunasahi and nuasahi. in between the two sahis there is a tank called jharia tank. out of the 18 accused persons, 4 belong to nuasahi and the rest.....

G.K. Misra, J.

1.Out of 17 appellants, accused Sashibhusan Harichandan and Hari Martha have been convicted under Section 302 Indian Penal Code and sentenced to death. All the 17 appellants have been convicted under Section 148 Indian Penal Code and sentenced to R.I. for one year each. All other appellants excepting Sashibhusan Harichandan and Hari Martha have also been convicted under Section 304/149 Indian Penal Code and sentenced to R.I. for five years each, the sentences to run concurrently. Accused No. 18 Parsuram Harichandan has been acquitted of all charges.

2. The prosecution case is that in village Go-dijhar there are two Bustis - Purunasahi and Nuasahi. In between the two Sahis there is a tank called Jharia Tank. Out of the 18 accused persons, 4 belong to Nuasahi and the rest belong to Purunasahi. The admitted case of both the parties is that at about noon on the date of occurrence (5-11-61) there was mutual assault between the party of the accused persons and that of the Barada family of Nuasahi, In that fight Dinaban-dhu Barada was severely assaulted and he died about one hour after the noon incident. Deceased Banchhanidhi' is the nephew of the deceased Dina-bandhu. The prosecution case is that Banchhanidhi and his son Dusasan (P.W. 1) had been to the jungle to uproot black-gram crop which they bad raised. They returned home direct from the jungle where they were working throughout the day about one ghari before sunset.

On their arrival at home the widow of Banchhanidhi (P.W. 4) informed them the fact of assault at the Jharia Tank in which Dinabandhu died. Dusasan immediately went to the house of Dinabandhu to see him. Shortly after, Banchhanidhi also went to the house of Dinabandhu. On the Danda Banchhanidhi shouted 'Salas had assaulted an old man to death'. Immediately after the accused persons with lathis in hands came running towards Banchhanidhi. Banchhanidhi went away towards the land of Bhagaban Rout. He was overpowered and accused Hari Martha gave a lathi blow on his head and accused Sashibhusan gave another lathi blow. Banchhanidhi fell down with severe bleeding injuries on his head. After these two strokes were given, Parsuram (accused No. 18) gave direction from under a tamarind tree asking the other accused persons to do away Banchhanidhi to death. Accused Dambaru Paikrai, Trinath Rana, Lochan Martha, Bachha Martha and Kasi Behera gave pokings with lathis on different parts of the body of Banchhanidhi and trampled over his body in accordance with the direction of Parsuram. Soon after, the Daffadar (P.W. 8) and two choukidars arrived at the spot, whereupon the accused persons fled away.

P.W. 1 and P.W. 4 went to the spot of assault and found Banchhanidhi almost in dying condition. He was carried to a choura in the Danda of Dinabandhu's house, some water was poured into his mouth, but it did not pass down the throat. After some first aid was given to Banchhanidhi, he was carried inside the house. The assault took place at about 5 p.m. and Banchhanidhi died in his house at 8 p.m. In connection with the noon incident wherein Dinabandhu died, persons had been deputed to the Banpur P.S. for lodging F.I.R. As they expected that the Sub-Inspector would come to the spot, no other person was deputed to lodge F.I.R. as to the death of Banchhanidhi. F.I.R. was lodged at 5 A.M. on 6-11-61 before the Sub-Inspector in the village.

3. In their statements under Section 342 Criminal Procedure Code some of the accused persons) took the plea of alibi and the rest did not present any specific case regarding this occurrence. It is manifest from their cross-examination of the prosecution witnesses that the defence case is that there was absolutely no occurrence inside the village Nuasahi at 5 P.M. Banchhanidhi and his son P.W. 1 were both members of the unlawful assembly in the noon-incident of Jharia Tank. in the riot Banchhanidhi might have got the fatal blows of which the defence is not sure. In the F.I.R. (Ext. H) filed by Rankanath Naik on 6-11-61 the fact that Banchhanidhi and his son Dusasan were present at the tank was clearly mentioned. Parsuram, Sashibhushan and some other took the plea of alibi.

