Citation Codes

Equivalent Citations

citation codes

Case Number

CRA No. 207 of 1988 and CRA No. 210 of 1988

Disposition

Attorney(S)

(in CRA No. 207 of 1988):- Mr. Yasobant Das (Senior Advocate)
(in CRA No. 210 of 1988):- Mr. Devashis Panda
For State of Odisha:- Mr. Lalatendu Samantaray Addl. Govt. Advocate

Judges

S.K. Sahoo, J.

Acts

SECTION 323 PENAL CODE 1860
SECTION 25 PENAL CODE 1860
SECTION 134 EVIDENCE ACT
SECTION 299 PENAL CODE 1860
SECTION 342 PENAL CODE 1860
SECTION 304 A PENAL CODE 1860
SECTION 302 PENAL CODE 1860
SECTION 300 PENAL CODE 1860
SECTION 471 PENAL CODE 1860
SECTION 452 PENAL CODE 1860
ARTICLE 21 CONSTITUTION OF INDIA
section 164 of Cr.P.C. vide Exts.25, 26, 27 and 28.41. P.W.26
sections 304 Part-II/34 and 342/34 of the Indian Penal code
section 161 of Cr.P.C.,
158. Section 154 of Cr.P.C.
section 304 Part-II of the Penal Code, 1860.
section 342/34 of the Penal Code, 1860
section 164 of Cr.P.C.
section 174 of Cr.P.C.
section 471/34 of the Penal Code, 1860.
section 313 Cr.P.C.
section 202 Cr.P.C.
section 162 Cr.P.C.
sections 304/342/323/294/201/167/471/477-A/34 of the Penal Code, 1860.13.
Sections 157 and 159 Cr.P.C.
section 157 of the Code of Criminal Procedure.
section 161 Cr.P.C.
section 202 of Cr.P.C.
Rule 148(a) of Orissa Police Rules
sections 304, 342, 323, 294, 201, 167, 477-A, 471 read with section 34 of the Penal Code, 1860.2.
follows:13. Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300.
sections 302, 342, 323, 294, 201 read with section 34 of the Penal Code, 1860
section 162 of Cr.P.C.161.
sections 294, 201, 167 and 477-A read with section 34 of the Penal Code, 1860,
sections 294 and 506 of the Penal Code, 1860.
Section 300.12. Clause (b) of Section 299
section 201/34 of the Penal Code, 1860
section 477-A/34 of the Penal Code, 1860
Rule 90 of Orissa Police Rules,
section 324/34 of the Penal Code, 1860.
Section 157 Cr.P.C.,
section 324/34 of the Penal Code, 1860.247.
section 304/34 of the Penal Code, 1860,
section 162 of Cr.P.C.
section 167/34 of the Penal Code, 1860
section 304 Part-II read with section 34 of the Penal Code, 1860.224.
sub-section (1) of section 154 of Cr.P.C.
section 164 Cr.P.C.
section 304 Part II read with section 34 of the Penal Code,
section 294/34 of the Penal Code, 1860
section 164 of Cr.P.C.44. P.W.29 Balunkeswar
section 302 I.P.C.
section 323/34 of the Indian Penal code.Section 342/34 of the Penal Code, 1860:237.
section 323/34 of the Penal Code, 1860
section 324/34 of the Penal Code, 1860.Section 323/34 of the Penal Code, 1860:235.
section 304 Part II/34 of the Penal Code, 1860
section 471/34 of the Penal Code, 1860.246.
section 471/34 Penal Code, 1860.101.
sections 294/34 of the Penal Code, 1860
section 304 Part I or 304 Part II of the Penal Code, 1860,
sections 323/34 and 471/34 of the Penal Code, 1860
clause (b) of Section 299 and clause (3) of Section 300
sections 304 Part-II, 342, 323, 471 read with section 34 of the Penal Code, 1860.

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Smart Summary

Bench: S.K. Sahoo, J. — CRA Nos. 207 & 210 of 1988

Factual and Procedural Background

The two appellants, Pravat Chandra Mohanty (Pravat Mohanty) in CRA No. 207/1988 and Pratap Kumar Choudhury (P.K. Choudhury) in CRA No. 210/1988, were tried in Sessions Trial No. 246 of 1985 before the learned Asst. Sessions Judge-cum-Additional Chief Judicial Magistrate (Special), Cuttack, on a multi-count charge under sections 304, 342, 323, 294, 201, 167, 477-A, 471 read with section 34 of the Indian Penal Code, 1860.

The trial Court by judgment dated 29.08.1988 acquitted both appellants of charges under sections 294, 201, 167 and 477-A read with section 34, but convicted them under sections 304 Part-II, 342, 323 and 471 read with section 34. Sentences were imposed: rigorous imprisonment for five years on Pravat Mohanty and eight years on P.K. Choudhury for the offence under section 304 Part-II; additional concurrent sentences of three years (section 471), three months (section 342) and one month (section 323).

Appeals were filed and admitted with both appellants released on bail (Pravat Mohanty's appeal admitted 31.08.1988; P.K. Choudhury's appeal admitted 01.09.1988). The prosecution had relied upon an FIR (Ext.1) lodged by Kusia Nayak (P.W.1) and a large body of oral and documentary evidence, including post-mortem (Ext.43), scientific reports, seizure lists and inquest reports (Exts.15,16). The trial involved contested issues about the timing, location and cause of injuries to the deceased (Kasinath), whether custodial assault occurred inside Purighat Police Station, alleged fabrication/forgery of certain police records and FIRs, and credibility of the solitary eyewitness P.W.1.

Legal Issues Presented

Whether the prosecution proved that the deceased sustained the ante-mortem injuries inside Purighat police station and whether appellants inflicted those injuries.
Whether the evidence of the solitary eyewitness (P.W.1) was reliable and sufficient to convict, particularly in light of contradictions with earlier statements and medical evidence.
Whether the defence version that the deceased was assaulted on the Kathajori river embankment (and presented an FIR of his own) is true or fabricated.
Whether certain police documents (case diaries, seizure lists, the F.I.R. in Purighat/Lalbag P.S. Case No. 272/1985 and inquest entries) were fabricated/forged and whether the appellants used them dishonestly (offence under section 471/34 IPC).
Whether the appellants were properly convicted of culpable homicide not amounting to murder under section 304 Part-II/34 IPC, and if not, what offences are sustainable on the material.
Whether the conviction under section 342/34 (wrongful confinement) is sustainable given the record of arrest/detention in connected case diaries.
Appropriate sentencing and compensation (if liability is established for custodial violence resulting in death).

Arguments of the Parties

Appellant P.K. Choudhury (Mr. Devashis Panda)

P.W.1 (star witness) is full of contradictions and made improvements between his FIR, 161 statements and court testimony; therefore his testimony cannot be relied upon implicitly.
Timing/distance evidence undermines P.W.1's account of arrival and stay at police station; other police and independent witnesses (P.W.8, P.W.9, P.W.11, P.W.12, P.W.11, P.W.12) do not corroborate assault inside station.
M.O.IV and M.O.VII (alleged weapons) were not shown to P.W.1 for identification and M.O.VII was not produced to the Scientific Officer—this weakens prosecution linkage of weapons to allegation.
Station diary entries (Exts. C–F) indicate a later arrival (around 10 p.m.), supporting the defence that the deceased came to lodge a complaint about an embankment assault at about 9 p.m.
Several relevant police personnel (diary in-charge P.K. Mishra, jeep driver Sk. Firoz, constables on duty) were not examined; investigating officer (P.W.39) should have examined them.
Inquest by Executive Magistrate (Ext.15) was not proved by calling the Executive Magistrate; hence Ext.15 should not be relied upon to discard Ext.16 prepared by appellant.
Alleged oral orders to I.O. and features around FIR timing are suspicious; overall trial adopted two standards for prosecution and defence and benefit of doubt should go to appellant.

Appellant Pravat Mohanty (Mr. Yasobant Das, Sr. Adv.)

P.W.1 is an agnatic relation of the deceased and an interested witness; he had motive and prior involvement in complaint (I.C.C. Case No. 28/85), so his testimony must be treated with caution.
Prosecution must stand on its own merits; weaknesses in the defence do not automatically validate the prosecution case.
Medical evidence (P.W.37) shows external injuries were superficial and the deceased had pre-existing heart disease; such injuries alone are not fatal and this undermines culpable homicide (section 299/300) allegations.
Allegations of fabrication of FIR/records (Ext.272/85 etc.) should be treated cautiously because the investigating officer submitted a final report in Case No. 272/85 indicating falsity.
Several material witnesses were not called; prosecution withholding witnesses and selective investigation make conviction unsafe.
Relied on precedent authorities (listed in the record) on solitary witness reliability, conflicts with medical evidence and improvements in statements to argue conviction unsafe.

State (Mr. Lalatendu Samantaray, Addl. Govt. Advocate)

Trial Court carefully analysed evidence; even if P.W.1 contains some contradictions, the "separation of grain from chaff" approach permits retaining reliable core of his testimony.
There is corroboration that the deceased arrived at the police station uninjured in the evening and was later taken to hospital moribund; scientific and medical evidence (blood stains, chemical reports, post-mortem) support custodial assault at the police station.
Defence documents and Case No. 272/85 were likely created later to explain away custodial detention and injuries; the prosecution's narrative fits the sequence of events and investigation by P.W.39.
Appeals should be dismissed; trial court conclusions are sustainable on the record.

Table of Precedents Cited

The table below records precedents expressly cited in the opinion, the legal principle as described in the opinion, and how the Court applied the principle to the facts of this case (as stated in the opinion).

Precedent	Rule or Principle Cited For	Application by the Court
Jagdish v. State of Haryana ((2019) 7 SCC 711)	Conviction on basis of a solitary eyewitness can be sustained if that testimony is reliable, cogent and convincing; heightened scrutiny required for solitary witness.	The Court applied the principle to require careful scrutiny of P.W.1's testimony, treating him as a solitary witness whose evidence must be clear and trustworthy before convicting.
Kathi Odhabhai Bhimabhai v. State of Gujarat (1993 Supp (3) SCC 421 : AIR 1993 SC 1193)	If testimony of injured witness conflicts with medical evidence, conviction on his sole testimony is unsafe.	The Court noted the principle when considering whether P.W.1's version conflicted with medical findings and used it to test P.W.1's reliability against medical evidence.
Lallu Manjhi v. State of Jharkhand ((2003) 2 SCC 401)	A sole eyewitness who is interested, whose court version departs substantially from earlier statements and is not corroborated by medical evidence, cannot safely ground a conviction.	The Court invoked this principle in assessing P.W.1 (an interested witness and relative) comparing his trial testimony with earlier statements and medical evidence before accepting parts of it.
Motilal v. State of Rajasthan ((2009) 7 SCC 454)	Authority cited among others on assessment of solitary witness and related evidentiary cautions (as part of doctrinal support).	The Court relied on the body of authority (including Motilal) to guide the approach of separating reliable core testimony from exaggerated/added material of P.W.1.
Govindaraju @ Govinda v. State ((2012) 4 SCC 722)	Where prosecution relies on testimony of a sole eyewitness, that evidence must be cogent, reliable and fit into the chain of events; it must be tested against other evidence.	Applied to check whether P.W.1's account fit the chain of events and whether corroboration (scientific, medical, circumstantial) supported the core aspects of his testimony.
Harbeer Singh v. Sheeshapal (ABC 2016 (II) 218 SC)	Omissions and improvements between 161 Cr.P.C. statements and court testimony may amount to contradictions; significance of omissions is a question of fact.	The Court applied this principle in evaluating omissions/improvements in P.W.1's evidence and treated some omissions as significant but not automatically fatal to his whole testimony.
Guman Singh v. State of Rajasthan (2019 Supp (2) CLT 402 (SC))	When witnesses are neither wholly reliable nor wholly unreliable, Court must look for corroboration in material particulars.	The Court placed P.W.1 in that intermediate category for certain parts of his evidence and looked for corroboration (scientific evidence, medical report, circumstantial indicators) for material particulars.
Rai Sandeep @ Deepu v. State of NCT of Delhi ((2012) 8 SCC 21)	“Sterling” witness — consistency of the core version from first statement to court is crucial; core should remain intact to rely without corroboration.	The Court used the concept to test whether P.W.1's core narrative (arrival at police station, subsequent injuries at station) remained intact despite improvements/exaggerations.
Sat Paul v. Delhi Administration ((1976) 1 SCC 727)	When witnesses are discredited and their evidence is shaken, their testimony (particularly about time/arrival) may be discarded.	The Court cited this authority when it discarded the testimony of some witnesses (P.W.9, P.W.11, P.W.12) whose accounts were found thoroughly discredited on cross-examination.
Arjun Marik v. State of Bihar ((1994) 2 SCR 265)	Forwarding of occurrence report/sending the FIR to Magistrate should be done "forthwith" under Section 157 Cr.P.C.; delayed forwarding can be suspicious but may be explained by evidence.	The Court considered the forwarding/dispatch timing of Ext.1 (FIR) and applied this principle to assess whether the FIR was ante-timed; it accepted prosecution explanation that Ext.1 was registered at 11 a.m. on 05.05.1985.
Sellappan v. State Of Tamil Nadu ((2007) 15 SCC 327)	Distinction between clauses of section 299/300: knowledge of victim's frailty can elevate culpable homicide to murder if assailant knew injury likely to be fatal; difference between "likely to cause death" and "sufficient in ordinary course to cause death".	The Court applied the doctrinal distinction in analysing whether appellants had the requisite knowledge or intention to sustain section 304 Part-II convictions; it concluded that knowledge of the deceased's diseased heart was not proved and injuries were not sufficient in ordinary course to cause death.
Kaushik v. State of U.P. ((2008) 14 SCC 479)	Elements required to invoke section 304 (Parts I & II): death caused; death caused by accused's act; intention or knowledge as required by Part I or Part II respectively.	The Court applied the elemental test to conclude that while death and bodily injury were proved, the requisite knowledge under part II (that injury was likely to cause death) was not established against the appellants.
State of W.B. v. Mir Mohammad Omar ((2000) 8 SCC 382)	Cautionary principle: courts routinely find lapses in investigation; criticism of investigating officers is common when acquittals follow; flaws do not automatically negate prosecution case.	The Court cited this authority in rejecting the argument that alleged lacunae in investigation automatically entitled appellants to benefit of doubt; it held non-citation of certain witnesses and some procedural imperfections did not vitiate the prosecution case.
Nilabati Behera @ Lalita Behera v. State of Orissa ((1993) 2 SCC 746)	Custodial violence and fundamental rights: victims (and next of kin) can be awarded compensation; custodial injuries require State explanation and may attract public law remedies.	The Court invoked the principle when awarding Rs. 3,00,000/- as compensation to the legal representatives of the deceased for custodial violence leading to death.
Maniram v. State of Rajasthan (1993 Supp (3) SCC 18 : AIR 1993 SC 2453)	Medical evidence on digestion and time of death: digestion rates vary and medical opinion is not decisive without context.	The Court relied on the general principle to reject an argument that post-mortem findings of undigested food conclusively disproved the prosecution timeline; it observed digestion varies person-to-person.

Court's Reasoning and Analysis

The opinion proceeds in a structured factual and evidentiary analysis, addressing discrete issues (labelled A–J in the text). The Court applied established principles about the treatment of solitary witnesses, the effect of contradictions/improvements and the role of corroborative scientific and medical evidence. Below is a stepwise synthesis of the Court's reasoning as recorded in the opinion.

1. Evidence of attendance at Purighat police station and calling by Havildar (whether P.W.8 was sent)

- The Court accepted that Havildar Brahmananda Behera (P.W.8) was sent to the Basti to call the deceased and P.W.1 (based on combined evidence of P.W.1, P.W.7, P.W.18 and P.W.20), but rejected the more specific claim by some witnesses that the Havildar personally escorted them to the station. The Court observed lack of a command certificate did not by itself negate the oral evidence that P.W.8 visited the Basti.

2. Timing: when the deceased and P.W.1 left the Basti and arrived at the police station

- The Court scrutinised discrepancies in P.W.1's statements about leaving time (4:30 p.m., 7:00 p.m., 7:30 p.m.). It found the prosecution's core position that both left after sunset (about 7:00–7:30 p.m.) to be acceptable based on P.W.1, P.W.7 and P.W.20. Several witnesses (P.W.9, P.W.11, P.W.12) who gave later arrival times were discredited and their testimony discarded after cross-examination.

3. Reliability of P.W.1 (solitary eyewitness)

- The Court noted P.W.1 was an interested witness (agnatic relation) and had prior court involvement (I.C.C. case). It applied precedents on solitary witnesses: P.W.1's evidence required heightened scrutiny. The Court identified material contradictions between P.W.1's FIR, 161 statement and trial testimony (notably, details and numbers of blows/kicks and some descriptions of injuries), but concluded that not all of P.W.1's evidence was to be thrown out. The Court adopted the "separate grain from the chaff" approach: core aspects consistent with the FIR and supported by other circumstances could be acted upon.

4. Corroboration: scientific evidence, post-mortem and seized material

- Scientific Officer (P.W.2) found blood stains on the police station floor, the jeep and on a bamboo lathi (M.O.IV) collected at midnight; chemical reports detected blood in samples taken from the station floor. The post-mortem (P.W.37, Ext.43 & related opinions) recorded multiple ante-mortem injuries (mainly abrasions/bruises below the waist), regurgitated/undigested food obstructing air passages, and marked cardiac disease. Medical opinion concluded death proximate cause was asphyxia from regurgitated stomach contents (choking) that could have been precipitated by failure of an already diseased heart; injuries were, by themselves, not directly fatal in ordinary course.

