N.K. Das, J.
1. This is a reference under Section 366 of the Code of Criminal Procedure by the learned Additional Sessions Judge, Dhenkanal for confirmation of the sentence of death imposed by him under S. 302/34 I. P. C, on both the accused persons in Sessions Trial No 20 of 1974. The accused persons have also filed appeal--one from jail (Criminal Appeal No. 113/75) and another through Counsel (Criminal Appeal No. 130/75). The Reference and the Appeals have been heard together.
2. Prosecution case may be stated as follows. Both the accused persons are brothers being sons of Natha Behera, Deceased Kandhia Behera is the brother of Natha. Kandhia left the village nearly 15 to 16 years back. Thereupon Natha took care of the minor children of Kandhia. Natha died 5 or 6 years back. Thereafter accused Dibakar stepped into the shoes of Natha and managed the properties of Kandhia as well as affairs of Balia Behera (P.W. 15) son of Kandhia Balia (P, W. 15) parted a major portion of the landed property in favour of the minor son of accused Dibakar and also in favour of Natha Behera and shifted to the house of his father-in-law Rajib Setho where he remained with his wife. The deceased returned to the village a few months before the occurrence and disputed the transfers made by his son. Consequently there was a panchayat who gave some decision. Kandhia did not respect this decision. Accused Dibakar started a criminal case against Kandhia.
On Tuesday the 19th of June, 1973 Kandhia had been to the house of his Samu-dhi, Rajib Setho to see his grandson son of Balia, P.W. 15). He took tea and came out of the house to the front courtyard. At that time both the accused persons were passing by that way. Accused Dibakar bad a Barchha (M. O. i) and accused Dwari was holding a Tangia (M. O. II). As soon as Dwari saw Kandhia, he told Dibakar 'Ai Salata this Hoichhi' and both of them rushed towards Kandhia. Suddenly Dibakar saying 'Sala Bila Khaibuki' pierced the barchha into the left side of the neck of Kandhia. Then he took out the barchha and exhorted Dwari to hack Kandhia. Thereupon Dwari inflicted three blows on the left flank with the Tangia. Kandhia fell down and died within a short time. Both the accused persons left the place with the blood stained weapons. While they were passing by the side of the shop house of Lachman Moha-bhoi, they gave out that they had killed Kandhia. At that place Dwari attempted to assault Nandia Behera (P.W. 14) with the Tangia but the assault was averted by intervention of others. Balia, the son of the deceased (P.W. 15) was absent from home as he had gone for cutting grass in Godari chaka. He came back home a few hours after when he received information of murder of his father. After obtaining details from his wife (P.W. 2) he went to Mohabi-rod police out-post situated at a distance of six miles with the Gramarakhi (D. W. 1) and one Hari Behera and reached the place at about mid-night on that day and orally reported the incident to the A, S.I. In-charge of out-post, The A. S.I. instead of reducing his oral report in writing sent Tankadhar Biswal (P.W. 10) to callMayadhar Dehnry (P.W. 11) to scribe the F. I. R. to be Iodised by Balia, (P, W. 15). On instruction of Balia, Mayadhar wrote out the F. I. R. The contents of the F. I. R. were read over to Balia who signed the same. The A, S.I. (P.W. 17) examined the informant at the out-post, Accused Dwari also cams to the out-post with the barchha (M. O, I) and the Tangia (M. O. II) which were seized by the A. S.I. and Dwari was arrested there. P.W. 17 reached the spot at about 5 p, m. next day. He examined P.W. 2 and held inquest over the dead body which was lying in front of the house of Rajib Setho. He seized blood stained earth from the place and the living worn by the deceased as well as one torn Sari from the spot. He despatched the dead body to Kamakhyanagar hospital for post-mortem examination with a constable and the Gramarakhi. The officer-in-charge of Parfang police station (P.W. 16) took charge of investigation from the A, S.I. in the village at about ,5 p.m. on 26-6-1973. On the direction of the S.I., the A. S.I. seized the application filed by the deceased before the Sarpanch relating to laid dispute, The A, S.I. examined P.Ws.. 1, 2, 3, 4, 5, 13 and other persons as well as both the accused persons on 20-6-1973. By the time the S, I. reached the spot at about 5 p.m. on 20-6-1973, both the accused persons had already beep arrested by the A. S.I. After completing investigation, he submitted charge-sheet under Section 302 read with Section 34 I, P.C. against both the accused persons. Both the accused persons were charged under Section 302/34 I, P.C.
