S.C. Mohapatra, J.
1. Obtaining leave from this Court under Section 378(3) of the Code of Criminal Procedure, this appeal from an order of acquittal of the three respondents has been presented by the Public Prosecutor. The respondent No. 2 Chittaranjan Naik has been acquitted from the charge for an offence under Section 307, I. P. C. The respondent Bhagaban Naik and the respondent No. 3 Pravakat Naik have been acquitted from the charge under Section 115, I.P. C. for abetting Chittaranjan to commit the crime. Chittaranjan is the son of Pravakar and Bhagaban is an agnatic cousin of Chittaranjan. Accused-respondent Bhagaban is a school teacher.
2. Prosecution story, in short, is that on 31.8.1979 at about 10 A.M. accused Pravakar twisted both the hands of Bijay ( P. W. 5 ) from behind and caught hold of the same, accused Bhagaban caught hold of his tuft of hair and accused Chittaranjan caused stab injuries on Bijay. The injury on the belly of Bijay threatened his life.
3. The three respondents while pleading not guilty to the charges in their statements under Section 313, Cr. P. C. claimed to be ignorant of such injuries on P. W. 5 and explained that they have been made accused either on account of hostility or to cover up the offence committed by Bijay. However,, D. W. 1, the witness examined in support of defence stated that in a mutual scuffle between Bhagaban and Bijay, the latter fell down on the rough surface with broken glasses and tin pieces and he saw bleeding from the stomach of Bijay ( P. W. 5 ).
4. From the evidence of P. W. 9, the doctor who admitted Bijay to District Headquarters Hospital, Ext. 5 the bed-head ticket and the evidence of P. W. 7, the Surgical Specialist who operated .on the, wounds of Bijay (P. W. 5), it is cleat that he was admitted to the hospital at about 11.30 A. M. of 31. 8. 1979 with the following injuries :
(i) Incised wound on the anterior aspect of left shoulder joint Elliptical in size 2'x1' x1'. It was bleeding.
(ii) Abrasion 1/4' x1' over the top of right shoulder joint.
(iii) Perforating injury over the left side of the abdomen at
the level of umbilicus 3' away from the middle line. 1x1' abdominal cavity.
P.W.7, the Surgical Specialist opened the abdomen repaired the multiple injuries of the intestine and pushed the invest inside the belly. In his presence, his assistant stitched the wound on the left shoulder of Bijay (P W. 5 ) on his direction in the operation theatre. In the opinion of P. W. 7, the wound at the belly would have been fatal had the same not been attended to in time. There is, thus, no doubt that P. W. 5 ( Bijay ) sustained injuries in the forenoon of 31. 8. 1979.
5. The trial Court found that there was an occurrence between Bijay ( P. W. 5 ) on one side and accused Chittaranjan and Bhagaban on the other on 31. 8. 1979 at about 10 a. m. at Haladipada Bazar. It further found that the injuries on Bijay are not on account of fall. However, without making any attempt to trace out the cause of injuries on P. W. 5, the trial Court acquitted the three respondents on account of infirmities in the prosecution and embellishments in the evidence of P. Ws. 2, 4 and 5.
6. Nine witnesses have been examined to prove the prosecution case. P. W. 5 Bijay is the injured. P. Ws. 2 and 4 are the eye-witnesses. P.Ws. 7 and 9 are the Doctors to testify the injuries on P.W.5.P.W.3 is the witness to prove that he supplied the jeep in which P. W. 5 was carried. P. W. L is the father of the injured P. W. 5 who lodged the F. I. R.P. W. 6 is the police officer of Balasore Town Police Station to prove the admission of P. W. 5 in Balasore hospital and P. W. 8 in the Investigating Officer. Of the several documents exhibited, Ext. 4/1 the injury report of P. W. 5 Ext. 5 the bed-head ticket of P. W. 5 at Balasore Hospital and Ext. 8 the F. I. R. lodged by accused Bhagaban have some importance. In support of the explanation denying guilt, D. W. 1 has been examined on behalf of the respondents.