5. Defence's embankment-assault story and the separate FIR (Purighat/Lalbag P.S. Case No. 272/1985)

- The defence asserted that the deceased had been assaulted on the Kathajori embankment and himself lodged an FIR (case 272/1985). The Court found no reliable oral evidence supporting an embankment incident; handwriting comparison and expert opinion disfavoured the disputed signature (Ext.A) as the deceased's hand. The Court found numerous irregularities in case diary entries and seizure lists attributed to appellant P.K. Choudhury (Ext.23/3 and Ext.42), and concluded the 272/1985 case and related documents were false or paper transactions in important respects.

6. Fabrication/forgery and section 471

- The Court accepted that some documents (the disputed FIR Ext.A/272/85, certain seizure lists, and parts of the case diary entries) were fabricated or unreliable. It held appellants used forged documents as genuine in furtherance of a common intention to explain away detention and injuries. On that basis the Court sustained conviction under section 471/34 IPC as recorded in the opinion.

7. Whether evidence sustains Section 304 Part-II conviction

- The Court applied the legal test for section 304 (Parts I & II): it examined whether the accused had intent or knowledge that the act was likely to cause death. While the Court found appellants responsible for causing ante-mortem injuries in the police station, the injuries were primarily superficial and on non-vital parts; there was no proof the appellants had knowledge of the deceased's diseased heart or that the injuries were likely to cause death. Given medical opinion attributing death to choking precipitated by cardiac disease and stress, the Court concluded the material did not sustain section 304 Part-II convictions and set those convictions aside.

8. Convictions the Court sustained or substituted

- The Court upheld convictions under sections 323/34 (voluntarily causing hurt) and 471/34 (using forged documents). It also convicted both appellants under section 324/34 (voluntarily causing hurt by dangerous weapons) in substitution for the section 304 Part-II convictions which were set aside.

9. On section 342 (wrongful confinement)

- The trial Court had convicted under section 342/34. The appellate Court found that the record indicates the deceased and P.W.1 were arrested in connection with Purighat/Lalbag P.S. Case No. 269/1985 and detained; therefore, the appellate bench set aside convictions under section 342/34 (concluding that wrongful confinement was not established as alleged).

10. Investigation lacunae and non-examination of witnesses

- The appellants criticised investigative gaps and non-examination of several police staff and independent persons. The Court reviewed these complaints in the light of established authority (Mir Mohammad Omar) and concluded that while imperfections and omissions existed, they did not fatally vitiate the prosecution case. The Court also observed that the defence could have invoked court power to summon particular witnesses but did not do so.

Holding and Implications

Core Ruling: CRIMINAL APPEALS PARTLY ALLOWED.

Direct holdings and operative consequences (as recorded in the opinion):

The trial Court's convictions of both appellants under sections 304 Part-II/34 and 342/34 IPC are set aside.
The appellate Court upheld convictions under sections 323/34 and 471/34 IPC.
Both appellants were further convicted under section 324/34 IPC (substituted by the Court in place of 304 Part-II convictions).
Sentences imposed by the appellate Court (concurrent): simple imprisonment for one month for offence under section 323/34; simple imprisonment for three months for offence under section 471/34; simple imprisonment for one year for offence under section 324/34. All substantive sentences to run concurrently.
Bail status and surrender: appellants were on bail; their bail bonds were ordered to stand cancelled and they were directed to surrender before the trial Court within two weeks to undergo remaining period of sentence.
Compensation: The State Government was directed to pay Rs. 3,00,000 (rupees three lakhs) to the legal representative(s) of the deceased within one month as compensation for custodial violence and resultant death.
Records: Lower Court records to be sent back promptly to the trial Court with a copy of the appellate judgment.

Broader implications: The opinion does not purport to lay down a new legal precedent; rather, it applies settled evidentiary principles (treatment of solitary witnesses, relevance of medical and scientific corroboration, and the legal distinctions within culpable homicide/murder tests) to the facts. The decision modifies the legal characterisation of offences based on the evidence: it rejects the higher culpability (section 304 Part-II) on the record before it but affirms convictions for serious assault offences and for dishonest use of forged documents, and awards compensation for custodial violence.

Disposition / Orders (as recorded)

Criminal appeals: partly allowed.
Convictions under sections 304 Part-II/34 and 342/34 IPC: set aside.
Convictions under sections 323/34 and 471/34 IPC: affirmed.
Additional conviction under section 324/34 IPC: recorded by appellate Court (substituted).
Sentences: simple imprisonment — 1 month (s.323), 3 months (s.471), 1 year (s.324); to run concurrently. Bail bonds cancelled; appellants to surrender within two weeks.
State to pay Rs. 3,00,000 to legal representatives of deceased within one month.
Lower Court record to be returned with this judgment.

This summary is prepared strictly on the basis of the provided opinion text. No facts, holdings or other details have been added beyond what appears in that text.

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Pravat Chandra Mohanty v. State Of Orissa .

S.K. Sahoo, J.:— The appellant Pravat Chandra Mohanty (hereafter ‘Pravat Mohanty’) in CRA No. 207 of 1988 and appellant Pratap Kumar Choudhury (hereafter ‘P.K. Choudhury’) in CRA No. 210 of 1988 faced trial in the Court of learned Asst. Sessions Judge-cum-Additional Chief Judicial Magistrate (Special), Cuttack in Sessions Trial No. 246 of 1985 for the offences punishable under sections 304, 342, 323, 294, 201, 167, 477-A, 471 read with section 34 of the Penal Code, 1860.

2. The learned trial Court vide impugned judgment and order dated 29.08.1988, though acquitted the appellants of the charges under sections 294, 201, 167 and 477-A read with section 34 of the Penal Code, 1860, however found them guilty under sections 304 Part-II, 342, 323, 471 read with section 34 of the Penal Code, 1860. The appellants Pravat Mohanty and P.K. Choudhury were sentenced to undergo rigorous imprisonment five years and eight years respectively for the offence under section 304 Part-II of the Penal Code, 1860. Each of the appellants was sentenced to undergo rigorous imprisonment for three years for the offence under section 471 of the Penal Code, 1860, rigorous imprisonment for three months for the offence under section 342 of the Penal Code, 1860, rigorous imprisonment for one month for the offence under section 323 of the Penal Code, 1860 and all the sentences were directed to run concurrently.

3. The appeal of the appellant Pravat Mohanty was presented on 30.08.1988 which was admitted on 31.08.1988 and he was directed to be released on bail on the same day. Similarly, the appeal of appellant P.K. Choudhary was presented on 31.08.1988 which was admitted on 01.09.1988 and he was also directed to be released on bail on the same day.

4. The prosecution case, as per the first information report (Ext.1) lodged by Kusia Nayak (P.W.1) on 05.05.1985 (Sunday) at 11 a.m. before the D.S.P., City, Cuttack(s) is that the informant was staying in a rented house of one Bishnu Mohanty of Rajabagicha, Cuttack. On 02.05.1985 he had been to Nayagarh in connection with the marriage of his nephew and returned home to Cuttack in the morning hours of 04.05.1985. After arrival, he was informed by his wife Kanchan Dei (P.W.18) that there was quarrel between their Basti residents Sura and Bainshi on Friday. He went to the market and returned at about 4 p.m. when his wife told him that Pramod Naik, Benu Naik and Guna Naik were abusing her in filthy language and telling her to drive out her family members as they had no houses and no holding numbers. The informant was also told by his wife that Thana Babu of Purighat police station had called him to go to the police station. After sometime, Kasinath Naik (hereafter ‘the deceased’) also told the informant that the constable had come and told him in that respect. Accordingly, both the informant and the deceased decided to go to Purighat police station. In the evening hours, when both of them reached at Purighat police station, one police officer having mustache told the deceased that on the next time, he would cause fracture of the hands and legs of the son of the deceased by assaulting him as the later had filed a case against him before the Legal Aid. The deceased remained silent. The said police officer also used slang language against the deceased and told that he belonged to Alisha Bazar, Cuttack and he would not allow the family of the deceased to stay at Cuttack and no lawyer could do anything to him. The deceased replied to the said police officer that on being assaulted, his wife and son had filed the case before the Legal Aid and he did not know anything in that respect.

5. It is further stated in the first information report that the said police officer having mustache gave a kick to the deceased and again used slang language and also gave two blows on the hands of the informant and also kicked him. Then said police officer having mustache further assaulted the deceased who cried aloud and in that process, he sustained bleeding injuries on his body. The informant was asked to wait in one room of the police station and the deceased was taken to the other side verandah of the police station and was assaulted. Though the informant was not able to see the assault but he could hear the cries of the deceased. Then the police officer called the informant outside and after he came out, he saw the appellant Pravat Mohanty assaulting the deceased by means of a stick and the deceased was crying aloud. The informant gave water to the deceased on being told by the police officer but the deceased was having no strength to walk and he was just crawling. The deceased came near the informant and he was having bleeding injuries on his hands and necks and the legs were swollen. The deceased was telling that he would not survive and would die. When the deceased sought permission to attend the call of nature, the police officer having mustache and appellant Pravat Mohanty further assaulted him. When the deceased again requested to attend the call of nature, with permission of the police officer, the informant took him for such purpose and after they returned, the appellant Pravat Mohanty asked the deceased as to why he was limping. The deceased was given bread to eat but when he refused, appellant Pravat Mohanty compelled him to take bread and further assaulted him on his knee. Getting indication from the constable, the informant concealed the bread and told the police officer that the deceased had already taken the bread. The said police officer brought liquor in a bottle and poured it in the mouth of the deceased as well as the informant and then sprinkled liquor over them and went outside of the police station. Sura Naik (P.W.13) who belonged to the Basti of the informant came to the police station and talked with one Mishra Babu secretly but on seeing the deceased and the informant, he went away. Then appellant Pravat Mohanty again assaulted the deceased and asked him to sit in a vehicle to go to the hospital. At that time, it was 11 to 12 O' clock in the night. The appellant Pravat Mohanty, a driver and a constable lifted the deceased and placed him inside the vehicle and he was crying that he would not survive. When the informant expressed his eagerness to accompany the deceased to the hospital, he was told that there was no necessity to accompany the deceased even though the deceased was calling the informant to accompany him. After the deceased was taken away from the police station, one constable chained the left leg of the informant to a table of the police station and in the morning hours, the informant was untied as per the instruction of the appellant Pravat Mohanty. One sweeper was called to the police station and he was asked to clean the blood and stool of the deceased which was lying at different places inside the police station. At that time the informant came to know that the deceased had died in the hospital last night. The widow of the deceased had also come to the police station crying but she was not allowed to stay there by the Havildar. It is mentioned in the first information report that the police officer having mustache was a fair and tall person.

6. On receipt of such first information report, Purighat/Lalbag P.S. Case No. 273 of 1985 was registered under sections 302, 342, 323, 294, 201 read with section 34 of the Penal Code, 1860 on 05.05.1985 at 11 a.m. against appellant Pravat Mohanty and the other police officer of Purighat police station having mustache.

7. As per the oral communication of the order of the Director General of Police, P.W.39 Gagan Bihari Mohanty who was working as Inspector, C.I.D., C.B., Cuttack proceeded to Lalbag police station, where he found the informant Kusia Naik (P.W.1) lodging the oral report before the City, D.S.P. which led to the registration of Purighat/Lalbag P.S. Case No. 273 of 1985. P.W.39 was directed by the Director General of Police to investigate this case and also to take over charge of investigation of two other connected cases i.e. Purighat/Lalbag P.S. Case No. 269 of 1985 which was registered at the instance of P.W.13 Sura Naik on 03.05.1985 and Purighat/Lalbag P.S. Case No. 272 of 1985 which was registered stated to be at the instance of the deceased on 04.05.1985 and the appellant P.K. Choudhury was the investigating officer of those two cases.

8. The appellant P.K. Choudhury was placed under orders of suspension on 05.05.1985 and appellant Pravat Mohanty was transferred. On 06.05.1985 P.W.38 Jayadeb Sarangi, S.I. of Police attached to Purighat police station took charge of investigation of Purighat/Lalbag P.S. Case No. 272/1985 from appellant P.K. Choudhury and on the death of the deceased, he intimated the learned S.D.J.M., Cuttack to convert the case to one under section 302 of the Penal Code, 1860. Accordingly, as per order dated 07.05.1985, the learned S.D.J.M. added section 302 of the Penal Code, 1860 in Purighat/Lalbag P.S. Case No. 272/1985.

9. During course of investigation in Purighat/Lalbag P.S. Case No. 273/1985, P.W.39 examined the informant (P.W.1) and then proceeded to Purighat police station which was situated by the side of Kathajori river embankment. He noticed blood stains on the floor of the office room, verandah of Purighat police station and also in the police jeep. He sent requisition to the Director of State S.F.S.L., Rasulgarh for sending the Scientific Officers for collection of physical evidence. At about 7.00 p.m. on 05.05.1985, he examined a constable (P.W.9) and then proceeded to S.C.B. Medical College and Hospital, Cuttack along with the informant and issued requisition for his medical examination and received the report of the informant from the Medical Officer on the same day. At about 11 O' clock in the night on 05.05.1985, he seized one white dhoti having stains of blood and stool (M.O.I), one Ganji having blood stains (M.O.II), one silver ‘deunria’ with thread (M.O. III) and one steel ring tied in a piece of torn dhoti (M.O.VI) under seizure list Ext.11 on being produced by Havildar Brahmananda Behera (P.W.8) of Purighat police station who had accompanied the dead body to mortuary and brought those articles after post mortem examination. One khaki half pant and khaki half shirt of the informant (P.W.1) were seized under seizure list Ext.12 from which smell of liquor was coming. Those pants and shirts were given in the zima of P.W.1 as per zimanama Ext.57. On the same day at about 11.45 p.m., the station diary entry book of Purighat police station maintained from 29.04.1985 to 05.05.1985, the command certificate book of the police station, one bamboo lathi having blood stain (M.O.IV), one wooden batten (M.O. VII) were seized under seizure list Ext.13. The Scientific team arrived at Purigaht police station around midnight on 05.05.1985 and inspected the spot and collected physical evidence. P.W.39 reached at Rajabagicha in the night and visited the Basti where the deceased and the informant were staying. He examined some witnesses and on 06.05.1985, he conducted some seizures including the police jeep of Purighat police station and gave the jeep in the zima of the driver of the police station under zimanama Ext.58. He also seized the sample packet collected by the Scientific Officer under seizure list Ext.9 and received the autopsy report on 06.05.1985. Since the deceased was working as a Jamadar in Cuttack Municipality at the time of occurrence, his admitted handwritings were seized under seizure list Ext.4 on production by the Accountant and the Head Clerk of the Cuttack Municipality Office. On 8.5.1985 P.W.39 applied before the learned C.J.M., Cuttack for permission to seize the original F.I.R. in Purighat/Lalbag P.S. Case No. 272/1985 from the Court office which was stated to have been lodged by the deceased. He made certain queries in writing to the doctor (P.W.37) who had conducted post mortem examination over the dead body of the deceased and received the reply from him. He examined some more witnesses and visited the spot as per Purighat/Lalbag P.S. Case No. 272/1985 which was stated to be situated in front of Rajabagicha High School. During course of further investigation, he obtained the certified copy of the order sheet in I.C.C. Case No. 28 of 1985 from the Court of learned S.D.J.M., Sadar, Cuttack which was filed by the son of the deceased namely Sukanta Nayak (P.W.34) against appellant P.K. Choudhury and another police officer. P.W.39 verified the records of Purighat/Lalbag P.S. Case No. 269/1985 which was lodged by P.W.13 Sura Nayak on 03.05.1985 in which neither the deceased nor the informant (P.W.1) was named as accused in the F.I.R. The viscera of the deceased collected during post mortem examination were sent to S.F.S.L., Rasulgarh for examination with the permission of C.J.M., Cuttack. P.W.39 moved the learned S.D.J.M., Sadar, Cuttack on 13.05.1985 for conducting T.I. parade in respect of the appellant P.K. Choudhury. He also seized the F.I.R. in Purighat/Lalbag P.S. Case No. 272/1985 from the office of the C.S.I. under seizure list Ext.39 after obtaining permission of the learned C.J.M., Cuttack. After appellant P.K. Choudhury surrendered in the Court, test identification parade in his respect was conducted on 25.05.1985 by P.W.24, learned J.M.F.C., Cuttack in which P.W.1 identified the appellant. P.W.39 took over charge of investigation of Purighat/Lalbag P.S. Case Nos. 269/1985 and 272/1985 from S.I. Jayadev Sarangi (P.W.38) on 26.05.1985. He sent bamboo lathi (M.O.IV) and wooden batten (M.O. VII) to the doctor (P.W.37) who conducted autopsy for his opinion and received the opinion as per Ext.49. On the prayer of the I.O., the learned S.D.J.M., Sadar, Cuttack sent different exhibits to S.F.S.L., Rasulgarh for chemical examination on 01.06.1985 and the reports of chemical examination and serological examination were received and reply of the autopsy doctor on other queries were also obtained. The disputed F.I.R. in Purighat/Lalbag P.S. Case No. 272/1985 and the admitted writings and signatures of the deceased were sent to handwriting expert through S.P., CID, CB, Cuttack for opinion. A casualty memo of S.C.B. Medical College and Hospital, which was issued to Mangalabag police station was also seized. Sketch map (Ext.40) was prepared by the Amin (P.W.32) attached to the office of Tahasildar, Cuttack and handwriting expert's opinion was also received. Some of the statements of the witnesses were recorded under section 164 of Cr.P.C. by the learned S.D.J.M., Sadar, Cuttack on the prayer of the investigating officer. The investigating officer found the inquest report of the deceased as per Ext.16 was written in the handwriting of the appellant P.K. Choudhury so also the requisition for the medical examination of the deceased in Purighat/Lalbag P.S. Case No. 272/1985. The seizure lists Ext.23/3 and Ext.42 in Purighat/Lalbag P.S. Case No. 272/1985 prepared by the appellant P.K. Choudhury and the case diary of the said case prepared by the appellant in five sheets were also seized. The witnesses shown to have been examined by the appellant P.K. Choudhury in Purighat/Lalbag P.S. Case No. 272/1985 were re-examined by the I.O. but they did not support their alleged previous statements made before the appellant P.K. Choudhury and also denied to have been examined by him. The I.O. perused the station diary of Purighat police station and found that the arrest of the deceased or the informant in connection with Purighat/Lalbag P.S. Case No. 269/1985 was not shown in it.

