R.N. Misra, J.
1. 58 persons, all belonging to village Jamunajharapada within the P.S. of Delang in the district of Puri were put on trial for several offences in Sessions Trial No. 16/32 of 1971. 19 of them have been convicted and have appealed to this Court. Appellants 1 to 5 have been convicted under Sections 302/149, 147 and 323 of the Indian Penal Code. Appellants 6 to 14 have bean convicted under Sections 147 and 323 of the Code. Appellant No. 15 has been convicted under Sections 147 and 324. Appellants 16 and 17 have been convicted under Section 148 and appellant No. 18 has been convicted under Section 147 while appellant No. 19 has been convicted under Section 323 of the Indian Penal Code. Those appellants who have been convicted under Section 302/149 have been sentenced to rigorous im-prisoment for life. For the other offences various and varying sentences of imprisonment have been awarded.
2. The prosecution alleged that at about 3'O clock in the afternoon on 30th of November, 1969, P. Ws. 8 and 24 who were two watchmen employed by P. W. 30 heard the sound of cutting of wood in the Bada-tota area. They, therefore, went over to the place along with three other servants of P. W. 30, namely, P. Ws. 4, 6 and 14. On their approach, they found that appellants 16 and 17 were cutting a Khirakoli tree and the accused persons along with many others had collected with arms to provide cover. When these two witnesses challenged the cutters, the accused persons immediately appeared on the scene and accosted the witnesses for unnecessary interference in the cutting. Lathi blows were inflicted on them by some of the accused persons and accused Hata (who has not been convicted) was alleged to have thrown acid on Nidhi. When the injured persons shouted more people from the village were attracted to the spot. Sahadev (P. W. 2) was one of the persons who arrived being attracted by the shout. As he arrived some of the accused persons gave lathi blows to him. His father Kartika Naik, who had also come went to rescue his son. It is alleged that appellant No. 1 dealt a lathi blow on his head as a result whereof Kartika fell down. Soon thereafter, it is alleged, Pravakar, Lingaraj and Madhab (appellants 2, 3 and 4 respectively) trampled over his body. P. W. 23, wife of Kartika, rushed to the spot for giving water to Kartika, but he could not swallow it and soon succumbed to his injuries. Several of the witnesses for the prosecution who had rushed to the spot were beaten up. Ultimately the fight subsided. P. W. 2 with the help of some villagers carried the dead body of his father from the spot to his house. The Grama Rakshi (P. W. 26) who came to know of the incident from P. W. 13 lodged the First Information Report (Ext. 28) at the Delang Police Station at about 7-30 P.M. in the same evening. In due course investigation was taken up. 12 of the accused persons were arrested and the others surrendered in Court.
3. The defence is one of denial. It is alleged that Badatota belongs to the State Government after abolition of the estate of P. W. 30. The villagers excepting the Bhoi Sahi people were grazing their cattle in the Badatota and were in possession of it. They had been disputing the claim of title and exclusive possession of P. W. 30 and the members of his family to the Badatota. It is alleged that at the instance of P. W. 30, some of his employees were cutting the Khirakoli tree on the date and the time of occurrence. Appellant No. 1 and some villagers went over there to protest. It is said that P. W. 30 was also present there with a gun and acid. The people of P. W. 30 gave a good beating to the villagers and as a result many of them were badly injured. In the mutual fight that followed many of the P. Ws. were also injured. On the basis of the counter F. I. R. (Ext. 46), a case was also instituted. Some of the accused persons took a specific plea of alibi.
4. At the trial on behalf of the prosecution 33 witnesses were examined. The defence also examined 6 witnesses. Apart from the voluminous injury reports to which reference shall be made in due course on both sides some other documents were exhibited.
Of the prosecution witnesses, P. Ws. 2 to 14, 17 to 22 and 24-20 in all-are said to have been injured by assault of the accused persons besides Kartika Naik haying died. In support of their injuries, the injury certificates have been exhibited. The postmortem examination report of the deceased has been exhibited as Ext. 25.