7. From the evidence of P. Ws 2, 4, 5 and D. W. 1, it is clear that accused Bhagaban on his arrival at Haladipada Bazar at about 10a.m.claimed from Bijay the cause of his confrontation with Chittaranjan earlier in that morning at Haladipada Bazar. D. W. 1 stated that on this Bijay (P. W. 5) gave a fist blow on the face of Bhagaban causing bleeding injury and there was mutual scuffle between the two. Some persons tried to intervene. P Ws. 2, 4 and 5 did not however utter a word about it in their examination-in-chief and denied the suggestion of any mutual scuffle in their cross-examination. They give a different story. Their statement is that on arrival, Bhagaban questioning Bijay gave fist blows on his face. P. W. 4 had stated before the Investigating Officer that there was a mutual scuffle as has been brought out from P. W. 8, the Investigating Officer. In cross-examination it has been stated by P. W. 4 that there was no mutual scuffle before arrival of Pravakar. P. W. 1 stated that he saw Bhagaban at the bus-stop shortly after the occurrence with bloodstains on his shirt and pant and Bhagaban told P. W. 1 at that time that Bijay caused the bloodstains on his wearing apparel. P. W. 8 stated that on recording Ext. 8, the F. I. R. lodged by Bhagaban against Bijay at 3. 30 p. m., he sent Bhagaban with requisition to Basta Primary health centre for examination. He seized M. O, III the shirt of Bhagaban and the seizure list (Ext. 7) discloses that there were bloodstains on the shirt. P. W. 9 the doctor, Ext. 4/1 the injury report and Ext. 5, the bed-held ticket and P. W. 7 the Surgical Specialist who operated P. W. 5 do not disclose any injury on the face of P. W. 5. Thus, it can safely be concluded that on being questioned by Bhagaban, Bijay (P. W. 5) gave a fist blow on the nose of Bhagaban causing bleeding injury which resulted in mutual scuffle between the two.
8. D. W. 1 has stated that several persons intervened and separated them. In cross-examination P. W. 2 stated that Radhakrishna Sahu intervened but failed. P. W. 4 also stated that Radhakrishna intervened but shifted the intervention to a subsequent stage. From the statement of D. W. 1 and P. W. 2 this much is clear that Radhakrishna intervened during the mutual scuffle between Bijay and Bhagaban.
9. D. W. 1 stated that during the scuffle Bijay fell down on the ground which is a rough surface containing .scattered broken glasses and tin pieces and after separation be found bleeding from the stomach of Bijay. P. W. 7, the Surgical Specialist accepted the suggestion in cross-examination that the wound on the belly could also be possible by a fall on rough surface having metallic projection such as iron projection, glass projection etc. and the other two injuries are also possible by a fall on a rough surface with metallic projection. However, no suggestion has been given to any prosecution witness that the ground where the mutual scuffle took place was a rough surface or that there was metallic projection. This part of the evidence of D. W. 1 is not acceptable. Trial Court has also rejected the theory of the injuries on Bijay being on account of fall. D. W. 1 found bleeding from the stomach on Bijay. Once the theory of fall is discarded and there is existence of injuries on Bijay, the version that there was separation of both Bhagaban and Bijay is also not ture since there is no cafe that after separation another incident took place.
10. P. W. 5 Bijay stated that during confrontation of Bhagaban with him, Pravakar arrived. He caught hold of the hands of Bijay from behind across his elbow joints. Bhagaban suddenly caught hold of the tuft of hair of Bijay. Chittaranjan who was there, brought out a knife from his pocket and caused the injuries. P. W. 4 also states that in course of altercation Pravakar arrived there and while Bijay was retreating to ward off the blows of Bhagaban, Pravakar caught hold of Bijay from behind crossing his hands across the arm pits and holding his hands tight backwards, Bhagaban caught hold of the of hair of Bijay. Chittaranjan picked up a knite from his pant pocket and caused the injuries on Bijay. P. W. 2 also stated that while the incident between Bhagaban and Bijay was continuing, Pravakar arrived. Bhagaban caught hold of the hair of Bijay and Pravakar caught of Bijay abreast. Chittaranjan picked out a spring knife from his pocket -and caused the stab injuries. All the three accused persons deny this occurrence in their statements under Section 313, Cr. P. C.