10. On completion of investigation in Purighat/Lalbag P.S. Case No. 269/1985, P.W.39 submitted charge sheet against some persons other than the informant (P.W.1).

11. On completion of investigation in Purighat/Lalbag P.S. Case No. 272/1985, P.W.39 submitted final report (Ext.64) indicating the case to be false.

12. On completion of investigation in Purighat/Lalbag P.S. Case No. 273/1985, he submitted charge sheet against the appellants on 22.07.1985 under sections 304/342/323/294/201/167/471/477-A/34 of the Penal Code, 1860.

13. After observing due committal formalities, the case of the appellants was committed to the Court of learned Sessions Judge, Cuttack who transferred it to the Court of learned Asst. Sessions Judge-cum-Additional Chief Judicial Magistrate (Special), Cuttack for trial where the learned trial Court framed charges on 15.02.1986 against the appellants and since the appellants refuted the charges, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute them and establish their guilt.

14. The defence plea of the appellant Pravat Mohanty was that he was the Inspector in-charge of Purighat police station at the relevant time and since many cases were instituted against the Scheduled Caste community of Rajabagicha area, the community people were very much aggrieved on him for which they have deposed falsehood. It was further pleaded that in another case i.e. Purighat P.S. Case No. 140 of 1984, the D.S.P. and P.W.39 requested him to release the seized motorcycle but he did not keep their request for which they were aggrieved and that they were in search of an opportunity to put him in trouble and accordingly, P.W.39 had arranged false evidence against him. It is the further defence plea that the deceased Kasinath along with the informant (P.W.1) came to Purighat police station in the occurrence night to lodge F.I.R. regarding assault on the deceased on the Kathajori river embankment at about 9 p.m. who had sustained bleeding injuries and on such F.I.R., Purighat/Lalbag P.S. Case No. 272/1985 was registered and that deceased was not assaulted in Purighat police station.

15. The defence plea of the appellant P.K. Choudhury was that he was the Senior Sub-Inspector attached to Purighat Police Station at the time of occurrence. Sukanta Naik (P.W.34), who was the son of the deceased was an anti-social element and many cases were instituted against him at Purighat police station and he was taking action against P.W.34 for which P.W.34 along with others deposed against him as they wanted to demoralize the police. P.W.34 filed a complaint case against him and one P.K. Jaysingh, another S.I. of police of Purighat police station. Sura Naik (P.W.13) lodged an F.I.R. on 03.05.1985 in Purighat police station which was entrusted to him for investigation by the appellant Pravat Mohanty. It was further pleaded that P.W.39 was hostile towards him for which he arranged false evidence against him. It is the further defence plea that the deceased Kasinath had come to the police station in the night of occurrence at about 9.50 p.m. with bleeding injuries and he was not assaulted inside Purighat police station and on the basis of the F.I.R. of the deceased, Purighat/Lalbag P.S. Case No. 272/1985 was registered and the seizure made by him in that case was true. It was pleaded that in the night of occurrence, he arrested P.W.1 and the deceased and detained them in the police station.

16. In order to prove its case, the prosecution examined thirty nine witnesses.

17. P.W.1 Kusia Naik is the informant in the case. He is an eye witness to the assault on the deceased inside Purighat police station and he himself is an injured.

18. P.W.2 Khetrabasi Behera was the Senior Scientific Assistant of F.S.L., Bhubaneswar. He came to Purighat police station during the midnight on 05.05.1985 along with A.S.I. Photographer and S.I. of Finger Print on receipt of requisition from the investigating officer for inspection of the spot. He found blood stain marks on the floor of the room of the police station and collected sample. He also noticed blood stain in the police jeep bearing registration no. OSU 6632 and collected sample. He directed the photographer to take photographs of different places at the spot and the articles and kept those articles in a sealed packet and handed over to the investigating officer for sending it to the Director of S.F.S.L. for testing. He proved his report Ext.2.

19. P.W.3 Sudarsana Naik, who was working as a sweeper in Purighat Police Station, is a witness to the seizure of broomstick M.O.V. as per seizure list Ext.3. He was declared hostile by the prosecution.

20. P.W.4 Surendra Kumar Das, who was working as a Junior Assistant in Cuttack Municipality, is a witness to the seizure of some documents produced by the Office Accountant before the I.O. of the case which were seized under seizure list Ext.4. He also identified the signatures of the deceased on the Pay Cards supplied to the sweepers of the Municipality as the deceased was working as a Jamadar in Cuttack Municipality. He is also a witness to the seizure of Pay Cards vide seizure list Ext.5 and identified the signatures of the deceased in the reports Exts.6, 7 and 8.

21. P.W.5 Jogi Naik is a witness to the seizure of one jeep vide seizure list Ext.9 and eight packets containing blood stained cemented earth vide seizure list Ext.10.

22. P.W.6 Kailash Naik is a witness to the seizure of one dhoti, one banian, one silver DEUNRIA, one steel ring vide seizure list Ext.11. He is also a witness to the seizure of Khaki Pant and Khaki half-shirt of Kusia Naik (P.W.1) vide seizure list Ext.12 as well as one wooden batten (M.O. VII), one bamboo lathi (M.O. IV), some khatas and papers vide seizure list Ext.13. He is also a witness to the seizure of broomstick (M.O. V) vide seizure list Ext.3. He is also a witness to the seizure of eight paper packets containing blood stains collected from the floor vide seizure list Ext.10.

23. P.W.7 Malati Bewa, who is the widow of the deceased Kasinath, is a post occurrence witness and she identified the wearing apparels put on by her husband at the time of going to the police station vide M.O.I, M.O.II, M.O. III, M.O.VI and M.O. VII. She stated about her husband and P.W.1 going to Purighat police station at about sunset time on the date of occurrence. She also came to Purighat police station along with others during the occurrence night at about 10 p.m. and heard cries of her husband ‘MALO MARIGALI MARIGALI’ and when they made an attempt to enter inside the police station, they were prevented by some police personnels.

24. P.W.8 Brahamananda Behera, who was posted as a Havildar in Purighat Police Station at the relevant point of time, did not support the prosecution case for which he was declared hostile.

25. P.W.9 Baidhar Mohanti was the Constable attached to Purighat Police Station at the relevant time and he stated that the deceased and P.W.1 had come to the police station and gave an application to appellant P.K. Choudhury who asked them to meet appellant Pravat Chandra Mohanty. He was also declared hostile by the custody.

26. P.W.10 Dr. Gourkrushna Bisal, who was posted as the Medical Officer in the Casualty of S.C.B. Medical College and Hospital, Cuttack, examined P.W.1 on 05.05.1985 on police requisition and noticed two simple injuries on the person of P.W.1 and prepared his report Ext.18.

27. P.W.11 Dhruba Charan Das, who was a worker in the Press, stated to have noticed two scheduled caste persons in Purighat police station in the night on 04.05.1985. He was declared hostile.

28. P.W.12 Maheswar Behera and P.W.13 Sura Naik also did not support the prosecution case for which they were declared hostile.

29. P.W.14 Dr. Kusa Kumar Jajodia was in charge of Casualty of S.C.B. Medical College and Hospital who received the deceased Kasinath dead on being produced by Havildar Brahmananda Behera of Purighat Police Station and gave casualty memo to Mangalabag police station. He proved the command certificate Ext.14.

30. P.W.15 Para Dei, who belonged to the Basti of the deceased and P.W.1, did not state anything regarding the occurrence.

31. P.W.16 Biswanath Pandit, who was a Social Worker, is a witness to the inquest report vide Ext.15.

32. P.W.17 Maheswar Nayak, who was a Royalty Collector of sand, stated that on the instruction of the appellant P.K. Choudhury, he put his signature on a written paper vide Ext.23.

33. P.W.18 Kanchana Dei is the wife of P.W.1 who stated that her husband along with deceased had been to Purighat police station on the date of occurrence but since they did not return till 9.00 p.m., she went to the police station in search of her husband and when she called her husband, the constable present in the police station abused her and threw a roller stick, for which she returned to her house. She was declared hostile by the prosecution.

34. P.W.19 Sundari Bewa, who is an inhabitant of the Basti of the deceased, stated that she had been to the police station on the request of the widow of the deceased to ascertain the whereabouts of the deceased and on reaching at the gate of the police station, she heard the shriek of a person from inside the police station and she was not allowed to enter inside the police station. She again went to the police station at about 10 p.m. with the widow of the deceased and others but they were not allowed to enter the police station.

35. P.W.20 Biswanath Naik, who is the younger brother of the deceased, stated that Havildar Behera Babu had been to their Basti in search of the deceased and P.W.1 and he had seen the deceased and P.W.1 going to the police station in the evening hours.

36. P.W.21 Harasa Dei, who accompanied the widow of the deceased to Purighat police station in search of the deceased, stated that they heard the cry from inside the police station but they were not allowed to enter inside.

37. P.W.22 Rukmani Dei also accompanied the widow of the deceased and others to Purighat police station in search of the deceased and she stated that they heard the cry of one person inside the police station but they were not allowed to enter inside.

38. P.W.23 Madhab Swain did not support the prosecution case for which he was declared hostile.

39. P.W.24 Niranjan Das was the J.M.F.C., Cuttack who conducted T.I. parade in respect of the appellant Pratap Kumar Choudhary on 25.05.1985 and informant (P.W.1) was the identifying witness and he correctly identified the appellant. He prepared the T.I. parade report Ext. 24.

40. P.W.25 Chakradhar Kar was J.M.F.C., Cuttack, who recorded the statements of some witnesses under section 164 of Cr.P.C. vide Exts.25, 26, 27 and 28.

41. P.W.26 Aramohan Singh was working as A.S.I., C.I.D., CB, Photography Bureau who visited the Purighat police station in the night of occurrence and he took photographs of blood stains lying at different places in the police station including the jeep. He also took photographs of the blood stained dhoti with stool mark, lathi and proved the positives and negatives of the photographs.

42. P.W.27 Mohan Kumar Prusty was the handwriting expert, who after examining the admitted handwritings of the deceased and the disputed handwritings of the deceased gave his opinion as per his report Ext.37.

43. P.W.28 Bijaya Kishore Mohanty was the J.M.F.C., Cuttack who recorded the statement of P.W.12 under section 164 of Cr.P.C.

44. P.W.29 Balunkeswar Biswal was the C.S.I. of Cuttack Sadar Court who stated about the seizure of the F.I.R. in Purighat P.S. Case No. 272/1985 vide seizure list Ext.39.

45. P.W.30 Purusottam Lenka, who was an attendant in the Casualty Department of S.C.B. Medical College and Hospital, Cuttack stated that he and two police people lifted the patient (the deceased) to the bed in the Casualty Department in a stretcher and the doctor examined and declared him dead.

46. P.W.31 Umesh Chandra Pattnaik was the Senior Clerk in the Health Office of Cuttack Municipality who produced the pay cards containing signatures of the deceased before the I.O. along with the absentee reports which were seized by the I.O. under seizure list. He also proved the signatures of the deceased in different documents.

47. P.W.32 Bhabagrahi Routrai was the Amin attached to the office of Tahasildar, Cuttack who visited Purighat police station and prepared the sketch map (Ext.40).

48. P.W.33 Bhagyadhar Bal, who is a resident of the locality adjacent to Rajabagicha High School stated not to have heard any hullah on the date of occurrence near the passage leading to Kathojori even though he was present in his house.

49. P.W.34 Sukanta Naik, who is the son of the deceased, is a post occurrence witness and stated about initiation of a complaint case bearing I.C.C. Case No. 28 of 1985 against the appellant Pratap Kumar Choudhary S.I. of Police. He further stated that Ext.A is not the signature of the deceased.

50. P.W.35 Bulu Naik, who was working as a sweeper in S.C.B. Medical College & Hospital stated that on the instruction of the appellant P.K. Choudhury, he collected wet sand lying in front of the Casualty verandah of the hospital and kept it in a piece of paper, which was seized by appellant P.K. Choudhury in his presence.

51. P.W.36 Trinatha Naik, who was working as a sweeper in S.C.B. Medical College & Hospital, Cuttack stated about the collection of sample earth from Casualty Ward by P.W.35 which was seized by police under seizure list Ext.42.

52. P.W.37 Dr. Debendra Kumar Pattnaik was the Assistant Surgeon of F.M.T. Department of S.C.B. Medical College & Hospital, Cuttack, who conducted autopsy over the dead body of the deceased and proved his report Ext.43. He also gave his opinion on the requisitions submitted by the investigating officer.

53. P.W.38 Jaideb Sarangi who was working the Sub-Inspector of police attached to Purighat Police Station was the investigating officer of Purighat/Lalbag P.S. Case No. 272/1985 after taking over the charge from appellant Pratap Kumar Choudhury.

54. P.W. 39 Gaganbehari Mohanty was the Inspector, C.I.D., C.B., Cuttack is the investigating officer in the case.

55. No witness was examined on behalf of the defence.

56. The prosecution exhibited sixty seven documents. Ext.1 is the F.I.R., Ext.2 is the report of the Scientific Officer (P.W.2), Exts.3, 4, 9, 10, 11, 12, 13, 39, 42 and 62 are the seizure lists, Ext.5 is the pay cards, Exts.6, 7 and 8 are the absentee reports submitted by the deceased in the Municipality office, Ext.14 is the command certificate issued to P.W.8, Ext.15 is the inquest report prepared by the Executive Magistrate, Ext.16 is the inquest report prepared by the appellant Pratap Kumar Choudhary, Ext.17 is the dead body challan, Ext.18 is the report of the medical examination of P.W.1, Ext.20 is the F.I.R. lodged by P.W.13 in Purighat P.S. Case No. 269 of 1985, Ext.21 is the 164 Cr.P.C. statement of P.W.13, Ext. 22 is the casualty memo issued by P.W.14 to Mangalabag Police Station, Ext. 23 is the signature of P.W.17 in a seizure list, Ext.24 is the report of Test Identification parade, Ext.19/3 and Exts.25 to 30 are the 164 Cr.P.C. statements, Exts.31 and 32 are the negative prints of photographs, Ext.33 is the forwarding letter addressed to the handwriting experts, Ext.34 is the negative prints of eleven exposures of handwriting, Ext.35 is the enlarged positive prints consisting of ten sheets of the disputed documents to be examined by the Handwriting Experts, Ext.36 is the enlarged photographs of admitted writings and signatures, Ext.37 is the report of the Handwriting Expert, Ext.38 is the statement of reasons of the Handwriting Expert, Ext.40 is the sketch map prepared by P.W.32, Ext.41 is the certified copy of the order-sheet in I.C.C. Case No. 28 of 1985, Ext.43 is the post mortem examination report, Ext. 44 is the endorsement of P.W.37 in the supplementary query by the I.O., Ext. 45 is the further opinion of P.W. 37, Ext.46 is the endorsement of the clerk of P.W.37 in the supplementary query of the I.O., Exts.47, 49 and 51 are the further opinion of P.W.37, Exts. 48 and 50 are the endorsements of P.W.37 in another supplementary query of the I.O., Ext.52 is one sheet of case diary written by the appellant Pratap Kumar Choudhary in Purighat/Lalbag P.S. Case No. 269/1985, Ext. 53 is the signature of appellant Pratap Kumar Choudhary under the statement of P.W.15 in the case diary of Lalbag/Purighat P.S. Case No. 269/1985, Exts.54 and 55 are the station diary entries, Ext. 56 is the medical requisition of the deceased, Exts. 57 and 58 are the zimanama, Ext.59 is the forwarding letter to S.F.S.L., Ext.60 is the Chemical Examination report, Ext.61 is the Serological Examination report, Ext.63 is the case diary maintained by appellant Pratap Kumar Choudhury in Lalbag/Purighat P.S. Case No. 272/1985, Ext.64 is the final report in Purighat/Lalbag P.S. Case No. 272/1985 submitted by P.W. 39, Ext.65 is the viscera report of the deceased, Ext.66 is the order copy of D.G. of police and Ext.67 is the supervision note of the Deputy Superintendent of Police.

57. The defence exhibited nine documents. Ext.A is the signature of the deceased in disputed F.I.R. in Lalbag/Purighat P.S. Case No. 272/1985, Ext.B/1 is the statement of P.W.34, Exts.C, D, E and F are the station diary entries dated 04.05.1985 of Purighat police station, Ext.G is the certified copy of the order dated 20.01.1985 passed in G.R. Case No. 163 of 1985, Ext.H/1 is the certified copy of F.I.R. in Lalbag/Purighat P.S. Case No. 49 of 1985 and Ext.J is the certified copy of the charge sheet in Lalbag/Purighat P.S. Case No. 49 of 1985.

58. The prosecution also proved seven material objects. M.O.I. is the dhoti, M.O.II is the ganji and M.O. III is the ‘DEUNRIA’ of the deceased respectively, M.O. IV is the bamboo lathi, M.O.V. is the broom stick, M.O.VI is the steel ring of the deceased, M.O. VII is the wooden batten and M.O. VIII is the shirt of the deceased.

59. The learned trial Court after analysing the oral as well as documentary evidence on record came to hold as follows:

Paragraph no. 9:

60. There is nothing to connect the accused persons with the alleged offence of abusing the ladies in obscene language. So, the charge under section 294/34 of the Penal Code, 1860 does not stand substantiated.

Paragraph no. 11:

61. The first information report (Ext.20) in Purighat/Lalbag P.S. Case No. 269/1985 carries a vivid description of the occurrence and even the names of the witnesses are also mentioned in it including which person played what specific role during the occurrence but there is no mention of participation of the deceased and P.W.1 in it. Accordingly at the outset, it is not believable that the deceased and P.W.1 had participated in the offence alleged in Purighat/Lalbag P.S. Case No. 269/1985.

