B.K. Behera, J.
1. The appellant with three co-accused persons, namely, Bachha Khatai, Batu alias Bhagawan Swain and Pampu alias Paramjit Sirtgh, stood their trial in the Court of Session at Sambalpur being charged under Section 302 read with Section 34, Penal Code (for short, the 'Code). The facts of the prosecution case and the plea of the defence of denial by the appellant and the co-accused persons have been set out in the impugned judgment. Briefly stated, the case of the prosecution was that owing to the rivalry between the members of the Shakti Club to which the deceased belonged and the members of the Bazar group including the appellant and the co-accused persons besides others, the deceased was chased and attacked on January 30, 1981, in the evening while he was coming from Kadampada side and assaulted in front of the hospital by means of lathis by the appellant and the co-accused persons for which he fell unconscious and was removed to the hospital at Hirakud where he was first treated and then he underwent an operation in the Medical College Hospital sit Burla and succumbed to the injuries received by him on that day following. On the basis of the first information report (Ext. 10) lodged by P. W. 12, the brother of the deceased, investigation was taken up and on its completion, charge-sheet was placed by the investigating agency. The appellant and the co-accused persons were prosecuted being charged under S, 302 read with Section 34 of the Code.
2. To bring home the charge, the prosecution had examined eighteen witnesses. Of them, P.Ws. 7 to 12 had figured as witnesses to the occurrence. P.Ws. 7 to 9 did not, fully support the case of the prosecution and did not implicate all the alleged assailants for which they were put leading questions by the prosecution under Section 154, Evidence Act. In support of the defence that the deceased had sustained a fatal injury as a result of a heavy dash at the door of one of the rooms of the hospital in the process of falling down and to substantiate its case of false implication owing to previous rivalry between the two groups, the defence had examined one witness.
3. On a consideration of the evidence, the learned Sessions Judge held that the death of the deceased was homicidal and not accidental in nature. The finding of the trial Court was that there was no evidence against the accused persons other than the appellant to sustain the charge. They were accordingly acquitted. The appellant has been found to have dealt the fatal blow on the person of the deceased which had resulted in his death and he has been convicted under S, 302 of the Code and sentenced to undergo imprisonment for life.
4. Appearing on behalf of the appellant, Mr. Rath has contended that the evidence adduced from both the sides coupled with the medical evidence would show that the death of the deceased was accidental in nature and his death could not be attributed to the assault by means of a lathi on his person by the appellant. It has been contended that the appellant could not be held guilty of murder or culpable homicide not amounting to murder, but could be convicted for voluntarily causing grievous hurt, if the evidence against him is accepted which ought not to have been. Mr. Indrajit Ray, the learned Additional Government Advocates, has supported the finding recorded by the trial Court against the appellant on the basis of the evidence of P.Ws. 11 and 12 and that of P. Ws. 8 and 10, but he has submitted and for the reasons t6 be stated hereinafter very fairly so, that evidence did hot warrant a definite conclusion that the death of the deceased was attributable to the assault on his person by the appellant especially as other accused persons were also alleged to have assaulted the deceased and had been acquitted. His contention is that the appellant can appropriately be convicted under Section 325 of the Code.
5. The first question for consideration would be as to whether the deceased had died a homicial death. P.W. 3 was the doctor who had first examined the deceased in an injured condition, P.W. 2 was the doctor who had undertaken the operation and who had spoken about the death of the deceased on January 31, 1981 and P.W. 1 had conducted the post-mortem examination over the dead body of the deceased on February 1, 1981 and had noticed a number of external injuries on the right forearm, right arm, right hand and fingers, left side of the trunk, occipital region and right temporal region, right parietal and temporal region, left cerebral surface and on the right cerebral cortex and had I noticed haemorrhage over whole of the left cerebral surface. There had thus been injuries on both the right and left sides of the person of the deceased. As his evidence would show, the injuries to the head and brain were sufficient to cause death in the ordinary course of nature which could be caused by means of a lathi.