4. P.W. 13 the Medical Officer of Banpur Hospital conducted the post mortem examination and found the following injuries:

1. Lacerated injury over the occipital region 2' x1/2' skull-skin-deep, with a depressed fracture.

2. Lacerated injury on the right side of the forehead 3' x 1' x skull-skin-deep. There is irregular depressed fracture on the right parietal and frontal bone, with crack fracture of 3' long. The area of depressed fracture is 11/2' x 1'. There is a crack fracture about 3' long over occipital region extending towards right parietal bone. Surrounding all those injuries, there are effusions of blood which have clotted up and there is a severe hematoma under the scalp. There are evidences of dural haemorrhage. The dura is torn off. The small fragments of bones at the site of fracture in injury No. 1 have pierced into the brain matter.

According to him, the injuries were homicidal and occurred within 48 to 72 hours of the postmortem examination. A fantastic suggestion was made in the cross-examination that if a man falls on a heap of laterite stones, injury No. 2 could be caused and that by one fall the two head injuries could be caused by striking of the affected parts of the head against two stones placed in an irregular manner. The Doctor answered the suggestion in the affirmative. It is no party's case that deceased Banchhanidhi fell on two stones thus situate. Even though the doctor answered that such injuries were possible, it cannot be held that death was thus caused. Mr. Mohapatra for the appellants did not rely upon this suggestion. The position cannot therefore be disputed that death was caused by the two fatal injuries on the head occasioned by lathi strokes,

5. In support of its case, the prosecution relies on the evidence of eye-witnesses P.Ws. I to 7 and that of the Daffadar P.W. 8 who arrived at the spot immediately after the assault. P.W. 1 is the son of the deceased. He did not give the name of Parsuram in the F.I.R. As to the question why he did not mention the name of Parsuram Harichandan in the F.I.R. he made prevaricating and false statements. Before the Circle Inspector (P.W. 15) he stated that due to forget-fulness he did not mention the name of Parsuram in the F.I.R. In his application before the S.D.O. Khurda (Ext. A/b) he had stated that he came to know Parsuram Harichandan having given the order after the filing of the F.I.R. He admits that Banchhanidhi was fined Rs. 100/- by Parsuram as Surpanch and that he and his father executed blank handnotes in favour of Parsuram over the return of which there was dispute amongst them, and they sent a written report against Parsuram to the Police.He now denies the existence of party faction in the village though he had so stated before the Circle Inspector (P.W. 15) in connection with the demanding back of the blank handnote from Parsuram.

P.W. 1 is a relation and partisan witness. Moreover he is anxious to suppress the truth lest he might be disbelieved. P.W. 2 is the son of deceased Dinabandhu, uncle of Banchhanidhi. His evidence is that at the tank the party of the accused persons had given threat that they would take revenge by killing other persons of the Barada families. This statement of his is not corroborated by any other witness. He otherwise supports the prosecution story of attack at 5 P.M. He is a relation and partisan witness. P.W. 3 is another son of Dinabandhu. He denies the existence of party faction in the village though he admitted before the Circle Inspector (P.W. 15). He was fined by Parsuram. He states that about a year before the occurrence he was tied and assaulted by Parsuram. He did not state before the Sub-Inspector (P.W. 14) about the presence of Parasuram. He is a relation and partisan witness and has animus to depose against Parsuram and against the members of his party.

P.W. 4 is the widow of Banchhanidhi. In Court she states that she does not know if her husband was fined by Parsuram. This fact she had admitted before the Circle Inspector (P.W. 15). There is some discrepancy in her statement and that of the other prosecution witnesses as to whether the deceased was first surrounded and then assaulted. She generally supports the prosecution case. P.W. 6 is the son of P.W. 3 and generally supports the prosecution case - P.Ws. 1, 2, 3, 4 and 6 all belong to the family of the deceased Banchhanidhi. They are partisan witnesses in the sense that in the noon incident there had been admittedly a riot in between the persons belonging to Parsuram's party and that of the Barada families, and they had disputes over the return of the blank handnote though the accused persons did not admit it.

The intrinsic evidence of some of these witnesses is also not acceptable as they are not prepared to admit the truth with regard to statements they had already made either before P.W. 14 or P.W. 15. P.W. 5 made a complaint before the Sima or the Committee made up of a group of villages including his village that Parsuram had received consideration from him but was not giving him lands. He has absolutely no knowledge of the Jharia tank incident as he claims to have been away from the village at about that time. He stated before the Circle Inspector P.W. 15 that there were party factions in the village over the non-return of blank handnote. He is an accused in the other counter case filed by the accused persons over the noon-incident as evidenced by the F.I.R. (Ext. H). He appears to be an unreliable witness and I am not inclined to place any reliance on his evidence. The learned Government Advocate also did not place much reliance on his evidence.