5. The learned trial Judge came to find that Badatota was in possession of P. W. 30 and the members of his family at the time of the occurrence. He was of the view that the injuries on the accused persons or at least on many of them had not been sustained in course of the same incident in which the members of the prosecution party were injured. He accepted the case of trampling following the assault on the deceased.He scanned the evidence with reference to each of the accused persons and ultimately held that the case had been established against 19 of the accused persons and proceeded to convict and punish them in the manner already indicated above.
6. Narayan Harichandan Mahapatra (P. W. 30) was the Ex-Intermediary of Jamuna-jharapada mauza. By 1953, the estate vested under Orissa Act 1 of 1952. It appears that P. W. 30 had leased out portions of the Badatota to members of his family. After vesting, proceedings under Section 5(i) of the Estates Abolition Act were taken and the leases were cancelled by the Collector under the Act. The various lessees, all belonging to his family, have appealed under Section 9 (1) of the Act and the said appeals were pending disposal before the appellate authority by November, 1969. The Additional District Collector, who was in seisin of the appeals had directed the local revenue officers to see that the trees standing on the disputed property may not be felled and removed.
In the Record-of-Rights published after the vesting the property which is said to have been covered by the leases have been recorded as communal lands as admitted by P. W. 30. In the settlement proceedings, P. W. 30 and the lessees had objected to such record and had claimed possession. The authorities, however, upon enquiry did not accept the objections and made the record as above. In the previous settlement Badatota had been recorded as jungle under Ana-badi holding and any lease out of it without the permission of the Collector was, therefore, prohibited under Orissa Act 1 of 1948. As it appears there had been long standing dispute over the claim relating to Badatota. All the villagers seem to have become one party while the local Harizans support P. W. 30. There does not seem to be any serious dispute that the villagers were grazing their cattle in the Tota.
There is no dispute that appellant No. 1 and P. W. 30 are the leaders of the respective groups-the appellant no. 1 leading the villagers and P. W. 30 leading his own party. There is evidence on record to show that there was dispute between the families of the two leaders for three generations. In local politics they had also turned out to be rivals.
7. We propose first to examine the two findings of the learned trial judge relating to possession of the Badatota and sustaining of injuries by the accused persons.
P. W. 30 in his evidence has admitted that only five acres of the Badatota land have been settled with him after abolition of the estate and he was growing Biali variety of paddy thereon. The Kirakoli tree cutting of which is said to be the basis of the dispute on material date was not within these Ac. 5.00, but was adjoining the paddy land. He has further admitted that the Badatota in the previous settlement record has been described as jungle in an Anabadi holding and in the Record-of-Rights finally published after the vesting of the estate, the Badatota has been recorded as Rakshit Anabadi. P. W. 30 has objected to the record before the settlement authorities, but upon investigation, the claim of possession of P. W. 30 was rejected. P. W. 30 has admitted that in proceedings Under Section 5 (i) of the Estates Abolition Act, his leases in favour of his relations have been cancelled and the lessees have appealed to the Additional District Collector of Puri. P. W. 30 has stated:
The accused persons are all along resisting my claim after abolition of the estate and they are always claiming the Badatota to be the Sarbasadharan land and they are raising a right to graze their cattle.
Under the provisions of the Orissa Communal Forests and Private Lands (Prohibition of Alienation) Act, 1948, 'forest land' has been defined to include 'any waste land containing shrubs and trees and any other class of trees declared to be forest land by notification of the Provincial Government.' In view of the record in the previous settlement, under the provisions of Orissa Act 1 of 1948, P. W. 30 was not entitled to give leases without previous sanction of the Collector. In proceedings under Section 5 (i) of the Estates Abolition Act, the leases have also been set aside. The final record of rights published after the abolition of the estate, as admitted by P. W. 30, describes the property as communal. The villagers have been claiming grazing rights over the property. There is a presumption attached to the correctness of the final record and in view of the admission of P. W. 30 that his claim of exclusive possession was negatived before the Record-of-rights was made final and in consideration of the presumption arising about the correctness of the entry, we find it difficult to accept the finding of the learned trial judge that Bada-tota where cutting of wood took place on the date of occurrence was in possession of P. W. 30. The prosecution has miserably failed to rebut the presumption arising from the settlement entry and the other circumstantial evidence. We would accordingly, in disagreement with the learned trial judge, hold that P. W. 30 and the members of his family were not in possession of the Bada-tota on the date of occurrence. On the other hand, it seems to be more appropriate to hold that the land was communal and the villagers were exercising grazing rights as claimed by them.