Paragraph no. 12:

62. P.W.13 Sura Naik who is the informant in Purighat/Lalbag P.S. Case No. 269/1985 did not support the prosecution case and turned hostile and gave contrary evidence. He has also not explained in his evidence why he omitted to mention the names of the deceased and P.W.1 in his F.I.R. It seems that P.W.13 subsequently developed his story involving the deceased and P.W.1 to suit the defence version in the case. The deceased and P.W.1 had not taken part in the occurrence alleged by P.W.13 in his F.I.R.

Paragraph no. 13:

63. The appellant Pratap Kumar Choudhury has shown examination of one Para Dei (P.W.15) in connection with Purighat/Lalbag P.S. Case No. 269/1985 but P.W.15 herself frankly denied to have been examined in that case. Thus P.W.15 falsifies her alleged statement in the case diary of the said case.

Paragraph no. 14:

64. The appellant Pratap Kumar Choudhury has not mentioned the time and place of arrest of the deceased and P.W.1 in the case diary of Purighat/Lalbag P.S. Case No. 269/1985 which suggests that it had not taken place and therefore, the I.O. omitted to write it. The appellant P.K. Choudhury could not explain this in his statement recorded under section 313 Cr.P.C. In view of the station diary entries of Purighat police station, the appellant P.K. Choudhury remained absent from the police station from 10.15 p.m. till midnight at 12 O' clock and he again came back at 12 O' clock but soon thereafter he left. The statement of the appellant in his accused statement that he arrested the deceased and P.W.1 in between 10 p.m. to 12 a.m., appears to be wrong. Though as per the station diary entry, appellant P.K. Choudhury remained present in Purighat police station for fifteen minutes between 10 p.m. to 10.15 p.m. but within the said period, he stated to have maintained the case diary of Purighat/Lalbag P.S. Case No. 272/1985 including examining the deceased and P.W.1 and issuing medical requisition for the examination of the deceased and left for the spot at 10.15 p.m. It is not possible to do so many things and then to arrest the deceased and P.W.1 during such short period of fifteen minutes. It becomes clear that appellant Pratap Kumar Choudhury could not explain in his accused statement when he arrested the deceased and P.W.1.

Paragraph no. 16:

65. It becomes clear that the deceased and P.W.1 were not in fact arrested and the connected parts of case diary in Purighat/Lalbag P.S. Case No. 269/1985 were fabricated to falsely show that they were arrested.

Paragraph no. 19:

66. The distance between the house of P.W.33 and the embankment is not very short. It was, therefore not likely that P.W.33 would be able to hear the sound of noise at the spot. So, his evidence cannot rule out the possibility of the alleged incident.

Paragraph no. 20:

67. The occurrence as alleged in the so-called F.I.R. in Purighat/Lalbag P.S. Case No. 272/1985 did not at all take place.

Paragraph no. 21:

68. It is clear from the evidence of the P.Ws.1 and 20 that the deceased and P.W.1 had come to the police station in the evening of 04.05.1985.

Paragraph no. 22:

69. The testimony of P.W.1 and P.W.20 being creditworthy, it is found that the deceased and P.W.1 came to the police station in the evening. In view of this fact, the occurrence alleged in Lalbag/Purighat P.S. Case No. 272/1985 stands automatically ruled out.

Paragraph no. 26:

70. The disputed signature reading ‘Kasinath’ in the so-called F.I.R. relating to Purighat/Lalbag P.S. Case No. 272/1985 was not in the hand of the deceased.

Paragraph no. 27:

71. The opinion of P.W.31 that Ext.A is the signature of the deceased which is contrary to the evidence of P.W.34 and expert's opinion, cannot be accepted as it seems that P.W.31 committed the mistake because he was not so well acquainted with the handwriting of the deceased.

Paragraph no. 28:

72. The seizure list prepared by appellant P.K. Choudhury in Purighat/Lalbag P.S. Case No. 272/1985 relating to seizure of a half shirt and one napkin on being produced by the deceased, appears to be a false seizure list.

Paragraph no. 29:

73. The garments Dhoti, Ganji and Deunria and the steel ring of the deceased (M.O.I, II, III and VI) were seized under seizure list Ext.11 by P.W.39 on being produced by P.W.8 after post mortem examination. It is not understood how a shirt and napkin were available as the clothes of the deceased, so that the appellant P.K. Choudhury could seize the same under seizure list Ext.23/3. The date put by the appellant P.K. Choudhury under his signature as 05.05.1985 in the seizure list (Ext.23/3) dated 04.05.1985 shows that this mistake occurred because the seizure list was written on a day subsequent to 04.05.1985. The explanation given by the appellant in that respect in question no. 46 is not acceptable. Nothing was at all seized under Ext.23/3 and the alleged seizure was only a paper transaction.

Paragraph no. 31:

74. The effect of evidence of P.Ws.35 and 36 is that though seizure of vomited substance has been reflected in Ext.42, it was not in fact seized. The averments in Ext.42 appear to be false and it is a fabricated document.

Paragraph no. 32:

75. The chemical examination report (Ext.60) mentions that the sample did not contain vomited substance. Obviously it was not seized under Ext.42 and the document appears to be fabricated.

Paragraph no. 33:

76. P.W.1 was falsely shown as a witness in the case diary of Purighat/Lalbag P.S. Case No. 272/1985.

Paragraph no. 34:

77. The alleged occurrence in Purighat/Lalbag P.S. Case No. 272/1985 was not possible one as such an occurrence at such a place cannot cause the injuries found in the dead body.

Paragraph no. 35:

78. The contention of the defence advocate that the injuries found in the dead body could have been caused by an occurrence and at the spot as alleged in Purighat/Lalbag P.S. Case No. 272/1985 is not acceptable.

Paragraph no. 36:

79. The inquest report Ext.16, prepared by the appellant P.K. Choudhury is a fabricated document in which the injuries on the deceased have been minimized to a great extent deliberately with malafide intention.

Paragraph no. 37:

80. Ext.16 cannot suggest any conclusion other than a malafide intention to suppress the injuries.

Paragraph no. 38:

81. The entire case i.e. Purighat/Lalbag P.S. Case No. 272/1985 is false, the alleged investigation is only a paper transaction and all the connected documents i.e. so-called F.I.R., seizure lists, C.D. etc. are fabricated documents.

Paragraph no. 39:

82. There is ample evidence to indicate who scribed the F.I.R. (Ext.1), where and how. Therefore, the contention raised from the side of the defence that the F.I.R. was not duly proved, is discarded.

Paragraph nos. 42, 43:

83. The contention was raised by the defence that Ext.1 is not the real F.I.R., though it was treated as such. There is no reason to have suspicion against the F.I.R. lodged by P.W.1, specifically because evidence of P.W.1 in connection with it appears to be cogent.

Paragraph no. 54:

84. Both the Sub-Inspectors P.K. Choudhury (appellant) and P.K. Jaysingh appeared in the Court on 30.04.1985 in pursuance of the summons issued to them in Complaint Case No. 28/85 filed by P.W.34 which was four days before the alleged occurrence. Obviously, they must have been aggrieved not only against P.W.34 but also against his family members and against P.W.1. This indicates the motive on the part of accused P.K. Choudhury and accused Pravat Mohanty being his immediate superior, he must have also taken up his cause, thereby becoming motivated to retaliate.

Paragraph no. 55:

85. Except P.W.1, there is no other witness to speak directly about the occurrence. The evidence of P.Ws.7, 19, 21 and 22 were adduced to provide limited corroboration to the testimony of P.W.1 but it is difficult to believe their version.

Paragraph no. 56:

86. The evidence of the female witnesses P.Ws.7, 21 and 22 do not inspire confidence.

Paragraph no. 57:

87. The unlawful detention of the deceased and P.W.1 inside Purighat police station in the night of occurrence stands proved.

Paragraph no. 59:

88. P.W.1 is not an educated person and he is only a sweeper. Therefore, the evidence of P.W.1 cannot be discarded on the ground that there were some differences between his testimony and his averments in the F.I.R.

Paragraph no. 60:

89. The report of the medical examination of P.W.1 proved by the doctor (P.W.10) supports his testimony about assault on him. This is another reason for which the evidence of P.W.1 should not be disbelieved.

Paragraph no. 61:

90. The testimony of P.W.1 should not be viewed with suspicion on the ground that there are some discrepancies with reference to the narration made in the first information report.

Paragraph no. 62:

91. No importance should be attached to the T.I. parade conducted by the Judicial Magistrate (P.W.24) in respect of accused P.K. Choudhury in which P.W.1 identified him, as P.W.1 knew the accused earlier, though not by name and deposed against him in Complaint Case No. 28/85.

Paragraph no. 63:

92. P.W.1 is the solitary witness to speak about the occurrence inside the police station and there is no other independent witness to corroborate his testimony. Testimony of P.W.1 is an added strength in addition to the available circumstances and factors which are by themselves sufficient to prove the alleged assault. So, there is no necessity at all to look for independent corroboration as the assault took place inside the police station.

Paragraph no. 64:

93. The deceased was mercilessly beaten by accused P.K. Choudhury with the active connivance, consent and collaboration of accused Pravat Mohanty.

Paragraph no. 66:

94. No adverse inference can be drawn against the prosecution for non-examination of P.K. Mishra, A.S.I. who had written the station diary entries marked as Exts.D, E, E/1, F, F/1 and 55 as his conduct appears to be dubious in making false Station Diary entries. Accused persons should have summoned him as a defence witness as his version would substantiate the defence plea.

Paragraph no. 68:

95. The evidence of P.Ws.9, 11, 12 and 13 that the appellant Pratap Kumar Choudhury was not present in the police station during the crucial time i.e. till 9.45 p.m. cannot be relied upon in support of the defence plea. P.Ws.9, 11 and 13 appear to be liars and the evidence of P.W.12 is contrary to his statement under section 164 Cr.P.C.

Paragraph no. 69:

96. The omission of the investigating officer to make P.W.34 Sukanta Naik as an accused in the charge sheet in Purighat/Lalbag P.S. Case No. 269/1985 cannot be said to be a malafide act.

Paragraph no. 71:

97. It is found that the deceased had not at all taken rice and vegetable curry. The presence of undigested food materials inside the stomach of the deceased cannot be believed as the deceased has taken food at about sunset time before going to the police station and he died in the night at about 3.00 a.m. and therefore, the intervening time gap was more than eight hours which was sufficient for complete digestion of food like rice and vegetables.

Paragraph no. 73:

98. The hypothesis of suffocation/choking being not acceptable, the reasonable conclusion would be that the cause of death was due to failure of heart precipitated by long detention associated with the injuries found in the body.

Paragraph no. 74:

99. The nexus of the death of the deceased and the act of the appellants in subjecting him to long detention throughout the night and mercilessly beating him and that the facts disclosed that the appellants knew that their acts would be likely to cause death of the deceased. Accordingly, it was held that the appellants have committed an offence punishable under section 304 Part II read with section 34 of the Penal Code, 1860.

Paragraph no. 78:

100. The accused persons fabricated case diary in Purighat/Lalbag Case No. 269/1985 and also forged the so-called F.I.R., seizure lists and connected case diary including examination of witnesses, inquest etc. in Purighat/Lalbag Case No. 272/1985. The accused persons used such forged documents as genuine documents, though to their knowledge those were forged. They did so falsely to explain the wrongful detention of the deceased and P.W.1 and to explain the injuries on their bodies in furtherance of their common intention. Hence, it is found that they are guilty of the offence punishable under section 471/34 Penal Code, 1860.

101. The learned trial Court after discussing the evidence, disbelieved the charge under sections 294/34 of the Penal Code, 1860 in paragraph 9, charge under section 201/34 of the Penal Code, 1860 in paragraph 75, charge under section 167/34 of the Penal Code, 1860 in paragraph 76 and charge under section 477-A/34 of the Penal Code, 1860 in paragraph 77 of the judgment.

102. Mr. Devashis Panda, learned counsel appearing for the appellant P.K. Choudhury contended that the evidence of star witness P.W.1 is full of contradictions. He has made deliberate improvement in his evidence in comparison to what he has narrated in the F.I.R. and stated before the I.O. in his statement recorded under section 161 Cr.P.C. and therefore, no implicit reliance can be placed on it. He argued that taking into account the distance factor from the Basti of P.W.1 and the deceased to Purighat police station, had they left their Basti at a time as stated by P.W.1, it would not have taken so much of time for them to reach at the police station. None of the police officials like P.W.8 and P.W.9 present in the police station and other independent persons like P.W.11 and P.W.12 who came to the police station during the relevant time corroborated the evidence of P.W.1 regarding his presence with the deceased since evening hours as well as the assault on the deceased by any of the appellants. According to Mr. Panda, the alleged weapon of offences i.e. M.O.IV and M.O. VII were not shown to P.W.1 during trial for identification and M.O. VII was not even produced before the Scientific Officer when he and his team visited Purighat police station on 05.05.1985 midnight nor sent to S.F.S.L., Rasulgarh for examination. The F.I.R. lodged by the deceased in Purighat/Lalbag P.S. Case No. 272/1985, the station diary entries dated 04.05.1985 of Purighat police station marked as Exts.C, D, E, E/1, F, F/1 substantiate the defence plea regarding arrival of the deceased and P.W.1 in the police station around 10 p.m. and not at about 7 p.m. on 04.05.1985 as alleged by prosecution. He argued that materials on record indicate that A.S.I. of police P.K. Mishra was the diary in-charge, Sk. Firoz was the driver of the police jeep in which the deceased was taken to the hospital from the police station and constable Anand Naik was also on duty at the relevant point of time but they have not been examined during trial. According to Mr. Panda, it was the duty on the part of the investigating officer (P.W.39) to first verify as to who were on duty during the period P.W.1 and the deceased remained in Purighat police station and to examine all of them to ascertain the truthfulness of the prosecution version but the same has not been done. Though the investigating officer stated that he sent P.W.1 for medical examination on police requisition on 05.05.1985 and received the injury report on the same day but P.W.1 is silent in that respect. In the first information report, it is mentioned that a police officer having mustache assaulted the informant but strangely the informant has not named the appellant P.K. Choudhury in it even though he had deposed a month before against the said appellant in the complaint case instituted at the instance of P.W.34, the son of the deceased. The evidence on record indicates that there were other police officials working in Purighat police station at the relevant point of time who were having mustache and this creates doubt about the participation of the appellant P.K. Choudhury. He argued that no importance can be attached to the identification of appellant P.K. Choudhury in the T.I. Parade as everything has been stage managed by the investigating officer. He further contended that though the learned trial Court has commented that the appellant Pratap Kumar Choudhury had minimized the injuries sustained by the deceased at the time of preparation of inquest report (Ext.16) and gave incorrect data in it in comparison to the inquest report (Ext.15) prepared by the Executive Magistrate but no importance can be attached to Ext.15 as the concerned Executive Magistrate who prepared such report was not examined nor any of the witnesses who signed the inquest report were examined to prove their signatures on it. He emphatically contended that since Indian Evidence Act enumerates as to how a document is to be proved and by whom and Ext.15 has not been proved in that manner, the same cannot be considered at all to discard Ext.16. The statement of the I.O. that he could not find the Executive Magistrate who prepared the inquest report is not acceptable. He further argued that P.W.39 seems to have received an oral order to investigate Purighat/Lalbag P.S. Case No. 273/1985 prior to its registration and the presence of Umesh Mohapatra, City D.S.P. at the time of lodging of F.I.R. at Lalbag police station are some of the doubtful features of the case. While concluding his argument, it is submitted that two separate standards have been adopted by the learned trial Court while assessing the prosecution case vis-à-vis the defence plea and therefore, taking an overall holistic and pragmatic view, benefit of doubt should be extended in favour of the appellant P.K. Choudhury.

103. Mr. Yasobant Das, learned Senior Advocate appearing for the appellant Pravat Mohanty contended that P.W.1 is a agnatic relation of the deceased and he is a highly interested witness and he also deposed as a witness in the complaint case instituted by the son of the deceased against appellant P.K. Choudhury. P.W.1 is a Court bird and there is motive on his part to falsely implicate the appellant and therefore, the false implication of the appellant cannot be ruled out. Mr. Das further argued that the prosecution has to stand on its own legs and weakness of the defence or inability of the defence to prove the defence plea is not a factor to accept the prosecution case automatically. To dislodge the defence plea regarding assault on the deceased on the river embankment at about 9 p.m. on 04.05.1985, a story has been introduced by the prosecution that P.W.8 accompanied the deceased and P.W.1 to the police station which indicates that the prosecution has not come forward with clean hand to substantiate its case. The version of different witnesses including P.W.1 relating to the time of his leaving of Basti with the deceased on the date of occurrence and their arrival time at Purighat police station are discrepant in nature. He highlighted the evidence of the doctor (P.W.37) who conducted post mortem examination and contended that since the doctor stated that all the external injuries are superficial in nature and such type of injuries are by themselves not fatal and cannot precipitate death, therefore even if for the sake of argument it is conceded that there was assault on the deceased in Purighat police station but the same would not make out the case of culpable homicide as defined under section 299 of the Penal Code, 1860 as the doctor (P.W.37) stated that the deceased was having a diseased heart which might accelerate heart attack and sudden death. He further argued that there is nothing on record to make out a case for the offence under section 471 of the Penal Code, 1860. He further argued that it is doubtful if the F.I.R. lodged by P.W.1 was registered at 11 a.m. on 05.05.1985 rather it has been ante timed as in the inquest report and post mortem report prepared thereafter, Purighat/Lalbag P.S. case no. 273 of 1985 has not been reflected but those documents reflect Purighat/Lalbag P.S. case No. 272/1985 which was registered on the basis of the F.I.R. lodged by the deceased. According to Mr. Das, the investigating officer (P.W.39) has deliberately not investigated Purighat/Lalbag P.S. Case No. 272/1985 properly and submitted final report indicating the case to be false, otherwise truth could have been elicited. The statement of the star witness (P.W.1) stated to have been recorded on 05.05.1985 was sent to Court on 25.07.1985 which has not been explained by the prosecution. He argued that how the Scientific Officer (P.W.2) noticed blood stain on the floor of the police station during the midnight on 05.05.1985 when P.W.3, the sweeper washed and cleaned the floor in the morning hours of that day. He concluded his argument by submitting that since material witnesses have been withheld by the prosecution and the prosecution case has been disbelieved by the learned trial Court in part, it would be very risky to convict the appellant. The learned counsel for the appellant relied upon the decisions in the cases of Jagdish v. State of Haryana reported in (2019) 7 SCC 711, Kathi Odhabhai Bhimabhai v. State of Gujarat reported in 1993 Supp (3) SCC 421 : AIR 1993 SC 1193, Lallu Manjhi v. State of Jharkhand reported in (2003) 2 SCC 401, Motilal v. State of Rajasthan reported in (2009) 7 SCC 454, Govindaraju @ Govinda v. State reported in (2012) 4 SCC 722, Harbeer Singh v. Sheeshapal reported in ABC 2016 (II) 218 SC, Guman Singh v. State of Rajasthan reported in 2019 Supp (2) CLT 402 (SC) and Rai Sandeep @ Deepu v. State of NCT of Delhi reported in (2012) 8 SCC 21 : AIR 2012 SC 3157.