3. The defence plea is that accused Dibakar was not present at the place of occurrence. Both the accused persons admit that they had dispute with deceased Kandhia prior to the occurrence on account of purchase of a portion of Kandhia's land from his son Balia and litigation was going on between Dibakar and Kandhia in the Magistrate's Court relating to such dispute. They also admit that the Tangia (M. O. II) belongs to them. The plea as stated by Dwari is as follows:
In the month of Jestho I and Dibakar had been to our lands to fence it, as we had raised seedlings thereon. We had taken the Tangia (M, O. II) with us. I sharpened one end of the wooden poles, whereas Dibakar posted the said poles into the earth. It was about 12.30 p.m. while we were posting the 'medhas' (Wooden poles), when my deceased uncle, Kandhia came there. On seeing us posting the wooden poles Kandhia said 'Aray salay medha kian potuchha. Baharokar nailay muin poophadi debi'. We protested and he created 'gol-nml'. Thereafter he asked us to wait there and went to call the surpunch. After the deceased left the place so saying, Dibakar asked me to remain there and went away saying he would come back after taking his food. The deceased alone came there nearly twenty five minutes after the departure of Dibakar. The deceased was holding the burtcha (M. O. 1). On reaching there he asked me to uproot the poles. I refused to do so and asked him to uproot them if he so liked. He created golmal with me and insisted that I should personally uproot the poles. Then he aimed a punch with a bare hand at my right temple, but he was not touching my right temple and was threatening me simply by aiming the punch at me without touching me. Thereafter he caught hold of one wooden pole and started snaking it with a view to uproot it. Then I went and caught hold of the said pole. We called names (obscene words) to each other. Thereupon he said that I was no match for him and I was vainly threatening him with assault, So saying he chased me with the bartcha (M. O. I). I was running ahead of him with the tangia (M. O. II). I came running and entered the frontage of Rajiba Setho. The frontage was fenced on two sides and on the third side was his house and the entrance door of the house was closed, I could not proceed further and the. only way out for me was to return back and face the deceased. I stopped there. Then the deceased (old me 'Sala abay kuaday jibu' and so saying he raised and pointed the bartcha at the left side of my neck. But the deceased was not actually piercing the bartcha at me he was simply holding out the bartcha at me as if he would assault me with it. He held the bartcha at me in that position for about five minutes. Then I caught hold on the bartcha with my left hand and pressed it down When the bartcha and the hands of the deceased get pressed down by me, I gave three blows with my tangia to the deceased to save my life. I cannot say where the tangia blows fell on the deceased. After I gave three blows to the deceased with the tangia, he caught hold of my tangia and we struggled, consequently the tangia slipped from my hands. I caught hold of the bartcha (M. O. I) which was lying there and pierced into the left side of his neck. I was actually aiming the bartcha at his shoulder and when he turned aside, the bartcha got pierced into the left side of his neck. Thereafter I came away to our house with the (Y' - J) and the tangia (M- - n)-I told all the above details to my brother Dibakar regarding the assault on the deceased. Then Dibakar asked me to proceed to the thana at once with the bartcha and tan-ma-he accompanied me. We went to the thana by an unusual route through the paddy fields. On the way Dibakar stopped to ease and directed me to so go to the thana ahead of him. I reached the thana (O. P) at 5 p.m. the A. S.I. was there, He asked me to keep the bartcha and the tangia near a mango tree. I kept them near a mango tree. Then he arrested me, Nearly 25 minutes thereafter Dibakar reached the thana. The A. S.I. enquired about the incident from Dibakar, thereafter Dibakar went and sat on a bench. A. S.I. kept me at the thana and took Dibakar to the village.' He also denied the fact of going with Dibakar with blood stained weapons and exclaiming to have killed Kandhia.
4. Dibakar says that in the afternoon of the date of occurrence both, he and his brother had gone to the paddy field with the Tangia (M. O. II) and were posting wooden poles there, He denies to have taken any part in the assault nor he was carrying the barchha and did not go to the village exclaiming that they had killed Kandhia. The deceased did not honour the decision of the Panchayat and sowed paddy on the land purchased by him from Balia. Thereafter there was a dispute which resulted in the incident and he did not take part in the alleged occurrence.
The learned Additional Sessions Judge has convicted both the accused persons under Section 302/34 I. P.C. basing on the following evidence.
(1) Evidence of eye witnesses, P.Ws. 1 and 2.
(2) Evidence of P.W. 3 to the effect that P.W. 1 bad informed him about the occurrence
(3) Evidence of P.Ws. 8, 13 and 14 regarding extra-judicial confession.
5. It would thus be evident that there is no dispute about the fact that Kandhia died of a spear blow on 19-6-1973 at about 3 p.m. He had left the village 15 to 16 years back and had come back a few months Wore the occurrence. His son Balia had made some transfers in favour of Dibakar's father as well as Dibakar's son and had shifted to his father-in-law's place. After return to the village Kandhia raised objections relating to the transfers made by his son, On 3rd of April, 1973 he filed a petition before the Sarpanch alleging that as he had left his house, Natha was enjoying all these properties and after death of Natha, Dibakar was enjoying, his properties and was utilising his son Balia as a labourer and has surreptitiously got some properties transferred from his son. This petition is Ext. 2. It is also not disputed that the Panchayat gave some decision and as the same was not honoured, Dibakar had filed a criminal case against Kandhia which was pending at the time of occurrence.