6. Referring to and relying on the evidence of P.W. 2 that the injury on the head of the deceased was possible if some one dashed against a door frame or floor with sufficient force and that had there been a blow on the head by a lathi, there would have been an abrasion accompanied by bruises and an incised looking wound over the scalp having depth, length and breadth which was absent, Mr. Rath has contended for the defence that the deceased could not have sustained the injuries as sought to be estimated by the prosecution owing to assault on his head. P.W. 3 has opined that the injuries might have been caused either due to hit by a blunt weapon or dash against the hard surface or a wall. He has, however, stated that all the injuries noticed on the person of the deceased were not possible by one fall. As earlier indicated, injuries had been noticed at the time of autopsy on both the right and left sides of the person of the deceased. It would not stand to common sense, much loss to reason, that the injuries would have been caused by one fall. It was neither case of the prosecution nor that of the defence that the deceased had successive falls on the spot.
7. Law is well settled that use which the defence can make of the medical evidence is to prove that the injuries could not have been caused in the manner alleged and thereby discredit the eye-witnesses. Unless, however, the medical evidence goes so far that it completely rules out all possibilities whatsoever of injuries having been caused in the manner alleged by the eye-witnesses, the testimony of the eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence. Direct evidence, if satisfactory and reliable, cannot be rejected on hypothetical medical evidence. If there is conflict in the opinions of two medical witnesses, the opinion of that medical witness which supports the direct evidence is ordinarily to be accepted. The evidence of P.Ws. 1 to 3, taken as a whole and without being considered by picking out a few sentences here and there and keeping in mind the locations of the injuries, would lead one to a legal and reasonable conclusion that the death of the deceased was homicidal in nature. I would accordingly reject the contention raised on behalf of the appellant in this regard.
8. Before examining the evidence of the alleged witnesses to the occurrence regarding the complicity of the appellant, it may be kept in mind, as has been submitted at the Bar, that the order of conviction of the appellant under Section 302 of the Code is legally misconceived. He had been charged with some co-accused persons under Section 302 read with Section 34 of the Code and the co-accused persons have been acquitted. The acquittal of the co-accused persons of the charge under Section 302 read with Section 34 of the Code would not bar a conviction of another accused for the commission of the substantive offence of murder; if the evidence clearly points to a conclusion that the-death of the deceased is clearly attributable to an assault made on his person by that accused and in such circumstances, the person charged under Section 302 read with Section 34 of the Code can legally and properly be convicted under Section 302 of the Code. In the instant case, however, a wanton assault had been made on the person of the deceased, as alleged, by a number of persons including the appellant on different parts of his body. No clear and cogent evidence has been led by the prosecution that the appellant alone and no one else had hit the head of the deceased by means of a lathi. Cannot be said with certainty that the appellant's act of assault on the head of the deceased had resulted in the death of the latter.
9. As held by this Court in 1984 Cri LJ 833 : (1984) 1 Crimes 722 : (1984) 1 Orissa LR 317 : (1984) 57 Cut LT 312, Loknath Behera v. State, where death is caused, the degree of guilt of the offender depends on the intention or knowledge with which he did the act and the offences of which he may be convicted are murder, culpable homicide not amounting to murder, grievous hurt or hurt with variations on account of the weapon or the means used, the seat of assault, the provocation and so forth. If a person commits an act and the consequence beyond his purpose results, it is for the Court to determine how far he can be held to have the knowledge that by such act, he was likely to cause the actual result. When injuries have been followed by death and the question is what offence has been committed, it is not to be concluded by any backward reasoning at to the presumable intention or knowledge from the mere fact that the injuries caused did, in effect, result in death.
10. In the case of Banamali Pradhan v. State, (1985) 1 Crimes 460 (Orissa) two named persons stood charged for the commission of the offence of murder in futherance of common intention and one of them was acquitted. The medical evidence showed that more than one person were the assailants and more than one instrument had been used for causing injuries on the person of the deceased. There was no evidence as to who had caused the two fatal injuries. On the principles laid down in the case of Karnail Singh v. State of Punjab, : 1977CriLJ550 , it was held that the appellant could legally and appropriately be convicted under Section 326 of the Code for causing grievous hurt. The same principle would apply to the instant case in case of acceptance of the case of the prosecution against the appellant.
11. Regard being had to the assault on the person of the deceased by more than one person, as alleged, the case against the appellant, if accepted, would render him liable for causing grievous hurt within the meaning of Section 320 of the Code and he could not be convicted of any graver offence. The contention raised on behalf of the appellant in this regard and the concession made by the learned Government counsel are well founded and acceptable.
12. The next question for consideration is as to whether the evidence warranted a conclusion that the appellant had assaulted on the person of the deceased by means of a lathi.