104. Mr. Lalatendu Samantaray, learned Addl. Govt. Advocate on the other hand supported the impugned judgment and submitted that the learned trial Court has vividly discussed the evidence on record and acquitted the appellants of some charges and even if in view of contradictions in the evidence of P.W.1 vis-à-vis his narration of events in F.I.R. and statement recorded under section 161 of Cr.P.C., he is taken as a partly reliable and partly unreliable witness, still then there are ample corroboration to the evidence of P.W.1 that when the deceased came to the police station with P.W.1 in the evening hours on the date of occurrence, he was having no injuries but during midnight, he was taken to the hospital in a moribund condition from the police station and therefore, it is apparent that the injuries sustained by the deceased were caused during his presence at the police station. He argued that in view of the nature of contradictions in the evidence of P.W.1, his entire evidence cannot be wiped out rather the Court should adopt the well settled theory of separating grain from the chaff. He further submitted that even though the deceased and P.W.1 were not named as accused in the first information report lodged by P.W.13 Sura Nayak which gave rise to Purighat/Lalbag P.S. Case No. 269/1985 but all the same they were called to the police station with an oblique motive and creating a false statement against them in the said case, they were shown to have been arrested and detained in the police station. He further argued that the deceased was assaulted mercilessly by the two appellants as the appellant P.K. Choudhury police officer were summoned by the Court as accused on the compliant petition filed by the son of the deceased and then realizing that the health condition of the deceased had deteriorated on account of assault and there would be hue and cry for custodial violence, documents were created immediately to show as if the deceased sustained the injuries on account of assault by some unknown persons on the river embankment and came to report for the same. If the deceased was having no injuries on his person when he came to police station as stated by some witnesses, then the question of deceased sustaining any injury on account of assault on the river embankment does not arise rather it falsifies the defence plea. If the defence plea that the deceased came to police station to report about his assault incident is not accepted, then the defence plea that P.W.8 was not sent to the Basti to call the deceased and P.W.1 gets falsified as there would be no occasion for them to come to the police station. Finally, he argued that the appeals should be dismissed.

105. It would be appropriate first to discuss briefly the background of the case which appears from the evidence on record.

106. P.W.20 Biswanath Nayak, the younger brother of the deceased lodged a first information report at Purighat police station against Sukanta Naik (P.W.34), the son of the deceased in connection with some landed property dispute, for which Purighat/Lalbag P.S. Case No. 49 of 1985 was registered under sections 294 and 506 of the Penal Code, 1860. In connection with the said case, P.W.34 was arrested by police of Purighat police station and allegedly assaulted for which P.W.34 approached the Legal Aid Board and also instituted a complaint case vide I.C.C. Case No. 28 of 1985 in the Court of learned S.D.J.M., Cuttack against the appellant P.K. Choudhury and one P.K. Jaisingh who were the Sub-Inspectors of the said police station. In the complaint case, after inquiry under section 202 of Cr.P.C. was conducted, summons were issued against the appellant P.K. Choudhury as well as P.K. Jaisingh and both of them appeared in the Court on 30.04.1985. The above aspect has not been disputed by appellant P.K. Choudhury in his accused statement though it is his case that the complaint case was filed on false accusation.

107. On 03.05.1985 P.W.13 Sura Naik lodged an F.I.R. (Ext.20) at Purighat police station, on the basis of which Purighat/Lalbag P.S. Case No. 269/1985 was registered against P.W.34 and others but the deceased and P.W.1 were not named as accused in the said first information report. This aspect is also not disputed by both the appellants in their accused statements.

108. Now, coming to the prosecution case on the date of occurrence, it is stated that P.W.8 Brahmananda Behera who was the Havildar of Purighat police station came to the Basti of the deceased and P.W.1 for three times to call both of them to the police station and accordingly, both the deceased and P.W.1 went to the police station in the evening. Appellant Pravat Chandra Mohanty denied about this aspect whereas appellant P.K. Choudhury stated in his accused statement that since he was not present in the police station from 10 a.m. to 9.45 p.m., he could not say anything about that. In view of the stand taken by the appellants on this particular aspect, it would be important first to discuss the evidence adduced by the prosecution.

A. Whether P.W.1 and the deceased were called to Purighat police station through P.W.8 on the date of occurrence:

109. On this point, the relevant prosecution witnesses are P.W.1, P.W.7, P.W.8, P.W.13, P.W.18, P.W.20 and P.W.21.

110. In the first information report (Ext.1), it is mentioned that on the date of occurrence, after the informant (P.W.1) returned home from the market at about 4.30 p.m., he was informed by his wife (P.W.18) that he had been called to Purighat police station by Thanababu and after some time, the deceased also came and told P.W.1 to go to the police station and accordingly, both of them decided to go to the police station. There is nothing in the first information report as to who gave information to the wife of P.W.1 in that respect.

111. In his evidence, P.W.1 stated that at about noon when he returned to his house, he was told by his wife that he was wanted by the police of Purighat police station and one Behera babu had come to call him and then he met the deceased who also told that they were wanted by the police of Purighat police station. Thus from the evidence of P.W.1, it appears that he was not directly informed by any police official of Purighat police station to come to Purighat police station but he was told by his wife in that respect. It is also not clear from his evidence as to who was that Behera babu to whom his wife was referring to.

112. P.W.18 Kanchan Dei is the wife of the informant who stated that on the date of occurrence at about noon, Havildar Behera Babu had come to their Basti to call her husband but her husband was absent for which Havildar Behera Babu returned. Again Behera Babu came to the Basti to call her husband and took her husband and the deceased to the police station. Her previous statement has been confronted by the Public Prosecutor after she was declared hostile and she admitted to have stated before the I.O. that when Havildar came to her house at about twelve noon on 04.05.1985, he told her that the appellant Pravat Babu wanted her husband to go there and that she told that her husband was absent. Except giving suggestion that Behera Babu did not call her husband and the deceased Kasinath, the defence has brought nothing in the cross-examination in that respect.

113. P.W.7 Malati Bewa, the widow of the deceased stated that Havildar Behera babu of Purighat police station came to call the deceased at about 11.30 a.m. on the date of occurrence but the deceased was absent and when she asked, the Havildar told her that the deceased was wanted by the Inspector in-charge and if the deceased would not go to the police station, they would come and take him under handcuff. Again Havildar Behera babu came at about 4.30 p.m. and at that time also the deceased was absent and had been to his duty. When she informed her husband (deceased), her husband and P.W.1 talked together and decided to go to the Purighat police station. She further stated that again when the Havildar babu came, the deceased and P.W.1 along with the Havildar babu went to the police station and by then it was sun set time. Thus from the evidence of P.W.7, it appears that Havildar Behera babu had come for three times on the date of occurrence to call the deceased and on the first two occasions, he could not meet the deceased but on the third occasion when he came, the deceased and P.W.1 accompanied him to the police station. It is elicited in the cross-examination that the said Havildar Behera babu used to come to the Basti of the deceased to pacify different dispute and to take miscreants to the police station. Therefore, the identity of Havildar Behera babu by P.W.7 cannot be doubted. In the cross-examination, she stated that on the date of occurrence, the deceased returned home at about 5 p.m. from duty. Except giving suggestion to P.W.7 that Havildar Behera babu had not come to call the deceased and that the deceased had not accompanied him to the police station, nothing further has been brought out in the cross-examination to discard this part of evidence. P.W.7 has denied the defence suggestion. Law is well settled that the suggestion made by the defence does not constitute any evidence when the same is denied. Suggestions put are not evidence at all against the accused and on the basis of such suggestion, no inference can be drawn against an accused that he admitted the fact suggested in the cross-examination. A suggestion thrown to a prosecution witness under cross-examination by the defence counsel cannot be used as an implied admission so as to dispense with the proof of prosecution case.

114. P.W.20 Biswanath Naik has stated that on the date of occurrence which was the lunar eclipse day, during day time at about noon, he saw Havildar Behera Babu had come to their Basti to search for the deceased and P.W.1. He further stated that when the Havildar approached P.W.13 to show him their houses, P.W.13 did not like to show their houses and at that time the deceased as well as P.W.1 was not present in their respective houses. He further stated that in the evening hours at about 6.30 to 7.00 p.m., he saw the deceased and P.W.1 going towards police station. Except putting suggestion that Havildar Behera Babu had not come to the Basti and searching for the houses of the deceased and P.W.1, nothing has been elicited in the cross-examination to disbelieve the same on this particular aspect.

115. Thus, a combined reading of evidence of P.W.1, P.W.7, P.W.18 and P.W.20, it appears that Havildar Behera Babu had come to their Basti and in the absence of P.W.1 and the deceased, informed their respective wives to tell their husbands to go to the police station. However, the evidence of P.W.7 and P.W.18 that Havildar Behera Babu took P.W.1 and the deceased with him to the police station is not corroborated by P.W.1 and even P.W.20 has not seen Havildar Behera Babu accompanying P.W.1 and the deceased while they were going towards police station.

116. P.W.13 Sura Naik who is the informant in Lalbag/Purighat P.S. Case No. 269 of 1985 stated that he had not seen any police officer or Havildar or constable in his village on 04.05.1985. He was declared hostile and his previous statement before police was confronted to him by the Public Prosecutor and the same was proved through the I.O. (P.W.39) that he stated to have seen Havildar Behera Babu along with the brother of the deceased on 04.05.1985 at about noon and that Havildar asking him to show the houses of the deceased and P.W.1 but he told the Havildar that he was not pulling on well with them and asked to tell to the brother of the deceased to show the houses. Therefore, even though P.W.13 has made a statement before police regarding approach of Havildar Behera Babu to him to meet the deceased as well as P.W.1 on the date of occurrence but during trial, he resiled from his previous statement.

117. P.W.21 Harasamani Dei stated to have seen the deceased in the company of P.W.1 and a Havildar on the river embankment road on the date of occurrence going towards Purighat police station. In the cross-examination, she stated that she had come to Tala Telenga Bazar to take rice from a shop on credit but she could not say the name of the shop keeper. She further admitted that there were many grocery shops in Rajabagicha area where the rice was available. She stated that there is a short cut road from her house to that shop where she had gone to bring rice and another road through river embankment. The purpose for which the witness was passing on the river embankment road on that day appears to be doubtful and therefore, it is not believable that she was on the river embankment road in the evening hours to see the deceased and P.W.1 in the company of a Havildar. Thus the evidence of P.W.21 has to be discarded.

118. P.W.8 Brahmananda Behera on the other hand stated that he had not gone to Harijan Basti on 04.05.1985 and nobody sent him to call any person of that Basti and on that day, he had not seen P.W.1 and the deceased. His previous statement made before the investigating officer was confronted to him by the Public Prosecutor after he was declared hostile that he stated in his 161 Cr.P.C. statement that on 04.05.1985 at about 11.00 a.m., he had been to call P.W.1 and the deceased being ordered by appellant Pravat Mohanty. The said previous statement of P.W.8 has been proved through the investigating officer.

119. Mr. Devashis Panda, learned counsel contended that since no command certificate has been proved by the prosecution to show that P.W.8 was sent to the Basti of the deceased on the date of occurrence to call the deceased and P.W.1, the oral evidence adduced by the prosecution in that respect cannot be accepted. As per Rule 90 of Orissa Police Rules, whenever a Subordinate police officer is deputed on any duty, a command certificate in P.M. Form No. 9 is given to him, who has to carry it with him and produce it on his return before the officer in-charge. Obviously by proving the command certificate, the prosecution case regarding visit of P.W.8 to the Basti of the deceased and P.W.1 on the date of occurrence to call them would have been strengthened but its absence cannot a ground to discard the oral evidence on that score provided the same is clinching and trustworthy. It cannot be lost sight of the fact that the defence plea of the appellants was that neither the deceased nor P.W.1 was called to the police station through any Havildar but they came on their own to lodge a report in connection with the assault on the deceased on the river embankment. The possibility of sending P.W.8 to the Basti of the deceased and P.W.1 to call them to the police station without issuing any command certificate cannot be ruled out inasmuch as it is hardly expected from persons of social and educational background like the deceased and P.W.1 to demand perusal of command certificate before going to the police station.

120. Analysing the evidence adduced by the prosecution, even though P.W.8 has not supported the prosecution case and no command certificate has been proved by the prosecution, but in view of the evidence adduced by P.Ws.1, 7, 18 and 20 as already discussed, I am of the humble view that on the date of occurrence, P.W.8 had been to the Basti of the deceased and P.W.1 to call them to the police station and in their absence, he also informed about the purpose of his visit to their respective wives. However, the evidence adduced by P.W.7 and P.W.18 that Havildar Behera Babu took the deceased and P.W.1 with him to Purighat police station is not acceptable.

B. Leaving of Basti and arrival time of the deceased and P.W.1 at Purighat police station:

121. It is the prosecution case that the deceased and P.W.1 left their Basti at about 4.30 p.m. and reached at Purighat police station in the evening hours on 04.05.1985. However, it is the defence plea that both of them came to police station at about 9.50 p.m. to lodge a report in connection with the assault on the deceased that took place on the river embankment at about 9.00 p.m.

122. On this point, the relevant prosecution witnesses are P.W.1, P.W.7, P.W.20 and P.W.21. Since I have already discarded the evidence of P.W.21, the evidence of other three witnesses is to be discussed.

123. In the first information report, P.W.1 has mentioned that after he returned home at about 4.30 p.m. and heard from his wife that he had been called to Purighat police station, decision was taken by him and the deceased to go to the police station. It is further mentioned that he and the deceased went to Purighat police station at about 7.00 p.m. In his evidence, P.W.1 stated that he and the deceased decided to go to Purighat police station at about 4.00 or 4.30 p.m. and again the deceased came and called him to go to Purighat police station at 4.30 p.m. and after taking some tiffin in the house of the deceased, they proceeded to Purighat police station and by the time they reached at the police station, it was already evening. In the cross-examination, he stated that they left the house of the deceased at 4.30 p.m. to go to police station and by the time they reached, the light was on. In the first information report, there is no mention about taking of tiffin in the house of the deceased by both of them before proceeding to the police station. It has been confronted to this witness in the cross-examination that he had not stated in his F.I.R. or in his 161 Cr.P.C. statement that at about 4.30 p.m., again the deceased called him to go to the police station and taking tiffin in his house, they went to the police station. The I.O. (P.W.39) has stated that P.W.1 did not state before him that he and the deceased went to police station at 4.30 p.m. rather he said that they went at about 7.30 p.m. It has been suggested to P.W.1 by the defence that they had never come to the police station during the evening hours on 04.05.1985. The discrepancies which are appearing in the evidence of P.W.1 vis-à-vis the F.I.R. and his previous statement recorded under section 161 Cr.P.C. relating to leaving the Basti and arrival at the police station has its own significance in the factual scenario. After arrival in the house at about 4.30 p.m., P.W.1 seems to have been informed by his wife that he had been called to Purighat police station and since the deceased was also called to the police station, both of them decided to go to the police station which obviously must have been after 4.30 p.m. They took the tiffin in the house of the deceased which must have taken sometime and then they proceeded to the police station. Therefore, the evidence of P.W.1 that they left the house of the deceased at 4.30 p.m. to go to the police station cannot be accepted. The distance between the Basti of P.W.1 and Purighat police station is only one kilometer and it is rightly contended by the learned counsel for the appellants that had P.W.1 and the deceased started at 4.30 p.m., it would not have taken so much of time to reach at the police station at about 7.30 p.m. Though in the F.I.R., it is mentioned that they went to Purighat police station at about 7.00 p.m. and in his statement before police, he stated that they went to police station at about 7.30 p.m. but during trial he stated that they left the house of the deceased to go to police station at 4.30 p.m. Even though P.W.1 deposed in the Court almost a year after the occurrence, but the discrepancies relating to the leaving time of Basti as stated by him at different stage is very difficult to be digested. Why the leaving time of Basti was stated in a different manner? Whether it is an attempt by the prosecution to nullify the defence plea that the assault on the deceased took place on the river embankment at about 9.00 p.m. for which the deceased came to police station at about 9.50 p.m.? This aspect is to be discussed at appropriate stage while considering the defence plea and the F.I.R. stated to have been lodged by the deceased.

124. P.W.7 Malati Bewa, the widow of the deceased stated that her husband returned home after 4.30 p.m. and then he and P.W.1 talked together and decided to go to the police station. In the cross-examination, she stated that the deceased returned home at about 5.00 p.m. She further stated that P.W.1 went to attend the call of nature to the river and after he returned, she gave them tea, puri and halwa as it was a lunar eclipse day and then the deceased and P.W.1 went to the police station and by that time, it was sunset time. Thus, from the evidence of P.W.7, it appears that after taking tiffin, both P.W.1 and the deceased left their Basti at sunset time.

