P.K. Mohanti, J.
1. The appeal. is by the State Government against a judgment of the learned Sessions Judge of Dhenkanai acquitting the two respondents of the charges under Sections 302/34 and 325/34 I.P.C.
2. One Mahulik Naik of village - Nimidha had three sons, namely, Duryo Naik, Nakfodi Naik and Kulamani Naik. The three sons were separate since 1930, On 1R-6-52. Nakfodi and Kulamani sold one acre of land appertaining to plot Nos. 2110 and 2112 to one Kalyan Sahu of Raibania Duryo had not sold his share out of that land. Kalyan took possession of the land purchased by him and remained in possession of the same till 1972. In 1973, Duryo Naik started creating trouble and demanded his right over a portion of plot No. 2110 : On 4-11-1974, Duryo Naik cut paddy crops from the land. Ramesh Sahu, son of Kalyan Sahu lodged a report at the police station about this incident and a station diary entry was made. The police warned Duryo Naik not to interfere with the possession of Kalyan Sahu. In 1975. Kalyan had grown paddy crops on the land. On 31-10-1975. Duryo Naik and his son Iswar Naik (the deceased) along with two others forcibly cut the paddy though if was not fully ripe. Kalyan Sahu lodged information at the police station and a case under Sections 457/379 I. P. C was started, Duryo Naik was called to the police station for interrogation. In this back ground, it was alleged that on 3-11-1975 at about 8 A. M. while Iswar Naik (the deceased) and his mother Chakheri Dei (P. W. 4) were proceeding towards village Raibania they were way laid and assaulted by the respondents. Respondent No 2 Nakfodi Sahu dealt blows with a tangi on the deceased and P. W. 4. Respondent No. 1 Chakradhar Sahu dealt lathi blows on the back, neck and other parts of the body of the deceased. He also assaulted P. W. 4 with a lathi. Both the respondents ran away to their village after committing the assault. The deceased and his mother were taken to the hospital at Motanga. The doctor examined the deceased and declared him dead. He also examined P. W. 4 and found Injuries on her person and sent her to Dhenkanai hospital for better treatment. F.I.R. was lodged by P. W. 1 Banambar Naik on the same day at 1. 30 P. M. and investigation was taken up. In due course, the respondents were charge-sheeted under Sections 302/34 and 325/34 I.P.C.
3. The respondents denied the charges and pleaded innocence. During his examination under Section 313 Cr P. C. respondent No. 1 Chakradhar Sahu look the pies, of self defence.
4. The learned Sessions Judge. on a consideration of the evidence led by both the parties, held that the Prosecution had failed to establish its case against Rule 2 Nakfodi Sahu and that Rule 1 Chakradhar Sahu was protected by the right of self defence, Upon such findings, he acquitted both the respondents of the charges framed against them. It is urged in this appeal that the findings of the learned Sessions Judge are against the weight of evidence on record.
5. In order to substantiate the charges prosecution relied mainly on the direct evidence of P. W. 4 Chakheri Dei and the dying declaration of the deceased before P. Ws, 1 to 6. The learned Sessions Judge disbelieved the evidence of these witnesses.
6. There are, in the present case, certain unsatisfactory features which create considerable doubt about the prosecution case. The F.I.R. was lodged on the date of occurrence by P. W. 1 who is the first cousin of the deceased. What is most significant is that Rule 2 Nakfodi Sahu was not named in the F.I.R. as an assailant of the deceased, The only person mentioned as the assailant of both the deceased and P. W. 4 is Rule 1 Chakradhar Sahu. P. W. 1 deposed in Court that the deceased had made a dying declaration before him at the spot implicating both the respondents as his assailants. He also stated that he had ascertained the details of the occurrence from P. W. 4 before lodging F.I.R. at the police Station. The omission to mention the name of Rule 2 Nakfodi Sahu in the F.I.R. seems very significant in the facts and circumstances of the case. Nakfodi Sahu was arrested by the police on 16-12-1975, No satisfactory explanation has been offered as to why his arrest was delayed for such a long time. The evidence of the Investigating officer (P. W. 15) shows that P. W. 1 did not disclose before him that the deceased had named Rule 2 Nakfodi as one, of, his assailants. His evidence also shows that p. W. 1 did not mention the name of Nakfodi in any connection whatsoever.