With this back-ground the prosecution case is that Kandhia had been to his Samu-dhi's place and after taking tea while he was coming out of his Samudhi's house both the accused persons were passing by that way. On seeing Kandhia both of them rushed to him. Dibakar assaulted him with a barehha at the neck and Dwari assaulted with Tangia at the waist, thigh and below the knee. Kandhia fell down and succumbed to death, The defence story is that the accused persons had posted wooden poles in the paddy field In the afternoon of the date of occurrence Kandhia went to uproot the poles which was objected to by the accused persons. Kandhia went to call the Sarpanch and after some time he came along with a barehha and tried to uproot the wooden poles forcibly. By that time Dibakar had already left the place. As Dwari obstructed he was chased by Kandhia and he entered into the compound of Rajib Setho (Samudhi of deceased) but finding no way out, he had to come back while he was confronted by the deceased with the barehha. Then he caught hold of the barehha and pressed it down. When the barehha was pushed down, he gave three blows with the Tangia which was followed by a tussle and the Tangia slipped from his hand. He caught hold of the barehha which was lying there and pierced it into the neck of the deceased, though he actually aimed the barehha at the shoulder of the deceased. As the deceased turned aside the barehha got pierced into the neck. Thereafter both the brothers started to come to the out-post. Dwari was holding both barehha and tangia. On the way Dibakar remained for easing and Dwari reached the out-post first and sometime thereafter Dibakar reached the out-post.
Out of these two versions, it is now to be found whether the prosecution story has been established beyond all reasonable doubts or the defence story is reasonably probable.
6. It is evident from the testimony of the Sarpanch (P.W. 4) and Nandia (P.W. 14) that at about 2,30 p.m. on that day while they were playing cards at the shop house of Lachman Mohabhoi, Kandhia came and complained to the Sarpanch (P.W. 4) that the accused persons had posted wooden poles on his land and asked the Sarpanch to go there to be present while he would remove the poles. Sarpanch refused to go as the parties had already gone to the court of law. At that time Kandhia was in a very angry mood and went away saying that whatever may happen he was determined to uproot the poles. lit appears from the evidence of P.W. 4 that Kandhia complained before him that the accused persons forcibly started raising paddy seedling on the portion of his land. This was done about 20 days after the decision was given by the panchayat. When P.W. 4 went to visit the land subsequent to the occurrence he also found that wooden poles were still standing on the other side of demarcation made by the deceased. He has stated that the demarcated portion, made by the deceased, was in possession of the deceased prior to occurrence. The defence plea is supported to this extent by prosecution evidence. But the prosecution case is totally silent about this part of the incident which took place op that day.
6A. P.W. 1 is a co-villager who says that he was passing by that way when he saw the assault by both the accused persons on Kandhia and he immediately left the spot prior to departure of the accused persons. He has stated in the sessions court that Dibakar gave a blow by barehha on the left side neck of the deceased which was followed by a Tangia blow by Dwari at the waist and after this blow the deceased fell down and thereafter Dwari gave two more blows with the Tangia on the thigh and below the knee joint of the deceased. His statement in the committing court is that the deceased fell down after the barehha was thrust into his neck. His statement under Section 164 Criminal P. C, is also to the same effect. He has stated before the I. O. that he shouted that Kandhia was being killed. In the Sessions Court he resiles from this and states that he did not raise any hulla after seeing the assault. In the Sessions Court he has tried to give a picture that nobody els excepting P.W. 2 was present at the spot at that time and nobody passed on the way at the relevant time. But in the committal court he has stated that several villagers were passing on the road at that time, From the evidence of P.W. 2 it appears that this witness is said to have been present even after the accused persons left the spot and this witness raised a hulla. When other persons were passing by that way which Is close to the place of occurrence, as appears from evidence, it is strange that nobody else saw such an offence being committed in broad day light. P, W. 1 stated before die I. O. that while he was near the Chua Batidha Chak which is situated at a little distance from the place of occurrence, he saw both the accused persons armed with barchha and Tangia running on the road and entered into the courtyard of Rajib and he came behind them to find out what was going to take place. He flatly denies this fact in the trial Court. Obviously this part of the story would appear to be inconsistent with the story as put (forward by P.W. 2 as to how the accused persons came upon the spot, On the other hand, this fact would probabilise the defence theory that accused Dwari ran from the field to the scene of occurrence. It cannot be said that this link of the story given by P.W. 1 before the I, O. would pot be a link to be forgotten or a mere embroidery. He has stated in his statement under Section 164 Criminal P. C, that he saw both ithe accused persons coming armed on the way at the chua bandha chak ahead of him at a distance of about 20 cubits and entered into the courtyard, of Rajiba which is in line with the statement before the I. O. This witness has denied in the Sessions Court to have made such statement. In the trial court he has stated that he cannot say anything preceding the occurrence about the two accused persons and the deceased. When he was confronted with his earlier