125. P.W.20 Biswanath Naik has stated that on the day of lunar eclipse in the evening at about 6.30 or 7.00 p.m., he had seen the deceased and P.W.1 going towards the police station. Nothing has been brought out in the cross-examination to raise any doubt on this aspect.

126. It was summer season and the sunset time in Cuttack on 04.05.1985 as per google was 6.02 p.m. In view of the evidence of P.W.1, P.W.7 and P.W.20, it appears that both the deceased and P.W.1 left their Basti after sunset and the time mentioned in the F.I.R. that they went to Purighat police station at about 7.00 p.m. appears to be correct.

127. Now, coming to the arrival time at Purighat police station, apart from the evidence of P.W.1, the evidence of P.W.9, P.W.11 and P.W.12 are relevant. P.W.1 stated that there was a cabin in front of the police station and the deceased asked him to sit there so that he could go to the police station to study the situation and accordingly, he sat there and the deceased went up to the gate of the police station and returned and told him that the appellant Pravat Mohanty had not come and they have to wait till his arrival. P.W.1 stated in the chief examination that by the time they reached at Purighat police station, it was already evening. In the cross-examination, he stated that by the time he reached at the police station, there was already light. He further stated in the cross-examination that at about 7.30 p.m., they entered the police station. Therefore, according to P.W.1, their arrival time in the police station was at about 7.30 p.m.

128. P.W.9 was the constable attached to Purighat police station and he stated that on 04.05.1989 from 8.00 p.m. to 10.00 p.m. when he was on duty, he had seen the appellant Pratap Kumar Choudhury in the police station but not the appellant Pravat Mohanty. He further stated that just before 10.00 p.m., he had seen the deceased and P.W.1 coming to the police station and giving an application to the appellant Choudhury. This witness was declared hostile by the prosecution and cross examined as he did not support the prosecution case relating to the assault on the deceased inside the police station.

129. P.W.11 is an independent witness and he stated that at about 9.30 p.m. on 04.05.1985 he came to Purighat police station in a case matter and after fifteen minutes of waiting, appellant Choudhury babu came and he also found two HADIS standing there. This witness has been declared hostile by the prosecution as he did not support the prosecution case relating to the assault on the deceased inside the police station.

130. P.W.12 is an independent witness who stated that on 04.05.1985 at about 10.00 p.m., he had come to Purighat police station and sat on the verandah. At that time, appellant Choudhury babu came and started going through a newspaper sitting in his room. After some time, two persons came and approached Choudhury babu. This witness has also been declared hostile by the prosecution as he did not support the prosecution case relating to the assault on the deceased inside the police station.

131. The statements of P.W.11 and P.W.12 were recorded by Magistrate under section 164 of Cr.P.C. in which also they had stated about the assault on the deceased inside Purighat police station by the appellants. Thus P.W.11 and P.W.12 have not only resiled from their previous statements made before the I.O. but also before Magistrate.

132. After considering the evidence of P.W.9, P.W.11 and P.W.12 with due caution and care, I find that as a result of the cross-examination and contradiction, the witnesses stand thoroughly discredited and completely shaken and their testimony relating to the arrival time of the deceased and P.W.1 at Purighat police station around 10 p.m. is very difficult to be acted upon and as a matter of prudence, such evidence has to be discarded in toto. (Ref : Sat Paul v. Delhi Administration . : (1976) 1 SCC 727).

133. Since after discarding the evidence of P.W.9, P.W.11 and P.W.12, the only evidence remains regarding arrival time of the deceased and P.W.1 at Purighat police station is that of P.W.1 from whose evidence, the arrival time appears to be at about 7.30 p.m., at this stage it is important to discuss the evidence of P.W.1 who is the star witness of the prosecution and the conviction of the appellants seems to be based mainly on his evidence.

C. Whether statement of P.W.15 was concocted for calling P.W.1 and the deceased to the police station:

134. The prosecution case is that even though in the F.I.R. lodged by P.W.13 in Purighat/Lalbag P.S. Case No. 269/1985, there was nothing against either P.W.1 or the deceased but all the same, they were called to the police station with an ulterior motive. I have already held that P.W.8 was sent on the date of occurrence to call P.W.1 and the deceased. It is not in dispute that there is nothing in the F.I.R. (Ext.20) lodged by P.W.13 against P.W.1 and the deceased. Appellant P.K. Choudhury has mentioned in the case diary of Purighat/Lalbag P.S. Case No. 269/1985 that he examined Para Dei (P.W.15) in connection with the said case and she implicated the deceased in connection with that incident. P.W.15 in her evidence clearly denied having any knowledge about any such incident that took place on the previous day of lunar eclipse of the year 1985 or giving any statement to any police officer. The learned trial Court has held that such a statement of P.W.15 falsifies the recording of her statement by appellant P.K. Choudhury in Purighat/Lalbag P.S. Case No. 269/1985.

135. Law is well settled that even though the name of a person does not find place in the first information report as an accused but during course of investigation, materials come against such person, nothing prevents the investigating officer to arraign him as an accused and also interrogating him to ascertain the truth. I am of the humble view that merely because P.W.15 denied to have made any statement before appellant P.K. Choudhury, her evidence cannot be accepted as gospel truth. Whether she was examined or not and whether her statement has been concocted was the subject matter of the trial in Purighat/Lalbag P.S. Case No. 269/1985.

136. Therefore, the finding of the learned trial Court that the evidence of P.W.15 falsifies her alleged statement in the case diary of Purighat/Lalbag P.S. Case No. 269/1985 is not acceptable. However, it is evident that both P.W.1 and the deceased were called to Purighat police station through P.W.8 for which they came there and they were also shown to have been arrested in Purighat/Lalbag P.S. Case No. 269/1985.

D. Whether evidence of P.W.1 can be acted upon:

137. I have already discussed the evidence of P.W.1 prior to his arrival at Purighat police station in the first two headings from which it appears that there are some discrepancies in his evidence relating to leaving time of his Basti but his arrival time at Purighat police station at about 7.30 p.m. has almost remained unshaken. Now, let me discuss about what he stated to have happened after he entered inside the police station with the deceased.

138. Since other eye witnesses to the occurrence like P.Ws.9, 11, 12 and 13 have not supported the prosecution case relating to the assault on the deceased and resiled from their previous statements, it is required to assess the evidence of solitary eye witness (P.W.1) relating to the assault by the appellants on him as well as the deceased carefully and also keeping in view the medical evidence.

139. P.W.1 stated that when he entered inside the police station with the deceased, the appellants abused them in filthy language as the son of the deceased approached Legal Aid office complaining against appellant P.K. Choudhury. Appellant P.K. Choudhury kicked both P.W.1 and the deceased and then assaulted the deceased with a lathi from his head to feet and then he assaulted P.W.1 by the same lathi on his left hand, left leg and left side cheek. Due to such assault by appellant P.K. Choudhury, the deceased sustained severe bleeding and swelling injuries all over his body and he himself also sustained swelling injury on his left fore arm. He further stated that the appellant Choudhury came with a constable and the constable was holding a bottle of liquor. The deceased was forced to open his mouth and the appellant P.K. Choudhury poured liquor into his mouth and P.W.1 was also forced to open his mouth and some liquor was inserted in his mouth. The appellant P.K. Choudhury told P.W.1 that he was the Chamcha of the deceased as he was a witness for deceased's wife and son in the Legal Aid case. The appellant P.K. Choudhury also gave a slap on the left cheek of P.W.1. Again the appellant P.K. Choudhury assaulted the deceased by means of the lathi which he was holding. Out of fear, the deceased wanted to pass stool and urine and went to the verandah by crawling. P.W.1 heard the cry of the deceased “MARIGALI MARIGALI, MOTE AU BADANA”. Then P.W.1 was forced to go to that place and he saw that the deceased had passed urine and stool. The appellant Pravat Mohanty asked P.W.1 to lift the deceased. When P.W.1 told that the deceased was about to die and it would not be possible on his part to lift him, the appellant Pravat Mohanty gave three to four kick blows on the buttock of P.W.1. With much difficulty, P.W.1 took the deceased to the side of a well inside the compound of the police station. One constable gave water and he washed the deceased. The appellant Pravat Mohanty gave some blows with a long lathi to the deceased after his washing. Then the appellant Pravat Mohanty brought some bread through one constable and told P.W.1 to give it to the deceased. P.W.1 told that the deceased was not in a position to take any food. At this, P.W.1 was given a kick on his buttock by appellant Pravat Mohanty. P.W.1 gave the bread to the deceased which he could not eat. The deceased was also assaulted by the appellant Pravat Mohanty by means of lathi on his shoulder and other joints of his body. While P.W.1 was taking the deceased to the verandah of the police station, his condition became serious. Appellant Pravat Mohanty asked the driver to bring the jeep and then the deceased was taken to the jeep and at that time, he was in a dying condition. The police officials told P.W.1 that they were taking the deceased to the hospital. He further stated that when he wanted to go with them as he had also sustained some swelling injuries on account of assault; he was not allowed to go and detained in the police station under handcuff. At about midnight, the deceased was taken to the hospital in the police jeep by appellant Pravat Mohanty and a constable. In the morning, again he saw the appellant Pravat Mohanty in the police station. Being asked by appellant Pravat Mohanty, the handcuff of P.W.1 was opened and he was set free. He further stated that at that time, a sweeper came to the police station for sweeping and the appellant Pravat Mohanty asked the sweeper to clean the spot which was stained with blood, stool, urine and vomiting substances and accordingly, the sweeper washed it. While he was sitting there, the wife of the deceased came with another female and challenged in the police station in front of the appellant Pravat Mohanty that they killed her husband and she would die. He heard about the death of the deceased and was shocked. While he was in the police station, two police officers came one after another and took him in a jeep to Lalbag police station and asked him about the death of the deceased. He narrated the entire incident from beginning to end. One of the police officers reduced the oral account into writing at Lalbag police station which was read over and explained to P.W.1 and the same was treated as F.I.R. (Ext.1). P.W.1 further stated that he did not know the appellant Choudhury prior to the incident and that he identified him in a T.I. parade after the incident. He further stated that on the date of occurrence, the deceased had not lodged any sort of information at the police station nor any of them had sustained any injury before going to the police station on the date of occurrence.

140. Thus if evidence of P.W.1 given in the chief examination as enumerated above is assessed, it appears that he supported the prosecution case and implicated both the appellants in the assault on the deceased as well as on his assault. He further stated that due to such assault, the condition of the deceased became serious for which he was shifted to the hospital where he was declared dead.

141. Now, coming to his cross-examination, it has been elicited that since last four years, he was coming to the Court to look after his case and as a witness in other cases and occasionally, he was also coming to the police station along with the deceased to look after the cases of the Basti people at the time of litigation. He stated that the deceased was his agnatic relation and he called him as his brother. He admitted to have deposed in I.C.C. Case No. 28/1985 which was filed by Sukanta Naik (P.W.34), the son of the deceased after taking Legal Aid advice. Thus, P.W.1 is not only related to the deceased but also deposed in the complaint case filed by the son of the deceased against appellant Choudhury and another and he also appears to be accustomed with the Court proceedings and therefore, though his evidence cannot be discarded merely on the ground that he is either partisan or interested being a relative to the deceased, but his evidence requires scrutiny with more care and caution, so that neither the guilty escapes nor the innocent is wrongly convicted. If on such careful scrutiny, his evidence is found to be reliable and probable, then it can be acted upon. If it is found to be improbable or suspicious, it ought to be rejected. Law is well settled that in order to act upon the evidence of a solitary witness, the evidence must be clear, cogent, trustworthy and aboveboard.

142. P.W.1 stated that the assault on him as well as on the deceased was over by 10.30 p.m. to 11.00 p.m. Though he stated that four to five constables were present inside the police station during that period but only two of them i.e. P.W.8 and P.W.9 were examined but they did not support the prosecution case. He further stated that one Mishra Babu and one Panda Babu were also present in the police station. According to the I.O. (P.W.39), on 04.05.1985 A.S.I. of police namely Prafulla Mishra was in charge of the Station Diary of Purighat police station and on 05.05.1985 at 8 a.m. Chandrasekhar Panda took charge of the Station Diary and he examined both of them, but none of them have been examined during trial. P.W.1 further stated that one outsider of Bangalisahi was present during the assault and the said witness was examined as P.W.11 but he also did not support the prosecution case. He further stated that police officers were present at the police station when they entered inside at 7.30 p.m. and they had seen their arrival but none of them have been examined during trial to say about the arrival of P.W.1 and the deceased at 7.30 p.m.

143. In the F.I.R., P.W.1 stated that he was assaulted only by a police officer having mustache with a lathi who gave two blows on his hand and also a kick. Nothing has been stated therein about any assault made to him by appellant Pravat Mohanty. In the chief examination, he not only stated that appellant P.K. Choudhury kicked him and then gave four lathi blows on his left hand, left leg and left side cheek and slapped on his cheek but also stated that appellant Pravat Mohanty gave three to four kick blows on his buttock at one stage and also at a subsequent stage, he gave another kick on his buttock. of course, in the 161 Cr.P.C. statement, P.W.1 stated about kick blows given to him by appellant Pravat Mohanty. Therefore, even though the implication of appellant Pravat Mohanty in his assault was not there in the first information report but it was stated in his previous statement before the I.O. and also during trial. P.W.1 was medically examined on police requisition by the doctor (P.W.10), who noticed one swelling on the left wrist joint and one abrasion on the left leg and both the injuries have been opined to be simple in nature. Thus, in the ocular testimony of P.W.1, it appears that he has exaggerated the number of blows given to him by lathi by appellant P.K. Choudhury and also the number of kicks given to him by appellant Pravat Mohanty in comparison to his previous statement but these exaggeration in the number of lathi blows or kicks cannot be a factor to disbelieve the participation of the appellants in the assault of P.W.1.

144. Similarly so far as the assault on the deceased is concerned, the ocular testimony of P.W.1 indicates that, apart from the kick blows given to him by the appellants at different stages, he was assaulted by appellant P.K. Choudhury with a lathi from his head to feet for which he sustained severe bleeding and swelling injuries all over his body and again at another stage, appellant P.K. Choudhury assaulted him with the lathi which he was holding and after sometime, appellant Pravat Mohanty gave some blows with a long lathi to him and again appellant Pravat Mohanty assaulted him on his shoulder and other joints by a lathi.

145. At this stage, if the evidence of P.W.37, the doctor who conducted autopsy is taken into account, it appears that the deceased had sustained eleven external injuries, out of which the injuries nos. 1 to 9 were opined to be antemortem in nature. Those injuries were either abrasions or bruises except injury no. 5 which is a lacerated wound below the left knee in front without involving the bone. The abrasions or bruises noticed were on lower part of right thigh, right leg below the right knee, medial aspect of right leg above the medial malleolus, left leg below the left knee, left buttock, left elbow joint on the posterior aspect, left thigh and on right hand from above the elbow to the dorsum of palm. Thus all the injuries except one on the right hand were below the waist line of the deceased.

146. The contradictions relating to the narration of events in the first information report as well as in the previous statement have been confronted to P.W.1 in the cross examination by the defence counsel and it has been proved through the I.O. (P.W.39) that he has not stated before him that two months before death of the deceased, there was a dispute between him and his brother named Biswanath (P.W.20) for the landed property and that P.W.20 reported the matter at the police station. He has also not stated before him that deceased cautioned him saying that if they would not go to the Purighat police station, the consequences would be bad. He has not stated that he and the deceased went to the police station at 4.30 p.m., rather he stated that they went at about 7.30 p.m. He has not stated before the I.O. that when they entered inside the police station, they saw the appellant Pravat Mohanty sitting on a chair in his office and that both the appellants told the deceased “EEA SALA KASINATH TO EKA ASHICHU TO PUA KAHIN”. He has not stated before the I.O. that the deceased replied to police that he had not gone to the Legal Aid office and that only his son and wife had gone there. He has not stated before the I.O. that appellant P.K. Choudhury gave kicks specifically to his knee and the knee of the deceased. Though he stated to the I.O. about the assault by the appellant P.K. Choudhury, he did not specifically state that the assault was on head to foot. He has not stated before the I.O. that the appellant P.K. Choudhury gave lathi blows on the left leg and left cheek of the deceased. Though he stated about lathi blows on his left hand but he did not state that the number of blows were four. Though he stated before the I.O. that the deceased sustained swelling in his hands and legs, he did not state that the swellings were throughout his body. He has not stated before the I.O. that appellant P.K. Choudhury came with a constable and that the latter was holding a bottle of liquor. He has also not stated that the appellants abused him saying that he was the CHAMACHA of the deceased as he was a witness for the wife and son of the deceased in the Legal Aid matter. He has not stated that the appellant P.K. Choudhury gave a slap on his cheek and gave a second phase beating by lathi to the deceased before taking him to verandah. Though he stated that the deceased was taken to the verandah after assault, he did not state that the deceased went to the verandah by crawling. He did not state that he was forced to go to the verandah and that the appellant Pravat Mohanty asked him to lift the deceased and that because the deceased was about to die it was not possible on his part to lift him. Though he stated to him about assault to him, he did not specifically state that it was through kicks on the buttock numbering three to four. He has not stated about assault by appellant Pravat Mohanty on his buttocks by kicks on the verandah. He has also not stated that the deceased was again assaulted by a long lathi after he washed the deceased at the well. Though he stated before the I.O. that the appellant Pravat Mohanty assaulted the deceased because he did not take bread, he did not specifically state that the assault was on the shoulder. He did not state that he was compelled to take the deceased to the verandah of the police station. He has not stated that the condition of the deceased was serious before he was taken to the verandah of the police station. He has not stated that the deceased was in dying condition specifically when he was taken in the jeep.