The next question for consideration is whether the accused persons received their injuries in course of the same incident. It is important to note that the number of injured persons on the defence side is also 20. From their injury reports (Exts. A to G, J to R and V) it is manifest that they sustained quite serious injuries. Many of them had grievous injuries on vital parts of their bodies. Some had acid burn wounds. From one of them a dying declaration had even been taken (Ext. H). The time of their injuries as given in the injury reports by the examining doctor clearly indicates that the injuries were also sustained in the afternoon of 30th of November 1969. The learned trial judge has not given any cogent reason as to why he came to the conclusion that the injuries on the accused persons were not received in the same incident. Having read the evidence and heard learned Counsel for parties, we have not the least hesitation in our mind that both parties sustained injuries in the same incident which took place in the afternoon of 30th of November. 1969.
8. According to the prosecution, the accused persons had come armed to the spot and two of them had been engaged in cutting the tree. According to the prosecution, the two watchmen (P. Ws. 8 and 24) came along with three other employees (P. Ws. 4, 6 and 14) to the spot and as soon as they raised objection they were beaten up. The prosecution case further is that people belonging to its party came in instalments and as and when they came and raised protest, they were being beaten up. This is not justified by the evidence on record. From the very beginning a large number of people from the prosecution party appears to have been present at the spot. The manner in which P. W. 2 is said to have come and the claim of the prosecution witnesses that when P. W. 2 was being beaten up, the deceased, his father, is said to have gone to rescue him and was also assaulted, seems not to be the correct state of affairs of the actual situation. In fact some of the prosecution witnesses themselves have given a different version of the matter which the learned trial judge has overlooked. P. W. 12, for instance, has said:
I saw Dhaneswar Raipitam (appellant No. 1) gave a lathi blow on Kartika Naik. When Sahadeb Naik went to rescue his father, I left the place....
From the evidence on record it transpires that there was a free fight and both parties had come to the spot prepared for the purpose. P. W. 11 before the committing Court as P. W. 7 had stated:
When I reached at the spot, I found many people were assaulting each other....
He has been confronted with this evidence. From the manner in which the incident has taken place, we have also no doubt that it was a free fight. Otherwise, so many persons on both sides could not have been injured in the manner they have been found to have been injured in the accident.
The defence plea that it was P. W. 30's men who had come to cut the tree and resistance came from the villagers which gave rise to the dispute appears to be more probable. The conduct of P. W. 30 as disclosed by his own evidence leads us to hold that he had attempted to exercise his right of possession at the material point of time knowing the prevailing situation and naturally resistance came from the villagers. The land is not at a great distance from the village and as the dispute started people from both parties were drawn to the place and became participants in the free fight of one side or the other depending upon the fact as to whose supporters they were.