statement before the I. O. and under Section 164 Criminal P, C. he has totally denied to have made such statement. Such blatant denials clearly establish that he is not a truthful witness. This witness states that he came for the second time to the spot in the evening on that fateful day and some time after his arrival Balia arrived at that place and he informed Balia that the accused persons assaulted his father and asked him to report at the police station. In the committing court he stated that when he went to the spot for the second time Balia had already arrived and in his presence Balia did not ask anybody regarding the occurrence. According to him the deceased was wearing a dhoti at the time of occurrence and a black napkin slipped away from the body. But Ifram the evidence of P, W. 2 and the inquest report it appears that the deceased was wearing a red napkin and had a blue lungi on the body, The Sarpanch (P.W. 4) is his wife's brother whose house is at a distance of about 100 yards from the place of occurrence. He met the Sarpanch and other villagers in the evening of that day, though they had discussions about the murder, yet he did not tell P.W. 4 or anybody else that he saw the accused persons killing the deceased. He says that on the following day after the police started enquiry he disclosed the name of these two accused. This witness states that he informed Hrudananda Samal, Tan-kadhar Biswal and Ratana Naik about the occurrence immediately after he left the spot. But none of these witnesses have been examined to support such contention of this witness. From the order-sheet of the sessions court dated 20-3-1975 ft appears that Hrudananda Samal and Ratana Naik were present in court as witnesses but they were not examined, It would thus appear that this witness gave sell-contradictory statements and tried to develop the evidence from stage to stage. From the evidence adduced on behalf of the prosecution it is clear that the matter had already received publicity. It is not a case where there was no publicity and the natural tendency of the person is not to disclose and to wait till the police arrives and questions about the occurrence. According to ordinary experience of human affairs it is natural to disclose the names of the accused persons and to say about the part taken by them to his own brother-in-law as well as other co-villagers in the evening when discussions about the occurrence took place. It is contended for the prosecution that out of fear he did not disclose the occurrence to anybody. Neither he was threatened or chased by any of the accused persons nor there is any material on record to show any reasons' of his being afraid. It has been held in Chanan Singh v. State of Haryana : AIR1971SC1554 ;
The conduct of the witness in running away from the place of occurrence even though he was not chased or threatened by any one of the assailants and his not reporting the incident even to the relatives or either of the two deceased persons was treated as abnormal
It is also very strange and beyond natural human conduct that he did not raise any hulla when he found two of his villagers killing another villager. His statements before the committal court, under Section 164 Criminal P.C. and before -the I. O. throw a great doubt about his presence at the spot and no prudent person can place reliance on the evidence of such witness. From his evidence it appears that he was examined by the I. O, at the spot. But his statement was not recorded and he was; taken to the outpost in the evening in a jeep and before the committing Magistrate he stated that he was told by the A. S.I. that he was being taken to the out-post as his bona fides were being suspected. His evidence before the committing Magistrate shows that his earlier statement that he has seen the occurrence was against his will and was out of fear. It is very unsafe to place reliance on the testimony of such a witness of doubtful credibility in a case of grave oftfence of murder.
7. P.W. 2 is the daughter-in-law of the deceased who was admittedly residing at her father's place. She is examined to say that she followed her father-in-law to the outer courtyard and witnessed the occurrence, According to her statement in the sessions court Dwari said 'Ae. Salata this Hoichhi' and both the accused persons rushed at the deceased, Dibakar told the deceased 'Sala Bila Khaibu Ki' and pierced the barchha on his neck. Thereupon Dwari gave him a blow with the Tangia at his waist as a result of which the deceased fell down. This was followed by two Tangia blows by Dwari on the left thigh and on the left leg and thereafter both the accused persons left the spot. In the committing court her versiop was that her child was ailing that day and she was with the child inside the house. Her father-in-law came to see the ailing child and after the baby slept her father-in-law was coming out and at the outer courtyard the incident took place. She did not state that she came out with her father-in-law to the courtyard. The tenor of her story before the committing court was that she was with the child inside the house and saw the occurrence from inside the house. She has categorically stated in the sessions court that the place of occurrence is not visible from inside the house where she was with the child. She has denied to have made such statement in the committing court. In the sessions court her story is that the child was not at home as he had been taken away to the street by her mother and after serving the father-in-law with tea she came out to see him off and as such she saw the occurrence. In the committing court her statement is that no person was present in the vicinity at the time of occurrence. But at the trial stage she changes, her version and says that P.W. 1 was standing at the place at the time of occurrence, Though P.W. 1 says that he did not raise any hulla, yet her statement is that P.W. 1 shouted that Kandhia was being killed. P.W. 1 states that he left the place before the accused persons