147. In view of the contradictions appearing in the evidence of the solitary eyewitness P.W.1 as pointed out above, the question arises whether he can be said to be a truthful witness and implicit reliance can be placed on his evidence. In the case of Jagdish (supra), it is held that the sound and well established rule of law that conviction on the basis of a solitary eyewitness is undoubtedly sustainable if there is reliable evidence cogent and convincing in nature along with surrounding circumstances. The evidence of a solitary witness will therefore call for heightened scrutiny. In the case of Kathi Odhabhai Bhimabhai (supra), it is held that even if the presence of an injured witness cannot be doubted but if his evidence is in conflict with medical evidence, it is not safe to convict the accused on his sole testimony. In the case of Lallu Manjhi (supra), it is held that since the version of the incident given by the sole eyewitness who is also an interested witness on account of his relationship with the deceased and being inimically disposed against the accused persons is highly exaggerated and not fully corroborated by the medical evidence and the version of the incident as given in the Court is substantially in departure from the earlier version as contained and available in the first information report, no reliance can be placed on such testimony for the purpose of recording the conviction of the accused persons. In the case of Govindaraju @ Govinda (supra), it is held that where there is a sole witness to the incident, his evidence has to be accepted with caution and after testing it on the touchstone of evidence tendered by other witnesses or evidence otherwise recorded. The evidence of a sole witness should be cogent, reliable and must essentially fit into the chain of events that have been stated by the prosecution. When the prosecution relies upon the testimony of a sole eyewitness then such evidence has to be wholly reliable and trustworthy. Presence of such witness at the occurrence should not be doubtful. If the evidence of the sole witness is in conflict with the other witnesses, it may not be safe to make such a statement as a foundation of the conviction of the accused. In the case of Guman Singh (supra), it is held that if the testimonies of the witnesses would be treated to be falling in the third genus i.e. neither wholly reliable nor wholly unreliable, the Court has to treat the evidence with circumspection and look for corroboration in material particulars by reliable evidence/testimony, direct or circumstantial. In the case of Rai Sandeep (supra), it is held that what would be more relevant in the case of a ‘sterling witness’ is the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. There should not be any variation in the version of such a witness. To be more precise, the version of such a witness on the core spectrum of the crime should remain intact. The Court can accept the version of such a witness without any corroboration, basing on which the guilty can be punished. The other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charges alleged.

148. The Court is always concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. A witness in a criminal case can be categorized under three headings i.e. (i) wholly reliable (ii) wholly unreliable (iii) neither wholly reliable nor wholly unreliable. In case the Court finds a witness to be under the first category i.e. wholly reliable, the Court can act upon it even without seeking for any corroboration. If the witness comes under the second category i.e. wholly unreliable, the Court has to discard his evidence in toto. If the Court finds a witness to be under the third category i.e. neither wholly reliable nor wholly unreliable then the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. It is the duty of the Court to make an attempt to separate grain from the chaff, the truth from the falsehood where it is possible to do so. However, where the grain cannot be separated from the chaff because the grain and the chaff are so inextricably mixed up that in the process of separation, the Court would have to reconstruct an absolutely new case then it would not be proper and justify doing so. While considering the discrepancies in the evidence of the witness, the Court has to see whether there are material discrepancies or minor ones. Minor discrepancies in the evidence of the witness do not corrode his credibility. However, material discrepancies affect the truthfulness of a witness and it would not be safe to place reliance on the testimony of such a witness.

149. The discrepancies in the evidence of P.W.1 mainly relates to the manner of assault by the appellants to the deceased as well as to him, the number of blows and the parts of the body where both of them were assaulted and it seems that even in some respect of such assault, P.W.1 has made certain exaggeration during trial than what he mentioned in the F.I.R. as well as stated in his statement recorded under section 161 of Cr.P.C. The learned trial Court has also held that there are some discrepancies between the evidence of P.W.1 and the averments made in the F.I.R. and those discrepancies were brought to the notice of P.W.1 during his cross-examination, but the Court found that in spite of such discrepancies, on the whole, the basic and broad feature of what happened inside the police station have not been changed. The learned trial Court has also held that the occurrence took place in May 1985 and P.W.1 was examined in Court about a year thereafter and since he is not an educated person, the contradictions are bound to occur. The learned trial Court ultimately held that the evidence of P.W.1 should not be discarded on the ground that there were some differences between his testimony and his averments in the F.I.R. It seems that the learned trial Court has not taken into account the discrepancies between the evidence of P.W.1 vis-avis his statement before police recorded under section 161 of Cr.P.C. and it has only focused on the discrepancies of the evidence of P.W.1 with reference to the first information report.

150. It cannot be lost sight of the fact that after the death of the deceased came to notice, there was commotion in the Harijan Basti and among the sweepers of Cuttack Municipality and P.W.16 Biswanath Pandit who was the President of Cuttack Mehentara Sangh and President of Cuttack Municipal Employees' Union immediately brought the matter to the notice of Superintendent of Police and District Magistrate, Cuttack as the deceased was a Jamadar of Cuttack Municipality and a member of the Union. The Deputy Superintendent of Police, City arrived in Purighat Police Station on 05.05.1985 in the morning at about 10.30 a.m. followed by the D.I.G. of Police (Central Range), under whose direction, the Deputy Superintendent of Police took the informant (P.W.1) from Purighat police station to Lalbag police station. At the same time, it is the prosecution case that the Director General of Police passed an order in his residential office on 05.05.1985 directing P.W.39 to investigate into all the three cases. As per the evidence of the I.O. (P.W.39), the first information report was scribed in the hands of one A.S.I. of police named Mr. Jena in Lalbag police station and at that time City D.S.P. Umesh Mohapatra and other officers of Lalbag police station were present. In view of the background, when the F.I.R. was scribed in presence of City D.S.P. and has also been signed by him and it carries a vivid description of the events chronologically, even though the F.I.R. is not supposed to be an encyclopaedia of the entire events and cannot contain the minute details of the events but in the peculiar facts and circumstances, if any material aspect is not mentioned in the F.I.R. or stated in the 161 Cr.P.C. statement but stated for the first time in Court in an exaggerated manner for which contradictions have been proved, then certainly such contradictions cannot be just ignored on the ground that the witness deposed in Court about a year after the occurrence. The contentions raised by the learned counsel for the appellants that P.W.1 has made exaggerations while deposing in Court in some material aspect that took place during course of occurrence which he has not mentioned in the first information report as well as in his statement recorded under section 161 Cr.P.C., has some force but the primary question is whether the entire evidence of P.W.1 is to be discarded on account of such exaggerations?

151. From the contradictions proved, it appears that so far as the assault that took place inside Purighat police station is concerned, P.W.1 has not stated in his previous statement before the I.O. about appellant P.K. Choudhury giving kicks specifically to his knee and the knee of the deceased and the assault by appellant P.K. Choudhury to the deceased by a lathi on the head and on his (P.W.1) left leg and left cheek by same lathi and giving four blows to him. He has also not stated in his previous statement about the deceased sustaining swellings all over his body and appellant P.K. Choudhury giving a slap on his (P.W.1) cheek and also giving a second phase of beating by lathi to the deceased. He has also not stated in his previous statement about appellant Pravat Mohanty giving three to four kicks on his (P.W.1) buttock and assaulting the deceased again by a long lathi and that the assault was on the shoulder of the deceased.

152. In the case of Harbeer Singh (supra), it is held that the explanation to section 162 Cr.P.C. provides that an omission to state a fact or circumstance in the statement recorded by a police officer under section 161 Cr.P.C., may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact. Thus, while it is true that every improvement is not fatal to the prosecution case, in cases where an improvement creates a serious doubt about the truthfulness or credibility of a witness, the defence may take advantage of the same.

153. Though the prosecution case is that M.O.IV is the bamboo lathi and M.O. VII is the wooden batten with which the deceased as well as P.W.1 were assaulted but it is not understood as to why those weapons were not shown to P.W.1 for identification and to be marked as M.Os. at that stage when he deposed in Court since he is the only witness who stated about the assault inside the police station. Whether the prosecution had doubt that P.W.1 would not have supported the case of prosecution that M.O.IV and M.O. VII were the weapons of offence? The bamboo lathi which has been marked as M.O.IV was examined by the Scientific Officer (P.W.2) on the date of inspection at Purighat police station during midnight on 05.05.1985 and he noticed bloodstain on top portion of it and he marked the lathi as Ext.D. When the said lathi was produced along with other articles by the investigating officer, according to P.W.2, those were not under sealed cover. The articles were sent to the Director, S.F.S.L., Rasulgarh, Bhubaneswar on the prayer of the investigating officer through the learned S.D.J.M., Cuttack and on examination, it was found that there was human blood stain on the lathi. The other weapon of offence i.e. wooden batten (M.O. VII) was neither produced before P.W.2 nor sent to S.F.S.L. though it was seized on 05.05.1985 at 11.45 p.m. by the investigating officer at Purighat police station along with M.O.IV vide Ext.13 which was prior to the arrival of Scientific Officer.

154. In my humble view, it was the duty of the Public Prosecutor to show the weapons of offence M.O.IV and M.O. VII to P.W.1 for identification which would have strengthened the case of prosecution as he was the only witness to the assault.

155. Even though the learned trial Court has not taken into account the discrepancies between the evidence of P.W.1 vis-a-vis his previous statement before police and considered only with reference to the first information report but after considering the contradictions closely and carefully in the evidence of P.W.1 with reference to the first information report as well as his previous statement before police, I am of the humble view that the entire evidence of P.W.1 cannot be discarded for such contradictions.

D-1. Discussion on lodging of first information report:

156. A number of comments were made on the lodging of the first information report (Ext.1). While discussing the evidence of the informant, it is felt necessary to have a discussion on the same. It is contended that prior to lodging of the F.I.R. (Ext.1), information was given by P.W.1 to the police officials about the commission of cognizable offence and such information was the real first information report and not Ext.1, which was lodged at Lalbag police station at a later stage. It is further contended that Ext.1 has been scribed by one police officer in the presence of D.S.P., City, Cuttack and other police officials but the scribe of F.I.R. was not examined. According to the learned counsel for the appellants, Ext.1 is hit by section 162 of Cr.P.C. It is further contended that the lodging of the F.I.R. on 05.05.1985 at 11.00 a.m. is a doubtful feature, as according to the informant (P.W.1), the writing of the F.I.R. was completed on that day at about 4.00 p.m. It is further contended that since the inquest was held by the Executive Magistrate and the dead body was sent for post mortem examination in connection with Purighat/Lalbag P.S. Case No. 272/1985 and not in connection with Purighat/Lalbag P.S. Case No. 273/1985 even though those events took place after 11.00 a.m., therefore, the registration of Purighat/Lalbag P.S. Case No. 273/1985 at 11.00 a.m. is a doubtful feature. It is further argued that if the F.I.R. was registered at 11.00 a.m. on 05.05.1985 and despatched from the police station on that day itself as was shown in the formal F.I.R. which was a Sunday, being a sensational matter, it should have been placed before the learned S.D.J.M., Cuttack on that very day at his residential office but it was placed before the learned S.D.J.M. on 06.05.1985 which creates doubt that the F.I.R. was ante timed and it was never despatched on 05.05.1985 from the police station as shown in the formal F.I.R.

157. P.W.1 stated that on the following day of occurrence, in the morning, one police babu came in a car to Purighat police station and took him inside a room and remained with him for about ten minutes and asked him about the incident and he narrated about the incident including the assault. He further stated that after the departure of the said police officer, another police babu came in an Ambassador car and took him to the very same room and asked him about the incident, however again P.W.1 stated that the said police babu did not ask him anything but took him in his car to Lalbag police station.

158. Section 154 of Cr.P.C. states that every information relating to the commission of cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction and be read over to the informant; and every such information, whether given in writing or reduced to writing shall be signed by the person giving it and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in that behalf. An information given under sub-section (1) of section 154 of Cr.P.C. which is commonly known as ‘first information report’ is a very important document. It is the earliest and the first information of a cognizable offence recorded by an officer in charge of a police station. It sets the criminal law into motion and marks the commencement of the investigation. The informations made orally or in writing after the commencement of the investigation into the cognizable offence disclosed from the facts mentioned in the first information report and entered in the station diary by the police officer or such other cognizable offences as may come to his notice during the investigation, will be statements falling under section 162 of Cr.P.C. Thus there cannot be any dispute that any statement recorded during the investigation is covered by section 162 of Cr.P.C. No such information/statement can be treated as an F.I.R. and entered in the station diary again, as it would in effect be a second F.I.R. and the same cannot be in conformity with the scheme of the Code of Criminal Procedure.

159. Though P.W.1 stated to have narrated about the incident including the assault to one police officer who came to Purighat police station, but that officer was not the officer in charge of a police station, nor was the narration of events reduced to writing. The narration of events made by P.W.1 was not even entered in the Station Diary of Purighat police station. The accusation was against the Inspector in-charge of Purighat police station and a Senior S.I. of the said police station. At the time of occurrence, Purighat police station was not notified by the Government as an independent police station and the first information reports received in Purighat Police Station were registered in Lalbag Police Station. Therefore, no fault can be found in bringing P.W.1 to Lalbag Police Station for lodging the first information report.

160. It appears from the evidence of P.W.39 that after P.W.1 was taken to Lalbag Police Station, he gave an oral report which was reduced to writing by one A.S.I. of Police named Mr. Jena and certificate about reading over and explaining was also made by Mr. Jena and it was also signed by Mr. Umesh Mohapatra, D.S.P., City, Cuttack and treated as F.I.R. (Ext.1). P.W.1 has also stated that after he was taken to Lalbag police station in a jeep, he narrated the entire incident from beginning to end and one police officer reduced his saying into writing and the contents of the writing were read over and explained to him and he gave his signature. P.W.1 also proved the F.I.R. and his signature on it. of course, the scribe Mr. Jena has not signed or endorsed anything in Ext.1 and he has also not been examined during trial and Mr. Umesh Mohapatra in whose presence Ext.1 was lodged has also not been examined during trial but non-examination of the scribe of the first information report during trial cannot be a ground to doubt that the lodging of F.I.R. is a suspicious feature or it is fatal to the prosecution and it can at best be treated as mere irregularity which can be cured if it is otherwise proved. In view of the above discussion, I am of the humble view that no first information was lodged prior to lodging of Ext.1 which is the real F.I.R. and it cannot be said to be a statement made during investigation to be hit by section 162 of Cr.P.C.

161. Of course, it is brought out in the cross-examination of the informant (P.W.1) that the writing of the F.I.R. was completed on that day at about 4.00 p.m., but the I.O. (P.W.39) stated that by the time he reached Lalbag police station at 10.30 a.m., the formal F.I.R. was in the process of being written and registration of the case was completed at 11 a.m. and he took up investigation at that time. The I.O. further stated that in between 11 a.m. to 12 noon, he opened the case diary and wrote the gist of the F.I.R. in it and that the examination of P.W.1 by him continued from 12 noon to 1 p.m. and then he came to Purighat police station and reached there at 1.15 p.m., made the spot visit, inspected the police jeep and sent requisition to the Director of State F.S.L., Rasulgarh for sending Scientific Officers for collection of physical evidence. Therefore, I am of the humble view that the F.I.R. (Ext.1) is correctly shown to have been registered on 05.05.1985 at 11 a.m. and it is not ante timed as after registration of F.I.R., P.W.39 has started investigation and did various things as enumerated above. The statement of P.W.1 that writing of the F.I.R. was completed at about 4.00 p.m. is a misstatement. of course, the prosecution could have called for the station diary of Lalbag police station and proved the same to show what was the actual time of lodging of the F.I.R. in Purighat/Lalbag P.S. Case No. 273/1985 by P.W.1 but since the defence is raising a point regarding ante timing of the F.I.R., nothing prevented the defence to make a prayer before the Court in that respect. Therefore, I am of the humble view that for the non-proving of the station diary of Lalbag police station, the timing of lodging of the F.I.R. (Ext.1) cannot be doubted.

162. It is not in dispute that the inquest over the dead body was conducted by the Executive Magistrate as well as by appellant P.K. Choudhury on 05.05.1985 in connection with Purighat/Lalbag P.S. Case No. 272/1985 and inquest reports Ext.15 and Ext.16 were prepared respectively. The time of preparation of Ext.16 was in between 8.35 a.m. to 9 a.m. which was much prior to the registration of Ext.1, whereas Ext.15 was prepared at 11.17 a.m. which was just after registration of Ext.1. Since Purighat/Lalbag P.S. Case No. 272/1985 was also in connection with the assault on the deceased, though a different version was presented therein relating to such assault and in that case also offence under section 302 I.P.C. was added by the learned S.D.J.M., Cuttack on the prayer of P.W.38, I am of the humble view that merely because inquest over the dead body was conducted by the Executive Magistrate and the dead body was also sent for post mortem examination in connection with Purighat/Lalbag P.S. Case No. 272/1985, it would be an extremely farfetched conclusion to hold that by that time Ext.1 was not in existence for which Purighat/Lalbag P.S. Case No. 273/1985 could not be mentioned in inquest report Ext.15.

163. The learned counsel for the appellants raised contentions that the presence of Mr. Umesh Mohapatra, D.S.P., City, Cuttack at Lalbag police station at the time of lodging of F.I.R. (Ext.1) at 11 a.m. is a doubtful feature as there are evidence on record that at that time, he was present at Purighat police station and made certain station diary entries and he was also at S.C.B. Medical College & Hospital where inquest and post mortem over the dead body were conducted. It was argued that a person cannot remain present at three different places at one time which is an additional feature to show that Ext.1 was lodged at a later stage and not at 11 a.m. and the City D.S.P. signed on it but it was ante timed.