The trial court found that there was some occurrence between Bijay on one side and Bhagaban and Chittaranjan on the other. On careful perusal of the evidence of P. Ws. 2, 4 and 5, I find that no specific suggestion has been given in cross-examination to them that Pravakar was absent at the place of occurrence. To a suggestion to P. W. 2, he has stated that Pravakar did not assault Bijay. He caught hold of the hands of Bijay backwards, preventing movement of his hands and thereby disabling Bijay from offering resistance. The only legitimate inference is that on arrival at the place of occurrence Pravakar found the mutual scuffle between Bhagaban and Bijay with bleeding injury on Bhagaban. At that moment he restrained Bijay as has been described by P. Ws. 2, 4 and 5.
11. P. Ws. 2, 4 and 5 stated that the injuries of P. W. 5 on his belly and left hand shoulder by stabbing have been caused by Chittaranjan. There is also another abrasion on the right hand shoulder of P. W. 5. It is to be examined whether, the evidence of P. Ws. 2, 4 and 5 to this extent can be accepted beyond reasonable doubt.
12. Some infirmities in the investigation and suppressions, exaggerations and embellishments in the evidence of P. Ws. 2, 4 and 5 have been highlighted not to believe the evidence of these three witnesses. It is stated that appreciation of evidence of these three witnesses by the trial Court not to rely upon the same should not be disturbed in an appeal against acquittal.
13. It is true that ordinarily in an appeal against acquittal this Court should not interfere with the appreciation of evidence by the trial Court. The trial Court has found P. Ws. 2 and 4 to be tutored witnesses. I have already stated that part of the story given by these two witnesses also finds support from the evidence of D. W. 1 and is true. It cannot, therefore, be said that these two witnesses are tutored witnesses. This finding is mosc unreasonable.
14. There would be no witness in criminal trials whose evidence would not contain a grain of untruth or any exaggeration, embroidery or embellishment. The maxim falsus in uno, falsus in omnibus' is not attracted to criminal trials. Once there is existence of untruth, exaggerations, embroideries or embellishments in the depositions, the Court is to carefully scrutinise them to separate the truth from the untruth which in other words is said to be distinguishing a grain from the chaff.
15. P. W. 4 is not engrafted at the spot. The evidence of D. W. 1 clearly shows that P. W. 4 manages a grocery shop in Haladipada Bazar. There is no reason why he would involve Chittaranjan in the commission of the crime with whom he has no axe to grind. The suggestion that the grocery shop belongs to Bijay ( P. W. 5 ) which he manages is not sufficient to discard his evidence and his evidence fits into the stream of events. The injuries on Bijay (P. W. 5 ) also corroborate the version of P. W. 4.
P. W. 2 is a discharged Grama Rakhi and also an accused in a pending criminal case. There is no suggestion of his direct hostility with the accused persons or his interestedness with P. W 5 in any manner. His presence at the time of occurrence is stated by P. W. 4. No iota of material beyond the realm of suggestion is there to discard his evidence as being tutored.
16. The non-disclosure of the name of Chittaranjan by P. W. 5 at the earliest opportunity to P. W, 9 and his plea of being unconscious contradicted by P. W. 9 is highlighted to disbelieve the statement of P. W. 5 who had hostility with Chittaranjan. It is to be remembered that P. W. 5 was brought to the hospital at about 11.30 a. m. as disclosed from the bed-head ticket ( Ext. 5 ) with a grievous hurt by a stabbing instrument endangering his life. He was making statement with physical pain in an alarming condition. Non-disclosure of the name of Chittaranjan to P. W. 9 by P. W. 5 evasively indicates that somebody caused the injuries, but the same would not be a ground to discard his testimony. No suggestion has been given either to P. W. 7 or to P. W. 9 who are medical experts that the injuries of Bijay ( P. W. 5 ) would not be possible as narrated by P. Ws. 2, 4 and 5. The trial Court on assessment of evidence has come to the conclusion that Chittaranjan took part in the occurrence that occurred on 31. 8. 1979 at 10 a. m. at Haladipada Bazar. He is not an innocent person as he wants to explain.