6. P.W. 7 states in Court that Sashibhusam did not give lathi blows on the head of Banchhanidhi. He had however stated before the police to the contrary. He implicates Dambaru Paikrai and Trinath Rana as running up to Banchhanidhi and giving lathi blows on the body and head of Banchhanidhi. This is altogether a new story and contrary to the evidence of all other prosecution witnesses. According to him, Sashibhusan was merely present there but did not assault Banchhanidhi. He admits that there are two parties in the village. He stated in the committing Court that his father gave two blank handnotes to Parsuram and this he denies in the Sessions Court. He supports the defence case that Banchhanidhi and Dusasan were present at the Jharia Tank with lathis in hands. He is an accused in the counter case as mentioned in Ext. H. He stated before the committing Court that the prosecution party belonged to one party and accused persons to a different party and he had admitted that he belonged to the prosecution party though now he denies it. He was declared hostile by the prosecution and was cross-examined. There was some controversy at the Bar as to the weight to be attached to the evidence of P.W. 7 who is considered to be a hostile witness. In a Full Bench decision of the Calcutta High Court reported in Profulla Kumar v. Emperor AIR 1931 Cal 401 their Lordships held -

The fact that the witness is dealt with under Section 154, Evidence Act, even when under that section he is cross-examined to credit, in no way warrants a direction to the jury that they are bound in law to place no reliance on his evidence or that the party who called and cross-examined him can take no advantage from any part of his evidence. The evidence of such a witness is not to be rejected either in whole or in part. It is not also to be rejected so far as it is in favour of the party calling the witness, nor is it to be rejected, so far as it is in favour of the opposite party. The whole of the evidence so far as it affects both parties favourably or unfavourably must go to the jury for what it is worth-

This represents the correct view of law with regard to assessment of the evidence of such witnesses and this was followed in Nebti Mandal v. Emperor AIR 1940 Pat 289. Judged by the aforesaid standard, P.W. 7 is not only a partisan witness, but also appears to be thoroughly unreliable. He is not prepared to admit even his previous statements. His evidence also runs counter to the general trend and essential details of the prosecution case, though He supports a part of the defence case that Banchhanidhi and his son were present in the tank with lathis in hands. I am not inclined to place any reliance on any part of the evidence of this witness who appears to roe to be thoroughly unreliable.

7. I have said already that no reliance can be placed on the intrinsic evidence of P.Ws, 1, 3, 5 and 7. 'P.Ws. 1 to 4 and 6 are relation' and partisan witnesses. Mr. Mohapatra contends that no reliance can be placed on the relation and partisan witnesses. The answer has been given in Dalip Singh v. State of Punjab : [1954]1SCR145 . The following two passages may be extracted:

A witness is normally considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. ' It is true when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.

This is not to say that in a given case a Judge for reasons special to that case and to that witness cannot say that he is not prepared to believe the witness because of his general unreliability, or for other reasons, unless he is corroborated. Of course that can be done. But the basis for such a conclusion must rest on facts special to the particular instance and cannot be grounded on a supposedly general rule of prudence enjoined by law as in the case of accomplices.

In Karnail Singh v. State of Punjab AIR 1954 SC 204 Mr. Justice Venkatarama Ayyar speaking on behalf of the Court observed as follows:

He is a witness against whom the learned Judges had nothing to say and if they required corroboration of his evidence it was because he was a relation of the deceased and it was considered not safe to base a conviction on his sole testimony. The corroboration that is required in such cases is not what would be necessary to support the evidence of an approver but what would be sufficient to 'lend assurance to the evidence before them, and satisfy them that the particular persons were really concerned in the murder of the deceased'.' In case of a relation witness whether corroboration is necessary or not will therefore depend on the particular facts and circumstances of each case.

