B.K. Acharya, J.
1. This is an appeal under Section 417 of the Code of Criminal Procedure against the judgment of the Additional Sessions Judge, Sambalpur acquitting the accused in the Court below (respondent herein) of the charge under Section 302 of the Indian Penal Code.
2. The prosecution case, in short, is that on 22-9-1968, by about mid-day, the accused, following a quarrel with his wife, Gouri Dei, assaulted her with a Lathi to death.
3. The accused, both in the committing Court as also in the Sessions Court, consistently pleaded not guilty to the charge, and denied the entire prosecution case against him. He, however, stated in his statement before the Sessions Judge that he had some difference and quarrel with his wife, the deceased, on the date of occurrence and on account of that his wife took poison and died on the same day.
P. W. 7, the father of the deceased, lodged the First Information Report (Ext. 1) at 6 P. M. on 229-68 on whatever information he could gather from the neighbours and villagers of the accused about the death of his daughter, the deceased.
4. The trial court on a lengthy consideration of the evidence on record has acquitted the accused of the charge under Section 302, IPC on the finding that it is not established on the prosecution evidence that the death of the deceased was caused due to assaults on her by the accused. He finds that on the evidence on record it is established that the accused assaulted his wife only with M. O. I., a light bamboo pipe one foot long and four inches in girth, meant mostly for blowing air into ovens. On that finding he has convicted the respondent under Section 323, IPC Considering that fact along with other facts and circumstances of the case and the positive evidence of the doctor, P. W. 10, to the effect that the only grievous and fatal injury on the head of the deceased could not have been caused due to a stroke with M. O. I., the Court below has acquitted the accused of the charge under Section 302, IPC This appeal is directed against this order of acquittal.
5. P. W. 10, the doctor, held the postmortem examination on the deadbody of the deceased Gouri Dei on 24-9-68 at 10.30 a. m. and found the following external injuries.
(1) One bruise length 4' X 2.1/2' breadth present on the left parietal region.
(2) One bruise length 3.1/2' X 2' breadth present on the right parietal region.
(3) One bruise length 3.1/2' X 2' breadth present on the left side chest.
(4) One bruise length 3' X 2' breadth present on the lateral aspect of the left leg.
(5) One bruise length 2' X 1' breadth present on the anterior aspect of the left knee joint.
(6) One bruise length 2' X 1' breadth present on the calf of the left leg.
On dissection he found under injury No. 1 extravasation of blood in the underlying tissues and fracture of the parietal bone, 2' in length near the pterion. By opening the cranium he found separation of the dura from the inner plate of the cranium and there was congestion at that place. He also found that there was extravasation of blood in the tissues underlying all 'he other five injuries. According to him enjury No. 1 only was grievous and ;l other injuries Were all of simple nature. All the injuries were ante-mortem in nature, and the death was probably due to the intra-cranial injury, haemorrhage and shock as a result of the head injury No. 1. That injury according to him could have been caused by a hard and elongated object like M. O. Ill and not by M. O. i. He opined that injury No. 1 in the ordinary course was likely to cause the death of the deceased. From his evidence in Court and the post-mortem report (Ext. 5) it is quite clear that the deceased died because of injury No. 1 on her head. Accordingly the death of the deceased was homicidal.
6. In Laxman Kalu Nikalje v. State of Maharashtra : 1968CriLJ1647 , it has been laid down:
We may say here that it is now the settled law that the powers of the High Court in an appeal against the acquittal are not different from the powers of the same Court in hearing an appeal against a conviction. The High Court in dealing with such an appeal can go into all questions of fact and law and reach its own conclusions on evidence provided it pays due regard to the fact that the matter had been before the Court of Session and the Sessions Judge had the chance and opportunity of seeing the witnesses depose to the facts. Further the High Court in reversing the judgment of the Sessions Judge must pay due regard to all the reasons given by the Sessions Judge for disbelieving a particular witness and must attempt to dispel those reasons effectively before taking a contrary view of the matter. It may also be pointed out that an accused starts with a presumption of innocence when he is put up for trial and his acquittal in no sense weakens that presumption and this presumption must also receive adequate consideration from the High Court.
The above view has been reiterated in the recent decision of the Supreme Court reported in : 1972CriLJ1286 ; (Garib Singh v. The State of Punjab).
7. The prosecution has examined as many as eleven witnesses. P. Ws. 1 and 2 have deposed to the fact that they got in- formation about the incident from one Pra-sanna, i'-c brother of accused, who has not been ex;nined in this case. Accordingly, their evidence is hearsay and is absolutely of no avail for the prosecution. The learned Counsel for the State has not referred to their evidence for any purpose whatsoever.