went away. But her statement is that after the accused persons left the place, P.W. 1 came near the deceased and thereafter left the spot. She even did not ask P.W. 1 to inform her husband. In the trial Court she says that when villagers fathered ait the spot before arrival of her usband, she informed them how the occurrence took place. But her statement in the committing court is that she did not tell how her father-in-law died even though the persons congregated there enquired from her about the death of her father-in-law, She has also admitted that she did not name the accused persons as assailants while people assembled at the spot. This is quite contrary to natural human conduct and experience. In the committing court she stated that before she divulged the occurrence to her husband, she did not divulge the same even to her mother, sister or brother who had reached the spot before the arrival of her husband. If she actually had seen the occurrence, there was no reason on her part not to disclose to her brother, sister or mother. Realising this infirmity in her statement in the committing court she has changed her version in the trial court and stated that she told about the occurrence to her mother and brother. Her statement in the trial court is that P.W. 1 was standing near the fence and witnessed the occurrence and in fact came near the deceased after the accused persons left the spot. In the committing court she stated that at the time of occurrence she did no see any outsider and she saw P, W. 1 and P.W. 5 for the first time on the date of occurrence as they came near the place of occurrence after two hours. In the committing court she stated that P.W. 1 was present when she parrated the incident to her husband and P.W. 1 did not say anything to her husband, But the evidence of P.W. 1 is that he narrated the incident to the husband of P.W. 2. Her statement before the committing court is that though her husband asked persons present there if they knew anything about the occurrence, nobody said anything. A very interesting statement was made by this witness to the I. O, that at the time of assault Mohtm Setho, Mandar Setho and Mauda Setho were instigating the accused persons to assault her father-in-law. In the trial court she has retracted from this version and denied to have made such statement before the I, O. According to this witness when accused Dwari said that Kandhia was standing, P.W. 1 was present there and after Dwari said so, the accused persons rushed towards her father-in-law. But P.W. 1 does not support this part of her version. In the committing court P.W. 2 stated that accused Dwari did not utter anything during the entire occurrence. As regards the actual occurrence her statement in examination in chief is that the deceased fell down after the spear blow and one axe blow and the two other axe blows1 were inflicted after the de-cased fell down. But in cross-examination she says that no blow was inflicted on the deceased after he fell down and all the four blows were inflicted while he was standing. This witness says that she was examined by the police 10 or 12 days after the occurrence and P.W. 1 was examined by the I. O. immediately after her statement was finished. It would appear that her evidence is very shaky and also self-contradictory. She appears to have made developments from stag to stage in her statements about the occurrence. No reliance can be placed on the testimony of this witness. Her earlier statements are contradictory to her statements in Court. Credibility of such a witness is not beyond reproach. When we consider the totality of evidence of both the aforesaid two witnesses, who claim to be eye-witnesses, the irresistible conclusion is that they are not trustworthy.
8. The effect of omissions or contradictions from a previous statement will depend upon the totality of proof of facts and circumstances which has a great bearing on the _ probative value of the evidence of such witnesses. In this case it appears that the evidence of these two witnesses at one stage condemns all the evidence at a later stage which leaves the court with unreliable and untrustworthy evidence upon which the case is based. It is unsafe to place any reliance on these two witnesses in a case of murder when they are deposing as eye witnesses and their evidence suffers from flagrant contradictions on crucial points before the committal court and in the sessions court and their veracity is weakened and their conduct appears to be doubtful, Ip criminal trials when a particular witness or witnesses are shown to have swerved from the path of truth, either by suppression or by concoction, or by embellishment of facts which are untrue, such evidence must, as a rule, be discarded in absence of any independent and reliable corroboration by aid of which the truth out of the tarpished evidence can be sifted and falsehood distinguished Testimony of these witnesses is not only tainted but suffers from intrinsic infirmities and makes the case as put forward by the prosecution highly improbable, After scrutinising the evidence of the so called eye witnesses, we hold that such evidence canpot be accepted as basis for proof of a grave case of murder inasmuch as it shakes the very fabric of the prosecution case.
9. P.W. 3 is a witness who speaks that while P, W. 1 was going away from the scene of assault he passed op information of murder to him and he came to see the place of occurrence. It is admitted by P, W. 4 that P.W. 3 was not in good terms with the accused persons since the time of their dispute about landed properties, It is in evidence that deceased Kandhia after return to his village remained for a few days in the house of accused persons and thereafter he was residing in the house of P.W. 3 till the date of his murder, There is no reason to discard the evidence of P.W. 4. It is pot even the case of P.W. 1 that he communicated the occurrence to P.W. 3 soon after the occurrence. As such no reliance can be placed op the testimony of P.W. 3.