8. Whether a partisan witness can be accepted without corroboration, it would be sufficient to refer to a passage in E.G. Barsay v. State of Bombay : 1961CriLJ828 . Their Lordships observed-

He could at least be equated with a partisan witness and it would not be admissible to rely upon such evidence without corroboration. It would be equally clear that his evidence was not a tainted one, but it would only make a difference in the degree of corroboration required rather than the necessity for it.

To the same effect was the observation of a Division Bench of this Court reported in Madan Mohan v. State ILR 1956 Cut 101 : AIR 1956 Orissa 171. There was already an incident in the noon at the Jharia Tank wherein Dinabandhu, a member of their family, was assaulted to death. The finding of the learned Sessions Judge that the accused persons had a discomfiture and were determined to take revenge is not borne out by the materials on record of this case. Six of the accused persons had very minor injuries on their bodies, and on the contrary from the side of the prosecution party not only one man, was dead, but others were severely injured. Once Dinabandhu was killed, it is difficult to accept that : the accused party would still pursue the matter to cause the death of Banchhanidhi in the village by another incident.

9. Mr. Mohapatra next argues relying upon a decision reported in In re Vengala Reddy AIR : 1956 Andhra 26 that where the evidence given by a witness is demonstrably false either by reason of the fact that essential circumstances of the story given out by him are found to be unfounded or some innocent persons have been implicated out of some motive or other, especially when the witness: is shown to be. an interested or partisan character and it is rejected either as against an individual accused or a major part of the case it would be unsafe to accept it against other accused or as regards other circumstances. This needs consideration of the salutary principle in the matter of appreciation of evidence as to if a witness speaks; falsehood in some part of the evidence whether his; evidence as a whole must be discarded and connected with it is the question as was laid down by the Supreme Court in Abdul Gam v. State of M.P. : AIR1954SC31 and recently discussed by a Bench of this Court in Ram Chandra Sahu v. The State 28 Cut LT 398 : 1963 (1) Cri LJ 377 whether the Court would be careful in sifting the evidence so as to distinguish the chaff from the grain and disengage the truth from the falsehood by careful analysis.

10. To appreciate the contention it is necessary to refer to two findings of the learned Sessions Judge, on the basis of which it is contended; that the entire prosecution story must be discarded. The learned Sessions Judge held,

Considering all the facts and circumstances. discussed at length above, I am in doubt (sic), in my mind, that the prosecution case against the accused Parsuram has no ring of truth in it. The Charge under Sections 302/109 Indian Penal Code consequently fails and the accused Parsuram must: undoubtedly deserve an honourable acquittal.

He further held,

The Doctor (P.W. 13) found no other mark of injury, not even a bruise or an abrasion, on the body of Banchhanidhi excepting only two lacerated' injuries on his head. This clear fact established by the medical evidence, thus, runs counter to the prosecution case of the pushes given with the ends, of lathis to the body of Banchhanidhi and to the alleged tramplings over the body by the accuseds persons. Accordingly, the theory as to the alleged actual assault given by the above accused! persons to Banchhanidhi, cannot be given credence to.

11. The learned Sessions Judge's findingfyhat it has been conclusively established in this case that Parsuram was not present at the scene of occurrence cannot be accepted. On the evidence of P.W. 15 it can be definitely said that Parsuram was present at Khurda at 2-15 P.M. Admittedly Khurda is 34 miles from Sunakhala and is connected by bus service, Sanakhala is 6 miles from Gamarimunda connected by road and a person may cover the distance by a cycle, From Gamarimunda to Godijhar the distance is 2 miles which must be covered by foot through the paddy fields. The -conductor and cleaner, though cited as witnesses by the prosecution, were not examined. The Assistant Manager, O.R.T. was summoned by the defence. He attended Court but was not examined. P.W. 10 deposed that he saw Parsuram in the evening at Gamarimunda coming from Sanaijthala side. This is all the evidence to come to the conclusion that Parsuram was not present at the Jscene of occurrence.

In his statement under Section 342 Criminal Procedure Code, Parsuram merely stated that he was absent from the village, but did not present a clear and specific case as to where he exactly was at 5 P.M. at the time of occurrence. The evidence of P.W. 10 that he saw Parsuram coming from Sunakhala side in the evening does not W fully establish that Parsuram was not present at J the scene of occurrence. In the plea of alibi the I absence at the exact time must be clearly made out. It is not unlikely that after the occurrence Parsuram might have gone away to Gamarimunda and made a show of coming from Sunakhala side. Evidence of P.W. 10, if accepted, at least shows that Parsuram left Khurda by bus for Sunakhala and came up to Gamarimunda, The cumulative effect of all the evidence undoubtedly is that there is a high degree of probability that Parsuram might not have been present at the scene of occurrence. But I am unable to agree with the learned Sessions Judge that evidence does lead to the irresistible conclusion that Parsuram was absent.