The evidence regarding a specific lathi blow by appellant No. 1 on the head of the deceased and his being trampled over by four others-all convicted under Section 302/149 of the Indian Penal Code-appears to be unreliable. The deceased, as stated by P. W. 15, the doctor who conducted the post-mortem examination, was a Tuberculosis patient. Injury No. 1 on the dead body is said to be the result of the lathi blow inflicted by appellant No. 1. P. W. 15 in paragraph 9 of his evidence in cross-examination has stated that this injury indicated that the use of the lathi was with little force. The cause of deah has been opined by P. W. 15 to have been the other injuries found on his body, namely, the fracture of the ribs and the bruising of the apex of the heart and these are said to be the outcome of trampling. The prosecution case regarding trampling is very undependable. If actually the death was caused by trampling, we find no justification for absence of that part of the story in the F. I. R. We are alive to the fact that the F. I. R. may not contain all details of the incident, more so, when it has come from a person who is not an eye-witness to the occurrence. But if a man had really died by trampling normally such a feature could not have been omitted from the First Information Report. We have already indicated that the manner of assault and what followed thereafter immediately is not cogently spoken to by the prosecution witnesses. One of the P. Ws. has categorically stated that after the deceased fell down as a result of the blow dealt on his head by appellant No. 1, he was pulled by P. W. 2 on to his lap for being nourished. If that was true, there could be no trampling as alleged. Again, there appears to be considerable force in the argument of Mr. Patnaik for the appellants that even if the deceased did fall down as alleged, in the melee nobody took notice of his falling. Both sides were engaged in assaulting each other. There were a good number of people in the locality; participants were at least more than fifty or sixty. That being the position, without any intention to trample, the deceased may have been trampled over and if there was such trampling, no offence can be said to have been committed.
9. There is another important feature in this connection to be dealt with. Acid is said to have been thrown by the accused persons on the prosecution party. The injuries which have been established as relatable to acid-throw, clearly indicate that the real acid burn injuries have been sustained by the accused persons themselves. Excepting one or two instances where P. Ws. have small black marks on their body relatable to acid throwing, there are no substantial injuries on them as a result of acid throw. Learned Addl. Standing Counsel appearing for the State contended that in the melee when acid was thrown probably proper care had not been taken and, therefore, even though acid was thrown by some of the accused persons, their own people received most of the injuries as a consequence thereof. This argument does not impress us at all. From the medical evidence and the injury reports we find that the acid burn injuries are located on vital parts of some of the accused persons. The frontal portion of the body of those who have received acid burn injuries mostly has been affected. Keeping in view the number of persons sustaining acid burn injuries, places where acid burn injuries have been found and the evidence on that count, we hold that acid was really used by the prosecution party and not by the accused persons. Evidence has been concocted to implicate the accused persons as throwers of acid.
There is clear evidence to show that the village Jamunajharapada is a big one. A part of it is also the Bhoi Sahi whose residents support P. W. 30. As already indicated, there was acute rivalry between appellant No. 1 and P. W. 30 and both were trying to muster their strength. Badatota was one of the living points of dissension. Litigation over it was already pending. P. W. 30 had lost in his claims regarding Badatota and, therefore, his vanity had indeed been very much affected. There is evidence on record to show that the accused persons represent the 52 families of the village which belong to the group of appellant No, 1. It thus appears that attempt had been made to rope in one member at least from every family of the opposite faction. On the finding of the learned trial judge, the prosecution had not established its case against 35 of the accused persons implicated in the case. The local police and the unseen hands of P. W. 30 appeared to have made that possible.
10. Almost all of the prosecution witnesses are either P. W. 30's employees or men of his group. Undoubtedly they having been injured in the occurrence their competency as witnesses was not in doubt. But the question for consideration at this stage is what amount of weight has to be attached to their evidence. As already indicated above, the rivalry was acute and there was already a pending litigation at its final stage. There is a surprising feature in this case. P. W. 32, the Investigating Officer had admitted in paragraph 15 of his evidence:-
During investigation I came to know that some villagers were neutral and did not belong to any party. I did not examine such neutral persons.