Thus the infirmities in the evidence of P. Ws. 2, 4 and 5 are not sufficient in the circumstances of this case for having a doubt that Chittaranjan caused the injuries on P. W. 5.
17. The trial Court has suspected the prosecution because of non-examination of Radhakrishna, who, it is stated, intervened. Radhakrishna was a witness named in the charge-sheet. He was summoned to give evidence on 15. 10. 1980. For having attended Court, he has been paid his expenses as the records of this case disclose. The Public Prosecutor having declined, he was not examined. It cannot be said that Radhakrishna was withheld from being examined for oblique motive to suspect the truth in the prosecution story.
18. Inadmissibility of Ext. 1 being later in time is said not to be the First-Information-Report. However, inadmissibility of the information which is the basis of investigation will not affect the evidence of eye-witnesses __See A. I. R. 1979 S. C. 1831 (Somapra Vamanappa Madar Shankarappa Ravanappa Kaddi v. The Stale of Mysore) where it was observed in paragraph 12 at page 1836 :
'The rejection of Ext. P-9 as F. I. R. would not detract the testimony of the eye-witnesses which will have to be assessed on its own merits.'
19. Delayed discharge of P. W. 5 from the hospital which is given importance by the trial Court to suspect that the prosecution case is concocted is not acceptable in view of the emphatic denial of the suggestion in the cross-examination of P. W. 9 that he was pressurised for continuance of P. W. 5 in the hospital. The injury on P. W. 5 on his belly having endangered his life as stated by P. W. 7, the Surgical Specialist, makes it grievous hurt us provided in the Eighth Clause of Section 320, I. P. C. I am-not able to appreciate how the prosecution could have developed its case by delayed discharge of P. W. 5 from hospital.
20. Delayed examination of P. W. 5 by the Investigating Officer is also taken as a ground that the Investigating Officer concocted a story against the accused persons. Basta Police Station is far away from Balasore. Yet P. W. 8, the Investigating Officer visited the hospital on 3t. 8. 1979 and on 1. 9. 1979, It was not suggested that this was the only case being investigated by him. He has categorically denied the suggestion that he intentionally delayed in recording the statement of the injured. In the circumstance, much importance cannot be given to this fact.
21. The delay in receipt of Ext. 1 in the Court on 3. 9. 1979 is also made a ground. There is not much delay as to the receipt of Ext. 1. Once the evidence of P. Ws. 2, 4 and 5 is accepted, the defects pointed out would not affect the prosecution in any manner.
22. To conclude :
(a) There was hostility between the family of P. W. 5 on one side and the family of accused persons on the other who belong to the same village.
(b) On 30. 8.1979 Chittaranjan assaulted Ajay, the brother of P. W. 5 ( Bijay ).
(c) On 31. 8. 1979 in the morning Bijay ( P. W. 5 ) questioned Chittaranjan about the incident of the previous day.
(d) At about 10 a. m. of 31. 8. 1979, Bhagaban arrived at Haladipada Bazar and questioned Bijay ( P. W. 5 ).
(d) Bijay being questioned gave fist blows to the nose of Bhagaban causing bleeding injury.
(f) A mutual scuffle between Bijay and Bhagaban was the result.
(g) In course of mutual scuffle Pravakar arrived.
(h) Pravakar caught hold of both hands of Bijay from behind and incapacitated him from attacking Bhagaban.