13. There is, no doubt, some evidence and it is also the case of the defence that there has been rivalry between the two groups. The learned Sessions Judge has taken this circumstance as constituting the motive for the commission of the offence by the appellant. But as is well said, enmity or rivalry is a double-edged weapon. It can constitute motive for commission of an offence or a motive to implicate falsely a person of the rival group. In the absence of proof leading to a conclusion that the appellant was the assailant of the deceased, motive, however adequate, cannot sustain a charge against him. What is important, therefore, is to consider the evidence against him regarding the assault on the person of the deceased.
14. It is in evidence that after the occurrence, the appellant had made himself scarce and he was not available for arrest and on being produced by his father who had been deputed in search of him as testified by the Investigating Officer ^P.W. 18), the appellant was arrested on February 5, 1981. This circumstance, by itself, can be of no avail to the prosecution unless there is other evidence pointing to his guilt. When a finger of false accusation is raised, an innocent person may behave like a guilty one and may even leave his abode in order to avoid a false charge and harassment. Such is the instinct of self-preservation. Abscondance of the appellant even if it be assumed that he had absconded in the eye of law, could not be a guilt-pointing circumstance in the absence of other clear and acceptable evidence that he was the assailant of the deceased. The circumstance of abscondance may lend some assurance to the other evidence on which conclusion of guilt can be rested, but it can, by itself, be of no avail to the prosecution.
15. I would next come to the evidence of P.Ws. 8 and 10 to 12. Keeping in mind the facts that the deceased was a friend of P.W. II and brother of P.W. 12 and the faction between the two groups, the trial Court has analysed and scanned their evidence carefully and regard being had to the prevaricating statements made by P.Ws. 11 and 12 in their evidence and at the stage of investigation coupled with some false statements made by them to probabilise that evidence and make it acceptable which have been referred to in the body of the judgment and need not be restated, the trial Court has come to a finding that their evidence is a bundle of contradictions and their evidence is 'hopelessly discrepant, that too, on material particulars'. It has also taken into consideration the non-mention of the name of P.W. 11 as a witness to the occurrence in the first information report and the fact that for the first time, P.W. 12 had spoken about the presence of P.W. 11 at the time of occurrence while deposing in the Court and the unexplained belated examination of P.W. 1 in the course of investigation on February 5,1981, by offering an explanation which was not acceptable, the trial Court has held that their evidence is discrepant in material particulars and inconsistent. It has observed thus:..Since the evidence of P.Ws. 11 and 12 is discrepant on material particulars and since they are more or less interested in the prosecution, I would not have placed reliance on them and would have recorded a finding, as is done by me in the case of the other accused persons, that no case is made out as against accused Palai also, had the case of the prosecution been entirely based on their evidence. But that is not the case here. The prosecution has relied on P.Ws. 8 and 10 besides P.Ws. 11 and 12 in support of its case....
16. A reading of the judgment would give a clear indication that it is not a case where the trial Court has rejected a part of the testimony of P.Ws. 11 and 12 with regard to the complicity of the co-accused persons while holding their evidence to be reliable in respect of the appellant. Had that been done, their evidence can still be accepted against the appellant as even assuming that a part of the evidence of a witness is false, the other part which is found to be true can be accepted. The doctrine falsus in uno falsus in omnibus is not applied by the Courts in India and it is the duty of the Court to sift the grain from the chaff and truth from falsehood. In the instant case, however, for the reasons recorded by the trial Court in its judgment while considering the evidence of P.Ws. 11 and 12, it has indicated that the P.Ws. 11 and 12 are unreliable witnesses, although it has not, in terms, stated so. When the evidence of a witness is found to be unreliable and unacceptable, it cannot be rendered credible simply because there is some corroborative evidence. Tainted and unreliable evidence cannot be accepted by being corroborated by some other evidence. When the Court comes to the conclusion that a witness is an unreliable and untruthful person, the whole of his evidence must be thrown out. The trial Court was not justified, therefore, in accepting the evidence of P.Ws. 11 and 12 after bitterly criticising it by referring to and relying on some statements made by P.Ws. 8 and 10.