10. The next limb of the prosecution case is the extra-judicial confession which has been retracted. P.Ws. 8, 13 and 14 are witnesses on this score, It is evident from the testimony of P.W. 4 that P.W. 3 was not on good terms with the accused persons and P.W. 14 is the paternal uncle of P.W. 3. He also states that since 4 or 5 years P.W. 14 is not on good terms with the accused persons on account of land dis- Ext. The aforesaid three witnesses depose roadly that they and some others were sitting at the shop house of Lachman Biswal when the two accused persons passed by that way. Dibakar was holding a spear and Dwari was holding an axe and both of them expressed that they had killed the deceased. At that place accused Dwari was attempting to assault P.W. 14 with his axe which was averted by P.W. 13. This attempt to assault P.W. 14 is not the subject matter of charge in this case. As to extra-judicial confession P.W. 8 states emphatically that it is accused Dibakar alone who exclaimed that Kandhia has been killed and this exclamation was made only once. But P.Ws. 13 and 14 say that both the accused persons exclaimed three times that they had hacked Kandhia, Thus the witnesses dififer as to who made the confessional statement, whether Dibakar alone apd once, or both of them exclaimed three times. Testimony of these three witnesses also suffers from other intrinsic infirmities. P.W. 13 does not speak anything about playing of cards even though he states to be present at the place at 2.30 p.m. But according to P.W. 4 and P, W. 14 they were playing cards at that time. They also speak of complaint made by Kandhia to the Sarpanch at that time whereas P.W. 13 is completely silent about this fact. This aspect of the matter has a material bearing on the case. It is very strange and against natural human conduct that none of these persons raised any objection, nor complained before anybody, nor cared to inform the Gramarakhi or the police when they found the two accused persons were exclaiming of murder and one accused attempted to assault one of them, It is absolutely strange and beyond human conduct and curiousity that even though they came to know of such a murder, at a distance of a few yards, none of them cared to come to that place in order to know what had really happened.
Extra-judicial confession is to be judged !n the background of attending circumstances and to be considered if the same is voluntary and true and free from suspicion. There should be cogent evidence on record about the attending circumstances as well as the exact words used by the accused persons to consider whether the extra-judicial confession was not only true but also voluptary, Even accepting the extra-judicial confession which has been retracted, it is a very weak piece of evidence and has to be corroborated by other evidence on record. We have already held that the other evidence available on record is untrustworthy and there is no corroboration to such extra-judicial confession.
11. The prosecution case Is that after P.W. 2 narrated the incident to P.W. 15 and the latter went to the out-post and lodged information. Ext. 10/1 is the First Information Report which is said to have been scribed by P.W. 11 on instruction of P.W. 15 and advice of the A, S.I. (P.W. 17). In the F, I. R. Dibakar has not been implicated. It is alleged therein that Dwari pierced the barchha at the neck of Kandhia in the courtyard of Rajiba. P.Ws. 10 and 11 have signed this F. I, R. as witnesses. P.W. 11 the scribe of F. I. R. states that he wrote out the contepts according to instructions of P.W. 15. The contents were read out to P, W. 15 who put his signature on the report. According to him P.W. 15 did not raise any objection when he read over the contents of the F. I. R. before putting the signature. He has also emphatically assert- ed that he had not omitted anything what P.W. 15 wanted to be written in the F, I. R. He is consistent about this statement from the time of investigation to the stage of trial. The learned Additional Sessions Judge has held that it is P.W. 17 who has acted obliquely in dropping the name of Dibakar, From the evidence of P.Ws. 10, 11 and 15 it appears that Dibakar was present at the out-post when the F. I, R. was written out. It appears that P.W. 15 tries to feign ignorance of contents of the F. I. R While ne was cross-examined about the contents o the F. I, R. in Oriya he surprisingly states that he is not able to understand the contents. This witness is definite in his statemet that on learning by enquiry from his wife that both the accused persons assaulted the deceased with barchha and axe, he gave F. I, R. basing on such information, It is evident from the testimony of P.W. 17 that P.W. 15 signed the written report believing the contents to be correct after the same were read over and explained to him. He also admits that P.W. 11 was present when he read over and explained the contents to P.W. 15. There is no reason to disbelieve the statement of P.W. 11. It has been held by the learned Additional Sessions Judge that though P.Ws. 10, 11 and 15 state that Dibakar was present at Jjhei out-post and the A. S, I. (P.W. 17} gives a story that Dibakar was not present there and he met Dibakar on his way to the spot, the learned Additional Sessions Judge has inferred that the A. S.I. wanted to help Dibakar in keeping him out of implication in the crime. But the evidence of P.W. 11 who is a disinterested witness and who admittedly read out the contents of the F. I. R. clearly shows that Dibakar was not at all implicated in the crime. On the other hand Dwari is alleged to have assaulted the deceased with the barchha. This evidence also fits in with the defence version.