(i) Bhagaban caught hold of the tuft of hair of Bijay (P.W. 5), and
(j) Chittaranjan caused the stab injuries on Bijay (P. W. 5) when he was completely incapacitated by Bhagaban and Pravakar.
23. Once P. W. 5 caused the bleeding injury on Bhagaban, in all probabilities Pravakar and Bhagaban in their attempt to incapacitate Bijay caught hold of his hands and the tuft of his hair. No offence has been committed by them by such acts and their acquittal is justified.
24. Chittaranjan cannot be convicted for committing an offence under Section 307, I. P. C. in the absence of any finding that he assaulted Bijay (P. W. 5) with the intention or knowledge of causing such injury to cause death of Bijay. From the evidence led in this case, I am not able to find out any such intention. However, the injury caused to Bijay at his belly by Chittaranjan being a grievous hurt, he would make him liable for an offence under Section 326, I. P. C.
25. In this case, it is to be considered what would be just and proper sentence to be imposed on Chittaranjan. In a Division Bench decision reported in A. I. R. 1941 Patna 51 (Bharat Dube v. Emperor), the accused a Police Constable, was convicted under Sees. 307 and 309, Indian Penal Code for having caused stab wounds on his superior officer and for attempting to commit suicide. He had brilliant past service records. Being frustrated to get his order of transfer cancelled he committed the offences. A sentence of rigorous imprisonment for one year only was imposed by the Division Bench.
26. In the present case, Chittaranjan a young-man of 20 years at the time of commission of the offence is to be imposed with a sentence. Since the date of occurrence, already more than five years have passed in the meantime and Chittaranjan is aged about 26 years now. In defence it is suggested that he is a collage student.
27. A stabbing instrument is not a normal companion of a college student. One of the reasons of penal sing an offender in criminal jurisprudence is to give caution to others in the society that they should desist from such wrong actions which affect the society itself. Here is, however, a case where P. W. 5, another young-man, is not an innocent bystander to be injured. He had his own contribution for the unfortunate event. It is submitted that Chittaranjan should be given a chance to rectify himself which is the modern philosophy of criminal jurisprudence provided under the Code of Criminal Procedure and the Probation of Offenders' Act. An offence under Section 326, I.P. C. attracts rigorous sentence for life and as such the provisions of the Probation of Offenders' Act are not attracted. The principle of criminal jurisprudence as provided under the Criminal Procedure Code is not applicable to this case. It will be encouraging the young educated men to freely move in the society with dangerous weapons for being used without restraint at any moment when there is chance for the same. After giving a slap by expressing 'Sorry' a person cannot be excused. I am conscious of the fact that in case of conviction in the trial Court, Chittaranjan would have an opportunity to have his say as provided under Section 235(2), Cr.P.C in respect of his sentence. Section 385, Cr. P. C, however, does not make a similar provision. Chirttaranjan was arrested on 2. 9. 1979 and was released on bail on 6.12.1979. No useful purpose would be served by sending him back behind the prison bars for a few months more which may have the colour of being retributive. In the peculiar circumstances of this case, imposition of substantive sentence for the period he was already detained and payment of Rs. 1500/- as fine would be just and proper. In default of payment of fine within the time he is called upon to deposit Chittaranjan shall undergo rigorous imprisonment for fifteen days.
28. In the result, the appeal is allowed in part, the order of acquittal of accused-respondent Chittaranjan passed by the trial Court being set aside. He is convicted under Section 326, I. P. C. and is sentenced to the period already under detention and to pay a fine of Rs. 1500/-(one thousand five hundred). In default of payment of fine, as aforesaid Chittaranjan shall undergo rigorous imprisonment for fifteen days.
The order of acquittal of accused-respondents Bhagaban and Pravakar having been confirmed, their bail bonds be discharged.
29. I record my appreciation for the able assistance rendered by Mr. Jairaj Behera, Additional Standing Counsel acting as the Public Prosecutor and Mr. S.K. Mund, the learned counsel appearing for the respondents.