We are surprised at the conduct of this Investigating Officer. The duty of the Investigating Officer was certainly to collect unimpeachable evidence about the occurrence. He knew that the village was divided into two active groups of opponents and if there were some neutral villagers available, it was certainly his duty to examine them to find out the truth. It is not his case that he did not examine such neutral persons because they had no knowledge of the occurrence. Admittedly the incident took place on the outskirts of the village and we are not prepared to accept the explanation offered by learned Additional Standing Counsel that when the two groups were fighting, the neutral witnesses must have remained within closed doors in their houses. That would be too much to surmise keeping in view the attitude of our villagers. The Investigating Officer has not only failed in his duty to collect the best evidence available, but he also seems to have been a willing party of the machinations of P. W. 30. There is evidence on record to show that in the counter case he allowed P. W. 30 to be released on bail in the village itself after arresting him. Ordinarily keeping in view the nature of allegations made in the case and its counter case that would have been difficult. As was indicated in Masalti v. The State of Uttar Pradesh : 8SCR133 there is no doubt that when a criminal court is to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence; whether or not the evidence strikes the Court as genuine; whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But it would be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villagers and murders are committed as a result of enmity between such factions, criminal courts have to deal with evidence of a partisan type. The mechanical rejection of this evidence on the sole ground that it is partisan, would invariably lead to failure of justice. But there can be no hard and fast rule laid down as to how such evidence should be appreciated. Judicial approach should be cautious in dealing with such evidence (Sic) has certainly to be looked with suspicion and adverse inference has got to be drawn against the prosecution. In view of the admission of the Investigating Officer, we indeed are not in a position to condone the lapse on the part of the prosecution in not bringing the evidence from untainted source before the court [to support its case. There are certainly instances where it would be difficult to accept any independent evidence. For instance, where within a closed premises an occurrence of murder by an intruder takes place during night, ordinarily the inmates of the premises would be the only witnesses. There the evidence has to be scrutinised with care to find out whether it can be acted upon and it would not be open to be discarded merely because it comes from the inmates of the premises, who are likely to support the prosecution case. Where, however, an occurrence of this type takes place in broad day light in the open field on the outskirts of a village and independent witnesses are available, the lapse on the part the prosecution in keeping away such evidence from the court would ordinarily be unpardonable.
11. Learned Additional Standing Counsel conceded that on the evidence on record we would not be unjustified in holding that it is a case of a mutual or a free fight and he was also prepared to accept the analysis of Mr. Patnaik that both the parties either came prepared for a fight or once the dispute started got ready for a free fight. In the case of Kanbi Nanji Virji v. State of Gujarat : 1970CriLJ363 , it has been indicated that where there is a melee at the time of the incident and the two groups indulged in a free fight resulting in injuries to persons of both groups, then only those persons who were proved to have caused injuries or death can be held guilty for the offence individually committed by them. On this basis, learned Additional Standing Counsel wanted us to examine the evidence regarding individual assaults and to convict the accused persons on the basis of our conclusion in that regard. In fact during the lengthy hearing of this appeal arguments were also advanced from respective sides on such basis.
Having analysed the evidence and the conduct of the prosecution, we, however, find such action hazardous in this case. We come to the conclusion that right from the beginning the prosecution witnesses have been giving a distorted version of the incident and the case placed before the Court is so distorted that it is difficult actually to form a clear impression of what exactly was the incident. In the very case referred to above, their Lordships of the Supreme Court were not prepared to act on the evidence of such witnesses and found fault with the High Court which relying on such evidence had come to find for the prosecution. Once we come to hold that it is not possible to come to any positive conclusion as to how the incident commenced, as there is no reliable evidence about it, we find it indeed difficult to act on some portions of the evidence of the witnesses where they have referred to individual blows on prosecution witnesses themselves.
12. The several injuries on the accused persons have not at all been explained by the prosecution. The learned trial judge did not seriously look for an explanation because he was of the view that there was no positive evidence to hold that the injuries were sustained in the same incident. That we have already reversed. We, therefore, find that the prosecution has failed to establish its case and it would be unsafe relying on the tainted evidence on record to hold that any part of its case has been established.
13. In view of the conclusion we have reached above, we have not thought it useful to examine the charge under Section 149 or the several other charges under Sections 324, 323 or 147 and 148 of the Indian Penal Code. We must, however, record our surprise at the learned trial judge's convicting two of the accused persons only under Section 148 of the Indian Penal Code.
14. We, therefore, allow the appeal, set aside the several convictions of the appellants and acquit them. Those of them who are in custody be released forthwith and in respect of the others, we direct their bail bonds to be cancelled.
B.K. Ray, J.
15. I agree.