It appears that at the trial stag attempt has been made, to adduce evidence that Dibakar's name was also stated by P.W. 15 while writing out the F. I. R, But the evidence of P.Ws. 10, 11 and 15 read as a whole and the totality of the statements lead to the conclusion that Dibakar's name was not at all stated in the. beginning and an improvement in evidence implicating him was made in the sessions court. Of course, the F. I. R, is an information given by a person .f commission of offence and it can be utilised to contradict or corroborate its author. But this is a vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance can hardly over estimated from the stand point of the accused. It has been Kld in Ramakumar Paudey v. State of Marih Pra : 1975CriLJ870 that no doubt F. I, R, is a previous statement which can strictly speaking be only used to corroborate or contradict the maker of it. But omissions of important facts af- fecting the probabilities of the case are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case. In this case the F. I. R. was not lodged by an eye witness. But he was informed by the eye witness and in that case omission of the name of the accused was considered a vital defect in the prosecution case. In Damodar Prasad Chandrika Prasad v. State of Maharashtra : 1972CriLJ451 it is held that the First Information Report can be used for one of the limited purposes of corroborating or contradicting the makers thereof. Another purpose for which the First Information Report can be used is to show the implication of the accused to be not an after-thought or that the information is a piece of evidence res gestae, A Division Bench of this Court in State of Orissa v. Thakur Singh Munda ((1972) 38 Cut LT p. 564) has also held that the First Information Report is not accepted to be the encyclopaedia of the prosecution case. But in the First Information Report such details about other aspect of the incident should be indicated to show that if this was true it should not have been omitted. In such circumstances adverse inference may be drawn for omission of a material particular from the Fs I. R. which would depend on the facts of each case. In State at Punjab v. Sohan Singh : 1974CriLJ351 the eye witnesses did not disclose the name of one of accused persons, the name of such accused person was not mentioned in the F. I. R. and also existence of a lantern by which identification was possible at the time of occurrence was not mentioned in the F. I. R, In such circumstances the accused was acquitted. In view of the aforesaid observations we hold that omission of name of Dibakar in the F, I. R. goes a great why against the prosecution case and supports the defence plea on its vital aspect.
It is contended on behalf of prosecution that fine F.. I. R. is hit by Section 162 Criminal P.C. as the A. S.I. of the outpost, on receiving information from Dwari in the evening, had already started investigation by seizing the weapons and sending the Gramarakhi to the spot to enquire as to the real state off affairs and as such no reliance can be placed on F. I. R., the same being inadmissible. This contention is devoid of merit. The A. S.I. had only made the station Diary entry in the out-post and was taking necessary preliminary steps, After the written report was given at 11.45 p.m. by P.W. 15, he sent the same to the Officer-in-charge of the police station who treated it as F. I. R, It is the officer-in-charge of the police station who has the authority to record F. I. R. This is clear from the testimony of P.Ws. 16 and 17. The A. S.I. had no authority to record F. I. R. He has only to send the report to the officer-in-charge who is to record F. I. R. and start investigation. The information given by Dwari to P.W. 17 cannot be said to be the F. I. R. Accordingly w fcoid that the F. I. R, is net hit by Section 162 Criminal P.C. (Sae Nagendra Chendra 'Mohanty v. Kate of Orissa (1972) 2 Cut WR 1149).
12. There is no doubt that Kandhia met his death by the barchha blow on 19-6-1973 at about 3.00 p.m. The defence version about the occurrence has already been stated. From the prosecution evidence it is well established that immediately before the occurrence some incident took place in the field and Kandhia came and complained before the Sarpanch (P.W. 4) in presence of others. He was then in an angry mood. When the Sarpanch refused to go, Kandhia left the place exclaiming that whatever might happen he would forcibly remove the poles, This took place within 2.30 p.m. to 3.00 p.m. We have already held that no reliance can be placed on the eye witnesses and the extra-judicial confession. Thus prosecution has not come with a true story. Now it is to be considered whether the defence version can be relied upon. The statement of Dwari under Section 342 Criminal P.C. has been quoted previously. The statement of Dibakar is that he had been to the field with Dwari on that day and he was not present at the time of occurrence. According to Dwari the occurrence took place in the outer courtyard of Rajiba Setho. But the story is not the same as put forward by fihe prosecution. According to him the real story is what has beep narrated by him. From the facts and circumstances as discussed above, the defence story appears to be reasonably probable. The accused has not to prove his case beyond reasonable doubt. The Court has to judge from the materials on record whether the plea of the accused is based on probability which can be reasonably concluded by a prudent man, In the present case we find that the narration of incident as stated by Dwari appears to be more reasonable and acceptable. It is also evident from the testimony of P. W. 1 the at the deceased was well-built and was stronger than each of the accused persons.