P. Ws. 3, 4 and 5 are the eye-witnesses to a part of the occurrence. P. W. 6 is a witness to the seizure of M. O. I., the bamboo pipe. P. W. 7 is the father of the deceased who lodged the First Information Report on receiving information from others. P. W. 8 prepared the spot map as desired by the Investigating Officer. P. W. 9 is the constable who escorted the deadbody to the hospital for post-mortem examination and P. W. 10, as stated above, is the doctor who held the post-mortem examination, and P. W. 11 is the Investigating Officer in this case.
8. P. W. 5 has admitted that there was a party faction in the village and the accused and P. Ws. 3 and 4 belonged to two rival groups in the village. P. W. 6, in his cross-examination, has stated that P. Ws. 3 and 4 were inimically disposed towards this accused. It has been elicited from P. W. 4 that on the report of the accused, P. W. 4 and his brother Kunja were prosecuted by the Police four or five years prior to the occurrence.
From the above it is quite clear that P. Ws. 3 and 4 were ill-disposed towards the accused. But on this ground alone I cannot throw out their evidence from consideration. It is the settled law that the evidence of such witnesses has to be examined, assessed and sifted with extreme caution and care, and if the same stands the test of scrutiny, it can be acted upon. Mechanical rejection of such evidence on the sole ground that it is partisan would lead to failure of justice. In the present case, apart from the evidence of P. Ws. 3 and 4, we have, on record, the evidence of P. W. 5 to the same effect, against whom, there is even no suggestion of any enmity or interestedness. Nothing even is stated as to why he should have perjured against the accused. On a careful perusal of the evidence of P. Ws. 3, 4 and 5 we find that all that has been deposed to by P. Ws. 3 and 4 gets sufficient support and corroboration on material particulars from the disinterested evidence of P. W. 5. P. Ws. 3 and 4 state that they were sitting in the house of P. W. 3. P. W. 5 also came there. The house of P. W. 3 is at a short distance from the house of the accused, being intervened by the village path. All these three witnesses in a very consistent and coherent manner have stated that while they were sitting in the house of P. W. 3, they heard accused Giridhari quarrelling with his wife, the deceased. After some time, they heard the sound of beating with fist blows and the cry of the accused's wife from the house of the accused, and so all these three witnesses rushed to the house of the accused. There P. W. 5 asked the accused as to why he was assaulting his wife. The accused without replying to P. W. 5 dealt two more blows with a bamboo pipe (M. O. I.) on the head of the deceased. All the three witnesses have very definitely and categorically stated that the accused assaulted the deceased with M. O. I., the small bamboo pipe one foot in length and four inches in girth. On receiving such assault, the deceased went inside her bed room. Thereafter all these three witnesses went away from that place to take their bath. After bath, when they came back to their respective houses, they came to learn about the death of the deceased. The evidence of P. Ws. 3 and 4 to the above effect gets ample corro-boration from that of P. W. 5, an independent and trustworthy witness. From their evidence, it is established beyond doubt that the accused assaulted the deceased only with M. O. I., and so his conviction under Section 323, IPC is well founded.
9. P. W. 10, the doctor, in his cross-examination has said, that the fatal fracture on the parietal bone of the deceased, referred to as injury No. 1 in his evidence, was the only injury which could have caused the death of the deceased, and that injury could not have been caused by a strike with M. O. I. This underlined portion of the doctor's opinion was not given for the first time in Court; he had given similar opinion also in his report Ext. 6/1 to the Investigating Officer. He has further stated in cross-examination that the shape and size of any of the bruises noticed by him on the dead-body of the deceased did not generally corroespond to the shape and size of M. O. I. M. O. I. is one foot long and 4 inches in circumference in the middle. It is a light bamboo Noli which generally is used for the purpose of blowing air into an oven. The doctor is a technical man, and his opinion to the above effect cannot be lightly brushed aside or whittled down without any convincing reasoning to the contrary. On seeing M. O. I., I am also inclined to accept the above-mentioned opinion of the doctor as correct and justified.