17. Coming, however, to the evidence of P.Ws. 8 and 10, it would be noticed that their evidence bristles with material discrepancies and improbabilities and contradictions at different stages. P.W. 8 had been put leading questions by the prosecution. There can be no dispute about the legal proposition to which reference has been made by the trial Court that the evidence of a witness who has been put leading questions by the party bringing him under Section 154, Evidence Act, is not to be discarded altogether and it is to be considered or what it is worth. In this connection, the trial Court has referred to and relied on the decisions of the Supreme Court reported in : 1976CriLJ295 , Sat Paul v. Delhi Administration. But a reading of the evidence of P.Ws. 8 and 10 would show that their evidence is not of any better character with regard to its acceptability than that of P.Ws. 11 and 12.
18. On his own showing, P.W. 8 has condemned himself by making irreconcilable statements at the stage of investigation and at the trial with regard to the complicity of the accused persons. At the trial, he has disowned his statement that all the four accused persons surrounded the deceased and assaulted him after the deceased fell down. He had not stated to the Investigating Officer, as testified by him in the Court, that while the deceased and Harjindar Singh (P.W. 11) were standing on the verandah of the Male Ward, the appellant and the co-accused Bachha came to them running and the appellant assaulted P.W. 1 and while the deceased was standing in front of the chamber of the lady doctor, the appellant assaulted him on his head with a lathi and the deceased sat down. Can his evidence still be accepted with regard to the assault on the deceased by the appellant? The only reasonable answer would be found in the negative.
19. P.W. 10 has testified thus :..On 30-1-81 at about 4.30 p.m. I had been to Hirakud hospital to get medicine for my daughter. While I was in the chamber of the male doctor, I heard 'GHO GHO' sound. We the patients were in queue I was the last man in the queue. So I came out of the chamber to the verandah and found many people running. In course of running one of the runners fell down in front of the chamber of the Lady Doctor on the verandah. Many people surrounded that man. Two of them assaulted that man who had fallen down. Subsequently I came to know the name of that man to be Prafulla Kumar Routrai. I could not identify the two persons who assaulted Prafulla as he was surrounded. In the meanwhile accused Palai came and raised his lathi to assault Prafulla. The lathi raised by him first hit the door of the chamber of the Lady Doctor and then hit the back side of Prafulla. Accused Palai dealt another lathi blow which hit the back side head of Prafulla. Prafulla placed his both hand on his head (affected portion) and then started running towards the Aluminium Company colony.
As stated by him in his cross-examination, he had been examined in the course of investigation by three police officers at an interval of two to three days. He had not stated at that stage that people surrounded the deceased after he fell and two of them assaulted him. As admitted by him, he did not tell about the incident to the parents and friends of the deceased who had come with the deceased to the hospital nor had he informed the police authorities of his own accord about the incident. Although he had himself received an injury by the throwing of a lathi, as claimed by him, it is strange that he did not even raise any hullah on the spot. The evidence of this witness that the appellant first dealt a blow which hit the door of the chamber of the Lady Doctor and then dealt two blows one on the backside of the deceased and the other on the backside of the head of the deceased is not in consonance with the evidence of the other persons who had been examined as witnesses to the occurrence. Although according to him, he had no enmity with the appellant, he did not even ask him as to why he assaulted the deceased and he did not even ascertain the name of the other assailants of the deceased. Regard being had to these suspicious features in the evidence of P.W. 10, his evidence could not be accepted even if the evidence of D.W. 1 that he was a member of the other group was not acceptable to the trial Court in the absence of other evidence in support of this assertion made by the defence.
20. It would thus be found that the evidence of P.Ws. 8 and 10 is itself not worthy of credence with regard to the complicity of the appellant and, therefore, could not corroborate any other evidence. It may be stated at the cost of repetition that when once the evidence of P.Ws. 11 and 12 is not acceptable because the witnesses have been found to be unreliable in character, their evidence was to be thrown out in toto and could not be accepted merely because of some other corroborative evidence and in the instant case, there was no other acceptable corroborative evidence.
21. For the foregoing reasons, no order of conviction can be passed against the appellant even for the lesser offence of voluntarily causing hurt to the deceased.
22. In the result, the appeal succeeds and is allowed, the order of conviction recorded against the appellant under Section 302, Penal Code, and the sentence passed against him thereunder are set aside. An order has been passed by this Court at the time of admission of the appeal for the release of the appellant on bail. If, for any reason, the appellant has not been released on bail in connection with this case, he be set at liberty forthwith.
P.C. Misra, J.
23. I agree.