B.K. Behera, J.
1. The two appellants, their father Chintamani. Chintamani's sisters's son Sukanta anda co-villager Chhatia alias Purna Chandra stood charged under Sections 148 and 302 read withSection 149 of the Indian Penal Code ( for short, the 'Code') for having formed an unlawful assembly armed with deadly weapons and for commission of the murder of Dayanidhi Patnaik (here in after described as the 'deceased') in village Kalyanpur in the district of Puri on August 12, 1979. They also stood separately charged under Section 302 read with Section 24 of the Code for having committed the murder of the deceased in furtherance of their common-intention. It was alleged that there had been a dispute between Chintamani on the one hand and the deceased on the other relating to the possession of a house which the deceased had locked. On the day of occurrence, on seeing that it lad been unlocked, the deceased challenged as to who had unlocked the house. Upon this, the co-accused Sukanta asked the appellant Gunduchi to bring a Bhusa ( a piercing instrument). The other co-accused persons including the appellant Mara came armed with lathis and the appellant Gunduchi came with a Bhusa. The appellant Gunduchi by means of the Bhusa and the co-accused persons by means of lathis assaulted the deceased who was lifted by some persons to the house of P. W. 12 and information was sent to the police station at Sarankul. On receipt of the first information report (Ext. 1/3), a case was registered against the five accused persons. The deceased succumbed to the injuries on August 24, 1979. Witnesses were examined in the course of investigation and dying declarations of the deceased were recorded by the doctor (P. W. 11) and the Investigating Officer (P. W. 15). On the completion of investigation, a charge-sheet was placed and on their commitment, the two appellants with the other co accused persons were prosecuted.
2. To bring home the charges, the prosecution examined fifteen witnesses of whom P Ws. 2, 6, and 7 figured as witnesses to the occurrence. The prosecution relied on the dying declarations, Ext. 9 recorded by P. W. 15 and Ext. 3/1 recorded by P. W. 11, the doctor. Besides, reliance was placed on a verbal dying declaration said to have been made by the deceased before P. W. 12. The learned Sessions Judge did not place reliance on the recorded and verbal dying declarations, but accepted the evidence of P. Ws. 2, 6 and 7 coupled with the medical evidence and while finding that the case had not been established against three of the five accused persons, convicted the appellants under Section 302 read with Section 34 of the Code and sentence each of them to undergo imprisonment for life. The co-accused persons were accquitted of all the charges and the two appellants were acquitted of the charges other th1an the charge under Section 302 read with Section 34 of the Code.
3. Mr. M.N. Das, appearing for the appellants, has submitted that the medical evidence did not clearly point to the conclusion that the death of the deceased was directly attributable to the injuries sustained by him as a result of the assault by the two appellants. He has taken us through the evidence of P. Ws. 2, 6 and 7 and has submitted that the evidence of these three witnesses was utterly untrustworthy and the learned Sessions judge went wrong in relying en their testimony and basing a conviction thereon. Mr. D.P. Sahoo, the learned Standing Counsel, has submitted that the medical evidence would clearly indicate that the death of the deceased was homicidal in nature and that P. Ws. 2, 6 and 7 had given clear and consistent evidence which had found support in the medical evidence. According to him, the appellants had properly been convicted under Section 302 read with Section 34 of the Code.
4. The learned Sessions Judge, on a consideration of the medical evidence, which need not be extracted again, has found that the death of the deceased was homicidal in nature No doubt, the Medical Officer (P W. 13) had, in his cross-examination, stated that death was due to secondary infections of the injuries leading to failure of the respiratory organ, but as his evidence would show, the injuries sustained by the deceased had caused secondary infections and the consequent death We would accept the finding recorded by the trial Court that the death of the deceased was homicidal in nature. Whether in the circumstances of the case, the commission of the offence would come within the purview of Section 302 or Section 304 Part I or II of the Code is another matter. It is, however, unnecessary for us to go into this question as for the reasons to follow, the order of conviction recorded against the appellants cannot' be sustained.
5. As noticed by the learned Sessions Judge, P. Ws. 2 and 6 were not only child witnesses, but were also the close relations of the deceased. The learned Judge has taken notice that 'bad blood was flowing between the accused persons on one side and P. Ws. 1 and 10 on the other and therefore, it cannot be said that P. Ws 2 and 6 are independent witnesses'. P. W. 2, it may be kept in mind, is the son of the first-informant (P. W.). In the normal and natural course of humam conduct, P. W. 2 would inform his father (P. W. 1) when be came back to his house after the occurrence. There was no evidence that he bad done so. The mother of P. W. 2 was in the house when the occurrence took place. There was no evidence that P. W. 2 had informed his mother about it. There was no evidence either that the other child witness (P. W. 6) had informed any one about the occurrence soon thereafter. In the first information report lodged by P. W. 1, the father of P. W, 2, neither P. W. 2 nor P. W. 6 had been named as a witness to the occurrence. P. W. 1 had stated in his evidence that his brother Golak had told him that the appellants and the other co-accused persons had assaulted the deceased and had caused injuries to him. The prosecution had not examined Golak as one of its witnesses. As stated by P. W. 1, P. W. 6 is the son of his brother Sadasiv. If P. Ws. 2 and 6 had, in fact, witnessed the occurrence, they must have kept their fathers and other close relations informed about it. There was no evidence that they had done so.