10. P. W. 11 in his cross-examination has stated that the shape and size of the bruise referred to as injury No. 1 generally tallied with the shape and size of M. O. Ill, a piece of wood 21' in length and 5' in circumference at its middle. M. O. Ill was seized from the house of the accused on 23-9-68. M. O. Ill was fixed to a ladder on one side, and the other side was kapt loose. P. W. 11 did not notice M. O. Ill on the previous day, when he held inquest over the deadbody and seized M. O. I and other articles lying near about the dead-body. The eye-witnesses do not speak anything with regard to M. O. Ill, nor there is anything in the prosecution evidence to show that M. O. Ill was utilised by the accused in assaulting the deceased. There was no stain of blood on M. O. Ill and there is absolutely nothing incriminating about it, nor there is anything in the prosecution evidence to connect M. O. Ill with the incident. Moreover, M. O. Ill formed a part of a ladder being fixed to it at one end, and there is nothing on record on which one can reasonably say that the accused could have used it for the purpose of assaulting his wife and then replaced it at its own place in the ladder. Any inference in that direction, without anything whatsoever on record to support the same, would be farfetched and conjectural. Apart from the above, there is no evidence that M. O. Ill was loosely fixed to the ladder so that it could have been easily taken out of the same, or that the said ladder was anywhere near about the place when the deceased was assaulted and/or lying dead. There is nothing on record as to why M. O. Ill was seized. On the above considerations it cannot at all be said that M. O. Ill was used for the purpose of inflicting the fatal blow on trw head of the deceased.
11. There is absolutely nothing on record on which it can be reasonably said that the accused could have used any other Lathi similar to M. O. Ill or good enough for the purpose of inflicting the fatal fracture on the head of the deceased. The only object with which the accused assaulted the deceased is M. O. I as deposed to by P. Ws. 3, 4 and 5. The Investigating Officer (P. W. 11) seized M. O. I on the date of occurrence soon after he held inquest on the deadbody, as can be seen from Exts. 9 and 13, respectively the inquest report and the seizure list. There is nothing else in evidence that the accused assaulted the deceased with anything other than M. O. I, M. O. I, could not have caused the fatal fracture. Thus the prosecution has not been able to establish beyond doubt that injury No. 1 was or could have been caused by the accused.
12. Apart from the above considerations, there is absolutely nothing on record, to show what actually happened at the house of the accused after P. Ws. 3, 4 and 5 left that place after witnessing only a part of the occurrence, as deposed to by them. There is also nothing on record to show that there was none else in that house who could have given the fatal blow on the deceased. It has been elicited fromP.W. 3 in cross examination that when he was coming away from the house of the accused he saw Prasanna, the brother of the accused, running towards his house, P. W. 4 has stated that while the accused and the deceased were quarrelling amongst each other, be (P. W. 4) found Prasanna, the brother of the accused, coming out of their house. Thus it is seen from the above evidence that the brother of the accused was near about the house of the accused at the time of the occurrence. His conduct in running towards the house of the accused at the relevant time is a significant feature, which when considered along with the fact that he gave a false information relating to the deceased to P. W. 7, the father of the deceased at his village thai very day, as seen from the F. I. R, creates suspicion against him. It is also seen from the evidence of P. W. 4 that when he went for the second time to the house of the accused after he learnt about the death of the deceased, he found the mother of the accused engaged in fomenting the deceased on the pretext that the deceased was then suffering from a disease called 'Jhimjhim Bata', though, the deceased actually had died by then. This conduct of the mother of the accused is also suspicious. All these also show that besides the accused there were other persons in and near about the house of the accused whose conduct and behaviour at the relevant time were not above board. Moreover, it is seen from the evidence of P, W. 5 that the accused came to the river to take his bath while P. Ws. 3, 4 and 5 were returning from the bathing Ghat, This shows that the accused was absent from his house for some time and was pursuing his normal course of daily life at that time. The doctor (P. W. 10) has also opined that injury No. 1 could have been caused by a fall or by striking against a hard and blunt substance. Such a possibility also cannot therefore be lost sight of.
13. From the above discussion of the evidence on record, it is difficult to say that the prosecution has established beyond reasonable doubt that it was the accused who caused the fatal injury on the head of the deceased.
14. It is no doubt true that the wife of the accused met with a homicidal death. But there is nothing on record, as discussed above, to connect the accused with the fatal blow on the deceased with reasonable certainty. Gajendragadkar, J., as he then was, in : 1957CriLJ1014 (Sarwan Singh v. State of Punjab) has observed that there may be an element of truth in the prosecution story against the accused, and considered as a whole, the prosecution story may appear to be true, but between 'may be true' and 'must be true', there is inevitably a long distance to travel, and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted.
15. It has been urged by the learned Counsel for the State that the false explanation given by the accused for the death of the deceased militates against the innocence of the accused. In view of all that has been discussed above the false explanation alone is of no avail or consequence in the facts of this case.
16. On the above considerations, I am satisfied that the prosecution has failed to establish the charge under Section 302, Indian Penal Code against the accused-respondent beyond reasonable doubt, and I do not find any convincing reason to differ from the conclusions arrived at by the trial court in this case.
17. I, therefore, do not find any merit in this appeal which is accordingly dismissed.
B.K. Ray, J.
18. I agree.