P. W. 4 stated that both the respondents committed assault on her and the deceased. According to her, Nakfodi dealt tangi blows on her hands and legs and on the head of the deceased. According to the Investigating Officer the story put forward before him by the witnesses was that both the deceased and P. W. 4 were assaulted with lathies and nobody told him that . either the deceased or P. W. 4 was assaulted by a tangi or any other sharp cutting weapon. P. W. 4 admitted in cross examination that she had stated before the police that both the respondents had used lathies in committing the assault. The doctor (P. W. 7V who held post mortem examination found only four lacerated wounds and one eccymosis on the dead body of the deceased and opined that the injuries could be caused by lathies. The evidence of p. W. 4 that Rule 2 Nakfodi inflicted cut injuries on the deceased is not supported by the medical evidence. According to, the evidence of the doctor there was not a single incised wound on the dead body of the deceased. P. W. 4 was examined by the police on 2-12-1975. There is no satisfactory explanation for this delay in recording the statement of p. W. 4. The evidence of P. W. 1 shows that P. W. 4 had accompanied him to the police station when he went there to lodge F.I.R. P. W. 4 also admits that she attended the 10th day Sudhi Ceremony of the deceased. Explanation that P. W. 4 was not available in the village and was being treated in the hospital is, therefore, not acceptable.
P. Ws. 5 and 6 gave evidence in Court that the deceased in his dying declaration had implicated both the respondents as his assailants. But their version before the police was that the deceased had simply stated that he was assaulted by 'Gudiaghar people (people belonging to Gudia caste) arid that he had not disclosed the names of the assailants.
P. W. 2 stated in her examination-in-chief that P. W. 4 had told her at the spot that the deceased was assaulted by both the respondents. But in cross examination she stated that p. W. 4 had not told her at any time that the deceased was assaulted by the respondents. According to her. the deceased made the dying declaration under a Pipal tree after he was removed from the spot. But her evidence shows that when the deceased reached there he did not open his mouth. Attempt was made to put some water into his mouth, but it did not open.
P. W. 3 stated that on enquiry by P. W. 2 - Nidra Dei the deceased made, the dying declaration near the pipal tree. She did not disclose before the Investigating Officer that to the query of P. W. 2, the deceased made the dying declaration implicating the respondents. In cross examination she stated that the condition of the deceased was very serious when she first saw him near the tree and he was not making any movement of his body, saliva was coming out of his mouth, and his eyes were closed. The witness stated that he met the I. O. at the police station on the date of occurrence, but did not make any statement before him on that day.
7. A careful scrutiny of the evidence of the above witnesses would clearly show that it is full of glaring discrepancies and meaningful embellishments. The trial court in an exhaustive Judgment, after considering the evidence of the witnesses, came to the conclusion that the prosecution failed to establish its case against the respondents. On a review of the evidence, we are also of the view that the prosecution witnesses are unreliable. The exact circumstances under which the occurrence took place appear to have been suppressed by the prosecution.
8. It is urged by the learned Counsel for the state that the respondent No. 1 Chakradhar advanced a plea of self defence during his examination under Section 313 Cr. P.C. and having failed to establish the plea of self defence he is liable to be convicted. We are unable to accede to this contention. In the absence of any reliable evidence in support of the prosecution case an accused cannot be held guilty by only using his admission that he had caused injuries to the deceased and leaving out of consideration the circumstances in which he is alleged to have caused injuries to the deceased. Under Section 313 Cr. P.C., the statement of an accused may be taken into consideration 'at the enquiry or the trial'. No doubt he can be held guilty if during his examination under Section 313 Cr.P. C. he confesses to the commission of the offence charged against him. But if he does not confess and seeks to explain his conduct pleading the right of self defence he cannot be convicted on that plea alone. In this connection, we would rely on a decision of the Supreme Court in the case of Narain Singh v. State of Punjab 1964 (1) Cri LJ 730 (SCI wherein it was laid down as follows (at p. 733):.Where a person accused of committing an offence sets UP at his trial a plea that he is protected by one of the exceptions, general or special, in the Indian 'Penal Code', or any other law defining the offence the burden of proving the exception undoubtedly lies upon him. But this burden is only undertaken by the accused if the prosecution case establishes that in the absence of such a plea he would be guilty of the offence charged. The prosecution case, however, did not by reliable evidence establish affirmatively that Narain Singh had done any act which rendered him liable for the offence of murder. His responsibility, if any, arose only out of the plea raised by him; if the plea amounted to a confession of guilt the court could convict him relying upon that plea, but if it amounted to admission of facts and raised a plea of justification, the court could not proceed to deal with the case as if the admission of facts which were not part of the prosecution case was true, and the evidence did not warrant the plea of justification.
9. For the foregoing reasons, we uphold the orders of acquittal and dismiss the appeal. The respondents heed not surrender to the bail. Their bail bonds be cancelled.
J.K. Mohanty, J.
10. I agree.