13. From the evidence adduced in this case and the circumstances discussed above, we hold that prosecution has failed to establish the charges levelled against both the accused persons. The question then arises whether in view of the statement of Dwari under Section. 342 Criminal P.C. he can be held to have committed any offence. He admits that he pierced the barchha but he gives an explanation for the same. According to him when he did not find any other way out from the compound of Rajiba Setho and as such he had to return back and at that time he faced the deceased. At that time the deceased threatened him and pointed the barchha at his neck. Then he caught hold of the barchha and pressed it down. When the barchha was pressed down he gave three blows with his Tangia to the deceased to save his life. The deceased then caught hold of his Tangia and both of them struggled, In the course of struggle the Tangia slipped from his hand and at that time he caught hold of the barchha which was lying there and pierced the same. He was actually aiming the barchha at the shoulder of the deceased but when the deceased turned aside the barchha got pierced into the left side of the neck. No doubt conviction cannot be based on the statement of an accused made under Section 342, Criminal P.C. as it is not an evidence. But in certain circumstances this has to be considered vis-a-vis the evidence of the prosecution case. The statements made by the accused under Section 342 Criminal P.C. should be read as a whole. Such a statement should pot be dissected and considered only in part where that part is inextricably connected with the other part which is not taken into consideration (See Dada Rao v. State of Maharashtra : 1974CriLJ447 . It has also been held by a Bench decision of this Court in Gola Behera v. State (I. L. R. (1969) Cuttack SS7) that it is well settled that answers given by the accused under Section 342 Criminal P. C, must be accepted as a whole. Truncated parts of such answers must not be used for the purpose of convicting the accused. The Supreme Court has held in many cases that it is not open to a court! to dissect a statement of an accused and pick out the parts thereof which may be incriminating and then to support it by the evidence on record, In Narayan Singh v. State of Punjab (1964) 1 Cri LT 730 (SC) a case of the type before us was decided by the Supreme Court. It was held that by Sub-section (3) to Section, 342 Criminal P.C. the answers given by the accused may 'be taken Into consideration' at the enquiry or the trial. If the accused person in his examination under Section 342 Criminal P.C. confesses to the commission of the offence charged against him the court may, relying upon that confession, proceed to convict him, but if he does not confess and in explaining circumstances appearing in the evidence against him sets up his own version and seeks to explain his conduct pleading that he has committed no offence. the statement of the accused can only be taken into consideration in its entirety, It is pot open to the court to dissect the statement and to pick out a part of the statement which may be ineriminatiye, and then to examine whether the explanation furnished by the accused for his conduct is supported by the evidence on the record. If the accused admits to have done an act which would but for the explanation furnished by him be an offence, the admission cannot be used against him divorced from the explanation.
In the aforesaid Supreme Court case the courts below were of the view that the prosecution evidence as it stood, was insufficient to bring home the charge against the accused and the evidence was found to be unreliable. The accused admitted that he has caused injuries with a kirpan carried by him but he explained that he caused the injuries when he was thrown down and the deceased was attempting to strangulate him. It was held that there can be no doubt that if a person reasonably apprehends that his assailant is attempting to strangulate him, exercise of right of defence of person extends even to causing death of the assailant. In that case the accused pleaded that he had fallen down and the assailant attempted to strangulate him and therefore he caused injuries to the deceased in exercise of right of self defence. The Supreme Court held that this plea has to be considered as a composite plea. It was not open to the court to investigate whether the accused would have reasonably apprehended such injury to himself as justified him in causing death of the other assailant. It was further held that where a Person accused of committing an offence sets up at his trial a plea that he is protected by one of 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. If the plea amounted to admission of fact and raised a plea of justification, the Court could not proceed to deal with the case as if the admission of fact which was not part of the prosecution case was true, and the evidence did not warrant the plea of justification.
14. In view of the aforesaid dictum of the Supreme Court the explanation of justification given by Dwari cannot be ruled out, It is in evidence that the deceased was stronger than Dwari, When the spear has already been aimed at his neck and he pushed it down and gave some blows with the Tangia, naturally the deceased must have been enraged. This was followed by struggle to pull out the Tangia. When the Tangia slipped out of the hands of Dwari, he had every reason of apprehension of danger to his life. In such circumstances he used the spear which was lying down. He has explained that he aimed the spear at the shoulder. But as the deceased turned aside it suddenly struck against his neck. In view of this explanation which we have no basis to reject, we hold that Dwari was justified in exercising the right of defence of his person and in course of that he has killed Kandhia and his act is protected by right of private defence of person and it does not amount to exceeding right of private defence.
The above fact is also reinforced by Dwari's bona fide conduct that immediately after the occurrence he went to the out-post with the Tangia and the barchha and produc- ed the same before the police officer. His explanation that Dibakar was also accompanying him but on the way he remained back for the purpose of easing and reached the police station a little later, has also been amply corroborated by prosecution evidence. The contention of the prosecution that one of the witnesses has identified the barchha to be belonging to the accused will be of 10 avail in view of the circumstances and facts and evidence discussed above. Therefore, we hold that Dwari also cannot be held to have committed any offence on the basis of his statement under Section 342, Criminal P.C.
15. In the result, Criminal Appeals Nos. 113 and 130 of 1975 are allowed and the Death Reference No. 2 of 1975 is discharged, Both the appellants Dibakar and Dwari are acquitted of the charges levelled against them and they are directed to be set at liberty forthwith.
S.K. Ray, J.
16. I agree.