Section 103 of the Evidence Act lays down,

The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

The illustration referred to in the Section itself is las follows:

A prosecutes B for theft, and wishes the 'Court to believe that B admitted the theft to C.A must prove the admission.

B wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it.

(See also Gurcharan Singh v. State of Punjab : 1956CriLJ827 . When the Court is concerned; with the question of an alibi, it is not a case of proving the existence of circumstances bringing the case within any one of the general exceptions or special exceptions of the Indian Penal Code and, Section 105 of the Evidence Act does not apply. It was incumbent upon Parsuram to establish that he was at a particular place at the relevant time. He lias adduced no evidence to establish such a case. It cannot be said that the prosecution witnesses are lying when they say that Parsuram was present at the scene of occurrence; Parsuram's acquittal may be justified on the ground that the prosecution fail to prove beyond reasonable doubt the presence of Parsuram on the scene. But that is not the same thing as to say that the evidence discussed by me in this passage is sufficient to establish beyond reasonable doubt Parsuram's absence from the spot,

12. The other finding is that the evidence regarding poking and trampling on the deceased Banchhanidhi has not been supported by the Medical evidence which discloses that there were no injuries on the body of Banchhanidhi other than the two fatal head injuries. So far as the trampling is concerned, there is no evidence that the witnesses were using shoes so as to cause injuries, and so far as the poking is concerned, there is no evidence that the sticks had pointed ends so as to leave marks of injuries on the body. But, at any rate, on the basis of the evidence that there was poking and trampling by large many persons it was likely that some other marks of injuries would have been left on the body of the deceased. To that extent one might say that a part of the evidence of the witnesses was not true.

13. If the evidence of a witness is partly false, would the evidence be discarded as a whole? This is embodied in the maxim 'falsus in uno fal-sus in omnibus'. The answer to this was admirably presented in Sukha v. State of Rajasthan (S) AIR.1956 SC 513. Mr. Justice Bose speaking for the Court put it as follows:

The argument, for all its repetition, length and eloquence, was the hackneyed one that when one part of a witness's evidence is disbelieved, it is unsafe to act on the rest of his testimony. The answer is equally hackneyed, namely, that Judges of fact have the right to do this.

In Nisar Ali v. State of U.P. : 1957CriLJ550 their Lordships laid down that this maxim has not received general acceptance in different jurisdictions in India; nor has this maxim come to occupy the status of a rule of law. It is merely a rule of caution. All that it amounts to that in such cases the testimony may be disregarded and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances but it is not what may be called a mandatory rule of evidence. This principle is expressed in another form by saying that the Court must be careful to examine the entire evidence and must distinguish the chaff from the grain and must not take to an easy course of discarding the entire prosecution case merely because a part of the story is false. Judged in this light it cannot be said from the evidence on record that the evidence of the prosecution witnesses implicating Parsuram is false. From the mere fact that the evidence regarding poking and trampling has not been corroborated by the medical evidence, the entire prosecution case cannot be said to be false.

14. On the principles discussed the evidence of the relation and partisan witnesses in this particular case cannot be accepted without corroboration and more so as the intrinsic evidence of many of them is not trustworthy. The corroborating materials are (i) the evidence regarding the existence of blood stains on the scene of occurrence, {ii} proof of the fact whether Banchhanidhi and his son Dusasan were present at the Jharia Tank incident during noon, and (iii) the evidence of the daffadar P.W. 8 who arrived at the spot immediately after the occurrence at 5 P.M.