6. The evidence of a witness is not to be rejected in every case merely because his name does not find a place in the first information report as a witness to the occurrence. In the instant case, P. W. 1, the first-informant, was not himself a witness to the occurrence. There was no evidence either that any witness to the occurrence had informed him as to who were the persons who bed seen the occurrence. In such circumstances, the evidence of an eye-witness is not to be rejected merely because of the non-mention of his name in the first information-report. In the instant case, however, both P. Ws. 2 and 6 are the son and brothers son respectively of P. W. 1 and if they had witnessed the occurrence, they would have informed P. W. 1 before he went to the police station for making a report. Thus the evidence of these two witnesses was not immediately available after the occurrence.
After stating the facts. There Lordships observed
8. The evidence of a child witness is dangerous unless immediately available and before any possibility of coaching and tutoring (See 1983 CAR 129 (SC) State of Assam v. Mafizuddin Ahmed). In the instant cafe, the evidence of P. Ws. 2 and 6, close relations of , the deceased, who, as noticed by the learned Sessions Judge were not independent witnesses, had not been immediately available before any possibility of coaching or tutoring. It would be extremely unsafe to rely on the evidence of such witnesses.
9. Apart from the aforesaid considerations, even as noticed by the learned Sessions Judge, the evidence of these two witnesses was not consistent. Each of them had made prevaricating statements with regards to the substratum of the prosecution case in material particulars from stage to stage.
After stating the facts. There Lordships observed
12. The aforesaid inconsistent statements made by P.Ws. 2 and 6 in the course of investigation and at the trial could not be characterised as inconsquential as the contradictions related to the vital parts of the case of the prosecution and not with regard to the minor details.
13. In the case of Suresh v. State of U. P. AIR 1981 Supreme Court 1122, to which reference has been made by the learned Sessions Judge, on the facts and in the circumstances of that case, their Lordships accepted the evidence of the child witness although there had been some delay in disclosure by the child. In that case, the child witness was aged about five years at the time of the occurrence. There were unimpeachable and eloquent matters on the record which lent unfailing assurance that the child was a witness of truth and not a witnesses of imagination as most children of that age generally are. In the instant case, there was no other acceptable evidence to lend assurance to the evidence of P. Ws. 2 and 6 who, for the reasons recorded in this judgment, cannot be said to be reliable witnesses. No part of their evidence can be acted upon.
14. We would next come to the evidence of P. W. 7. Neither P. W. 7 had spoken about the presence of P. Ws. 2 and 6 on the spot nor P. Ws, 2 and 6 had spoken about the presence of P. W. 7 at the time of occurrence. It would be seen from the evidence of the Investigating Officer that this witness was examined in the course of investigation as late as on August 25, 1979. There was no evidence that he had disclosed the occurrence to any one until his belated examination in the course of investigation. If the police officer had come to the scene of occurrence on August 12, 1979 and P. W. 7 had witnessed the occurrence, he could have volunteered a statement to the Investigating Officer. No explanation whatsoever had been given by P. W. 7 as to why he did not disclose the occurrence to any one. He could not have had a sense of less after the Investigating police officer had come to the scene. There was no evidence that any of the accused persons had threatened him at the time of assault on the person of the deceased not to disclose the occurrence to any one. The learned Sessions Judge has observed that the general tendency of the people of the present day is to remain away from police interrogation and dusty law courts' one of which was being presided over by him at the trial. ' No reasonable explanation had been offered by P. W. 7 as to why he made a late disclosure, about the occurrence at the stage of investigation. In such circumstances it. would be unsafe and hazardous to accept the evidence of P. W. 7 with regard to the occurrence. In this connection; reference may be made to the observations made and principles laid down in AIR 1974 S. G. 775 : Babuli v. The Slate of Orissa, AIR 1976 S. C. 2488 : State of Orisss v. Mr. Brahmananda Nanda, AIR 1979 S. C. 697 : Panda Nana Kare v. State of Maharashtra, and 1983 S. C. C. (Cri.) 444 : Sonia Behera v. State of Orissa, In AIR 1980 S. C. 1750 : Bhagwan and another v. State of Madhya Pradesh, it has been held that it would be unsafe to act on the evidence of witnesses if the. delay in their examination in the course of investigation has not been explained.
15. We also find that the evidence of P. W.7 is discrepant with that of P. Ws. 2 and 6 and this witness, too, had made prevaricating statements at the stage of investigation and during the trial. He did not state-in the course of investigation, as testified in the Court, that the appellant Gunduchi gave a second blow to the deceased with the Bhusa. He had not been able to say as to on which part of the body of the deceased the lathi blow by Mana fell. According to him, Gobardhan Jena, Gadadhar Pradhan, Shyama Maharana and many other persons had witnessed the occurrence. The prosecution had not examined any of these persons at the trial. No doubt, when the eye-witnesses are many, the prosecution is not obliged to examine each one of them. This is not, however, to say that the prosecution would choose to examine only close relations of the deceased and a witness of the type of P. W. 7 who had made an unexplained belated disclosure about the occurrence and with held the evidence of independent persons.
16. For the reasons recorded by us, we find that the evidence of P. Ws. 2 and 6 was of a tainted character and that of P. W. 7 was no better. The tainted evidence of one witness cannot be corroborated by the evidence of another witness of the same character.
17. The charge had not been established against the appellants and they were entitled to an acquittal.
18. We would allow the appeal, set aside the order of conviction and sentences passed against the appellants and direct that they be set liberty forthwith.
G.B. Patnaik, J.
19. I agree.