15. As to the question of existence of blood stained earth on the Diha of Bhagaban Route where Banchhanidhi was assaulted, the prosecution evidence is that there was profuse bleeding from the mouth, nose and ears of Banchhanidhi. If there was such profuse bleeding, there must be large patch of blood on the spot. Along with the charge sheet some blood stained earth seized from the spot on 6-11-1961 was despatched. There has been no proof of any seizure list of the blood stained earth, nor was it sent for chemical examination to establish that the blood was of human origin. Despite the statement of some of the eye-witnesses and P.Ws. 8 and 14 it must be held that there has been no seizure of blood stained earth and the blood has not been established to be of human origin. If proof of profuse blood stains on the spot could have been established by the prosecution, it would have greatly excluded the defence theory that Banchhanidhi might have got the fatal assaults at the tank incident. The prosecution failed to establish the existence of profuse bleeding at the spot and has not presented the most important corroborating circumstances for acceptance of the prosecution case.

16. The prosecution case is that Banchhanidhi and his son Dusasan were not present at the Jharia tank incident during noon. The defence story as mentioned in Ext. H is that Banchhanidhi and his son Dusasan were involved in the Jharia tank incident and that Banchhanidhi might have got the fatal assault there. The prosecution's further case is that Banchhanidhi and his son went to the jungle to uproot Biri plants and returned from there to the village about one ghari before sunset. The fact that Banchhanidhi and his son were throughout absent from the village in uprooting Biri plants could have been fully established by the prosecution. P.W. 1 admitted in cross-examination that other persons saw them uprooting Biri crop on that day. Nidhia Jena and one Banchha are among such persons. If Banchhanidhi and his son were throughout present in the jungle and were never involved in the Jharia Tank incident, the possibility of Banchhanidhi receiving fatal blows at the Jharia Tank could have been excluded, and there being no case of either parties that Banchhanidhi was assaulted in any other incident, the prosecution story would have received corroboration from proof of the absence of Banchhanidhi during the noon incident in the jungle.

17. With regard to P.W. 18's evidence, he is no doubt not a relation or partisan witness. His conduct however is not above board. According to him, two choukidars accompanied, him and kept watch on the dead body. The choukidars were cited as witnesses, but were declined to be examined by the prosecution. He stated that Banchhanidhi died at the choura. This is contrary to the prosecution evidence that Banchhanidhi died in a house. If his version that Banchhanidhi died at the Choura by the time of his arrival is true, he should not have allowed the dead body to be taken to the house until the I.O. arrived at the spot. If two choukidars were directed by him to keep watch over the dead body he should havi' forthwith come to the Thana to lodge the F.I.R. No doubt, another person had been deputed to the Thana to lodge F.I.R. in connection with the noon, incident, but there was no knowing when the Sub-Inspector would arrive in that connection. He made absolutely no effort at the spot to arrest persons whom he found running away in his presence. Some of them entered into houses in Nuasahi where Banchhanidhi was assaulted. There should have been an attempt on his part to detect at least those persons. Taking an over all picture of the matter I am not inclined to place much reliance on the evidence of P.W. 8.

18. The conclusion is irresistible that no independent evidence is available for corroboration of the evidence of the relation and partisan witnesses. In such circumstances it is difficult to accept the prosecution story as having been established beyond reasonable doubt. It is necessary to mention that the learned Sessions Judge has freely used the case diary for coming to the conclusion as to whether certain statements were previously made by the witnesses. This is not permissible in law. It is open to the prosecution and the defence to utilise the case diary for purpose of contradiction under Section 145 of the Evidence Act. If they failed to do their part of the duty and the learned Sessions Judge himself did not draw the attention of the witnesses to the case diary during trial, there can be no further use of it.

19. It is necessary to mention in this case that the concerned Investigating officers have not discharged their duties in the collection and presentation of the prosecution evidence. I find absolutely no justification as to why there was no seizure list of the blood stained earth, and even if there was one why it was not proved as to why the blood stained earth was not sent for chemical examination. It is also somewhat remarkable that the learned Public Prosecutor conducting the case on behalf of the State never paid any attention to this part of the case even though it appears from the charge-sheet that blood stained earth was despatched along with the charge-sheet. The prosecution ought to have also made an effort to establish the absence of Banchhanidhi at the Jharia Tank incident if it was true. These are very substantial laches on the part of the Investigating officers which it is our duty to point out, so that dastardly acts of murder would not escape punishment merely due to negligence in the procurement of relevant available materials.

20. In the result I would allow the Criminal Appeal and discharge the death reference. All the appellants are acquitted and they be set at liberty forthwith.

S. Barman, J.

21. I agree.

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