164. In my humble view, this contention has no force. P.W.39, the I.O. specifically stated that Ext.1 was scribed in presence of City D.S.P. who also signed on it. Ex.1 shows it was signed by City D.S.P. at two portions. P.W.39 admits that S.D. Entry No. 182 dated 05.05.1985 of Purighat police station was made in the hands of City D.S.P. and such entry was made at 10.30 a.m. and in the end of the entry below his signature, the time 10.45 a.m. has been written. P.W.39 further states that City D.S.P. Sri Mohapatra was present in Purighat P.S. on 05.05.1985 between 10.30 a.m. to 10.45 a.m. of course, P.W.34, the son of the deceased stated that he saw the Collector, S.P. and City D.S.P. at S.C.B.M.C. Hospital at about 11 a.m. but it cannot be said that he was checking his watch all the time to remember at what time he saw them exactly. It appears from the evidence on record that the distance between Purighat and Lalbag police station is just one and half k.m. and according to P.W.39, it ordinarily takes five minutes to cover the distance in a jeep. Therefore, in view of the distance between Purighat P.S. to Lalbag P.S. and from Lalbag P.S. to S.C.B.M.C. Hospital, it cannot be said that the duties performed by City D.S.P. Sri Umesh Mohapatra one after the other at three different places was an impossible task. This cannot be the reason to doubt that F.I.R. (Ext.1) was not lodged at 11 a.m.

165. Similarly, delay in placement of F.I.R. (Ext.1) before Magistrate in this case cannot be said to be so unreasonable that it would be factor to doubt about timing of its lodging. The F.I.R. was lodged on 05.05.1985 at 11 a.m. which was a Sunday and it was shown to have been dispatched from the police station on the very day, however, it was placed before the learned S.D.J.M., Cuttack on the next day i.e. 06.05.1985 who signed it. Rule 148(a) of Orissa Police Rules states that the original of the first information report shall be sent without delay to the S.D.J.M. having jurisdiction and the copies of such report shall be sent to the Superintendent, Circle Inspector and S.D.P.O., if there be any. Therefore, the first information report should reach the Magistrate immediately and without undue delay. However, mere delay in sending the first information report to the Magistrate cannot be a ground to throw away the prosecution case if the evidence adduced in the case is found to be credible and unimpeachable.

166. In the case of Arjun Marik v. State of Bihar, (1994) 2 SCR 265, the Hon'ble Court held as follows:

“…The forwarding of the occurrence report is indispensable and absolute and it has to be to forwarded with earliest despatch which intention is implicit with the use of the word ‘forthwith’ occurring in Section 157 Cr.P.C., which means promptly and without any undue delay. The purpose and object is very obvious which is spelt out from the combined reading of Sections 157 and 159 Cr.P.C. It has the dual purpose, firstly to avoid the possibility of improvement in the prosecution story and introduction of any distorted version by deliberations and consultation and secondly to enable the Magistrate concerned to have a watch in the progress of the investigation.”

167. In the case of Motilal (supra), it is held that there is a purpose behind the enactment of section 157 of the Code of Criminal Procedure. The statutory requirement that the report has to be sent forthwith itself shows the urgency attached to the sending of the report. In a given case, it is open to the prosecution to indicate reasons for the delayed dispatch or delayed receipt. This has to be established by evidence.

168. It is common knowledge that on Sunday in the residential office of the S.D.J.M. or Magistrate in-charge, apart from the cases of forwarding of accused persons, only exceptional urgent matters are placed on being moved. After the F.I.R. is dispatched from the police station, as per practice, it first comes to the office of Court Sub-Inspector (in short ‘C.S.I. Office’) where it is entered in G.R. Case register [i.e. Form No. (R) 2 as per G.R.C.O. (Criminal) Vol.II] serially with date and G.R. Case number is allotted to the said F.I.R. and then the C.S.I. places the F.I.R. before the S.D.J.M. or concerned J.M.F.C. who after perusing the same puts his signature and date on each page of the F.I.R., on the first order sheet of the case record and also in the G.R. Case register. After G.R. Case number is allotted to an F.I.R., it should be placed immediately placed before the concerned Magistrate for perusal and to make necessary endorsements, but sometimes it becomes not possible to place the F.I.R. before the Magistrate on the same day for some genuine reasons. If the defence pleads that the F.I.R. was not actually dispatched from the police station on the day as it was shown in the formal F.I.R. for which it could not be placed before the Magistrate on the date of its forwarding, then the first checkpoint is when it was received and registered in the C.S.I. Office and the defence can call for the said register in accordance with law during trial to prove it, otherwise the vague contentions in that respect should not be accepted.

169. In view of the aforesaid discussion, the comments made by the learned counsel for the appellants on the lodging of the first information report (Ext.1) are not acceptable.

E. Whether defence plea is acceptable:

170. The defence plea of the appellants was that on 04.05.1985 the deceased Kasinath Nayak came to Purighat police station at about 9.50 p.m. to lodge a first information report regarding assault on him on Kathajori river embankment at about 9 p.m. by some unknown persons and that he had sustained injuries on account of such assault. P.W.1 accompanied the deceased to lodge the report and on the F.I.R. of the deceased, Purighat/Lalbag P.S. Case No. 272/1985 was registered by appellant Pravat Mohanty, who directed appellant P.K. Choudhury to investigate the case and accordingly the later took up investigation and maintained case diary.

171. In order to substantiate its plea, apart from the oral evidence, the defence relied upon the F.I.R. lodged by the deceased in Purighat/Lalbag P.S. Case No. 272/1985, the case diary maintained in the said case by appellant P.K. Choudhury marked as Ext.63, the station diary entries dated 04.05.1985 of Purighat police station marked as Exts.C, D, E, E/1, F, F/1.

172. Before going to discuss about the documentary evidence, it is felt necessary to examine the oral evidence related to such plea. P.W.1 specifically stated in the chief examination that on the date of occurrence, the deceased had not lodged any sort of information at the police station and they had not sustained any sort of injury before going to the police station on the date of occurrence. He further stated that on the date of incident, there was no other incident regarding the assault on the deceased by his opponents on the Kathajori river embankment near Rajabagicha School. P.W.1 was questioned by the learned defence counsel on the lodging of the first information report by the deceased but P.W.1 denied that he along with the deceased had been to Purighat police station on 04.05.1985 to lodge any first information report relating to the assault on the deceased on the river embankment at about 9.00 p.m. on that day and he also denied to have made any statement before police in connection with that case and he also specifically denied that the deceased came to the police station sustaining injuries.

173. P.W.7, the wife of the deceased was also asked about the incident stated to have taken place on the Kathajori river embankment in front of Rajabagicha High School in the cross-examination by the learned defence counsel but she denied that the deceased sustained severe injuries at about 9.00 p.m. on 04.05.1985 on account of any such incident and that the deceased had been to the police station to lodge information in connection with that incident.

174. P.W.11 stated to have seen the deceased as well as P.W.1 in Purighat police station at about 9.30 p.m. but he stated not to have seen any sort of injury either on the person of the deceased or on the person of P.W.1. P.W.13 also stated to have visited Purighat police station on 04.05.1985 past 10.00 p.m. and remained there for five minutes but he stated not to have seen any sort of injury on the deceased and P.W.1. These two witnesses have completely resiled from their previous statements made before the I.O. and the Magistrate under section 164 Cr.P.C. and therefore, the learned trial Court has not rightly placed any reliance on their evidence.

175. P.W.33 Bhaghyadhar Bal whose house was adjacent to Rajabagicha High School stated that on the lunar eclipse day of year 1985, he had not seen any disturbance taking place near Rajabagicha High School or heard any hullah though he was present in his house all through. In view of the distance of his house from main Kathajori road, the learned trial Court rightly has not placed any reliance on his testimony.

176. Thus, not a single witness examined on behalf of the prosecution has stated anything in support of the defence plea relating to any incident on the Kathajori river embankment.

177. The learned counsel for the appellants contended that since the deceased sustained injuries mainly below the waistline and he was wearing dhoti and half shirt, it might have missed the notice of others. It is somewhat difficult to comprehend this argument. If the deceased came to the police station with the type of bleeding injuries as noticed by the doctor conducting post mortem examination and he had passed stool, urine on his dresses and was vomiting and not even in a position to walk properly, it could not have missed the notice of others including P.W.1 and in such a condition, the deceased would not have been allowed to enter into various rooms of police station to make the floor dirty.

178. Coming to the documentary evidence, the first information report stated to have been lodged by the deceased carries a signature ‘Kasinath Nayak’ on the bottom portion which has been marked as Ext.A during the cross-examination of P.W.31. The said F.I.R. is shown to have been received on 04.05.1985 at 10.00 p.m. at Purighat police station and it was sent to Lalbag police station where it was registered under the signature of Inspector in charge of Lalbag police station on the same day at 10.30 p.m. and it is specifically mentioned therein that appellant P.K. Choudhury had already taken up investigation. The signature of the I.I.C. of Lalbag police station has been marked as Ext.A/1. There is no material as to who scribed the F.I.R. which was in Odia language stated to have been presented by the deceased. P.W.39 stated that he compared the standard writings of all the employees of Purighat police station with the disputed F.I.R. but the writings did not tally and therefore, he could not know as to who scribed the Odia portion of the disputed F.I.R. in Purighat/Lalbag case no. 272/85. P.W.34, the son of the deceased specifically stated that the signature Ext.A did not belong to his father and that usually his father wrote his name by using ‘Talabyasa’. P.W.31, the Senior Clerk in the Health Office of Cuttack Municipality though identified Ext.A to be the signature of the deceased when confronted to him by the learned defence counsel in the cross-examination but it is not understood as to how he was so confident about it particularly when in other signatures of the deceased proved on the official documents, ‘Talabyasa’ have been used whereas in Ext.A, ‘Dantasa’ has been used. He was not present when Ext.A was put on the F.I.R. and he was examined in Court one year and four months after the occurrence. Though the defence has cleverly elicited about Ext.A on the last but one question of the cross-examination of P.W.31 and thereafter the prosecution has not put any question on this aspect by way of re-examination but it is difficult to accept Ext.A to be the signature of the deceased solely on the testimony of P.W.31. The handwriting expert (P.W.27) after examining the admitted handwritings of the deceased and the disputed signature Ext.A, opined that for want of sufficient basis, it was not possible to say as to whether the person who wrote the admitted signatures and writings marked as K/1 to K/11 also wrote the disputed signature which has been marked by him as X-1. He further stated that the disputed signature marked X-1 revealed certain amount of freedom of stroke and some amount of resemblance in inherent characteristic when compared with the admitted signatures and writings marked K/1 to K/11. Thus the evidence of P.W.27 is no way helpful either to the prosecution or to the defence to arrive at a conclusion whether the Odia signature ‘Kasinath Nayak’ appearing on the F.I.R. of Purighat/Lalbag P.S. Case No. 272/1985 is that of the deceased or not. The learned trial Court held that the handwriting expert's opinion is confusing as he stated to have found some amount of resemblance in inherent characteristic with the admitted writing and simultaneously said that sufficient characteristic and similarities could not be found. The learned trial Court accepted the statement of P.W.34 to hold that the disputed signature reading ‘Kasinath Nayak’ in the F.I.R. relating to Purighat/Lalbag P.S. Case No. 272/1985 was not in the hands of the deceased.

179. P.W.39 who took charge of investigation of Purighat/Lalbag P.S. Case No. 272/1985 stated that the case diary in the said case was opened by appellant P.K. Choudhury and first five sheets of the case diary were written in the handwriting of the said appellant. He further stated that though the date of seizure in Ext.23/3 was shown to have been prepared on 04.04.1985 but the appellant P.K. Choudhury put his signature and below it, he had put the date as 05.05.1985. He further stated that the witnesses shown to have been examined by appellant P.K. Choudhury in Purighat/Lalbag P.S. case No. 272/1985 were re-examined but they did not support their alleged previous statements made before the appellant and some of them even denied to have been examined by him.

180. Now the crucial question comes for consideration is whether Purighat/Lalbag P.S. Case No. 272/1985 is an out and out false case and the F.I.R. of the said case carries an imaginary story and the so-called signature of the deceased vide Ext.A is a forged one. As already discussed, there is lack of oral evidence that such an occurrence at all took place on the date, time and place as pleaded by the defence. There is no evidence as to who scribed the F.I.R. and P.W.1 who accompanied the deceased from Basti to Purighat police station has denied about any such incident of assault on the deceased being taken place on the Kathajodi river embankment as well as any F.I.R. lodged by the deceased in connection with his assault and no other witness stated about it. Final report was submitted in that case by P.W.39 indicating it to be a false case and thus there is nothing to support the defence plea. The learned trial Court has vividly dealt with entire defence plea very carefully and cautiously and came to hold that Purighat/Lalbag P.S. Case No. 272/1985 is a false case and the alleged investigation by appellant Pratap Kumar Choudhury was just a paper transaction. Law is well settled that the Court may accept the fact proved through expert's evidence when it has satisfied itself on its own observation that it is safe to accept the opinion of the expert. After closely examining the admitted signatures of the deceased on the documents i.e. in Exts.5 to 5/5, 6, 7, 8 and comparing those signatures minutely with disputed signature Ext.A, I am of the humble view that Ext.A does not tally with signatures of the deceased on official documents.

181. The learned counsel for the appellants argued that since the F.I.R. in Purighat/Lalbag P.S. Case No. 272/1985 reached Lalbag police station at 10.30 p.m. on 04.05.1985 and I.I.C., Lalbag police station has put his signature, it cannot be said that the signature Ext.A is a forged one or that the narration of events in that F.I.R. is a fabricated version. It was further argued that I.I.C., Lalbag police station should have been examined by prosecution to clarify the position. This contention is not acceptable as merely because the F.I.R. reached Lalbag police station at 10.30 p.m. on 04.05.1985, it cannot be said the narration of events therein are correct. According to P.W.38, Ext.A/1 is the endorsement and signature of Mr. Mahakud, S.I. of Lalbag police station. The said Mr. Mahakud has mentioned himself as I.I.C., Lalbag P.S. below his signature and date in Ext.A/1. Neither the F.I.R. forwarded to Lalbag police station was written in the presence of said Mr. Mahakud nor it is the defence plea that the deceased had put his signature in presence of Mr. Mahakud. Even if such F.I.R. reached at Lalbag police station at 10.30 p.m. on 04.05.1985, the point for consideration is whether any such occurrence as narrated in the said F.I.R. had at all taken place and whether the deceased lodged the F.I.R. by putting his signature as appearing on the F.I.R.

182. The learned counsel for the appellants submitted that Purighat/Lalbag P.S. Case No. 272/1985 was not investigated properly and final report was submitted. It was argued that in the case diary of the said case, appellant P.K. Choudhury has mentioned the presence of one Biswanath Bardhan during his spot visit on 04.05.1985 but the said witness was not cited as a charge sheet witness. In my humble view, the spot visit by the appellant in the late night itself appears to be a doubtful feature inasmuch as who would have identified the alleged spot of assault to the appellant in the deep night when neither the deceased nor P.W.1 accompanied him. It further appears as if in that night, the witness Biswanath Bardhan was waiting for the arrival of the appellant to give his statement on the river embankment. The possibility of making such entries relating to spot visit and examination of witness to make out a plea of alibi from 10.15 p.m. onwards from the police station cannot be ruled out.

183. According to the learned counsel for the appellants, if the said witness Biswanath Bardhan on examination would have denied about any occurrence that took place on the river embankment as per defence plea, that would have dislodged the entire defence case and therefore, non-citing of such an important witness in the charge sheet indicates that the investigation was conducted in an unfair manner with malafide intention. The fact remains that final report was submitted in Purighat/Lalbag P.S. Case No. 272/1985 vide Ext.64 indicating the case to be false. Reasons have been assigned therein as to why the case was a false one. No one has challenged such report. P.W.39 has also clarified as to why he submitted final report in that case. In the case in hand, it is not required to be adjudicated whether final report was submitted rightly or in an unfair manner. P.W.39 stated that he examined Biswanath Bardhan on 19.06.1985 but not cited him as charge sheet witness. If according to the defence, Biswanath Bardhan was such an important witness who could have thrown light about the alleged incident taking place on Kathajori river embankment on 04.05.1985 at 9 p.m., nothing prevented the defence to make a prayer before the learned trial Court to summon such a witness at appropriate stage for examination as a defence witness.

184. The case diary of Purighat/Lalbag P.S. Case No. 272/1985 maintained by appellant P.K. Choudhury vide Ext.63 indicates that injury requisition in respect of the deceased for his examination in the casualty of S.C.B. Medical College & Hospital was prepared prior to 10.15 p.m. when he left for spot visit. The Station Diary of Purighat police station dated 04.05.1985 at serial no. 164 at 11 p.m. indicates about receipt of injury report of Kasinath Naik (deceased) from appellant P.K. Choudhury, who was the I.O. of the case. In the left hand side of the said S.D. entry, it is mentioned that the Havildar was out with injured. When the deceased was present in Purighat police station all through from the time of his arrival till he was taken in a police jeep after midnight to Casualty Department and was declared dead there by the doctor (P.W.14) at 3.15 a.m., the preparation of his injury requisition prior to 10.15 p.m. by appellant P.K. Choudhury and also receipt of injury report at 11 p.m. are highly suspicious features. Similarly if as per the case diary (Ext.63) prepared by the appellant P.K. Choudhury, he left Purighat police station at 10.15 p.m. on 04.05.1985 and returned at 12 midnight how could he be remained present at 11.00 p.m. at the police station to hand over the injury report as mentioned in the station Diary.

185. Of course, it is not necessary for the defence to prove its case with the same rigour as the prosecution is required to prove its case. It is sufficient for the accused to prove the defence on the touchstone of preponderance of probability. The defence can succeed in throwing reasonable doubt on the prosecution case which is sufficient to enable the Court to reject the prosecution version. Once the defence gives reasonable and probable explanation, it is for the prosecution to prove affirmatively that the explanation is false.

186. The written report stated to have been presented by the deceased was received at 10.00 p.m. at Purighat police station and the endorsement of appellant Pravat Mohanty treating the same as F.I.R. and directing appellant P.K. Choudhury to take up investigation have been mentioned in it and the hand writings have been proved by P.W.39. Even though this F.I.R. stated to have reached at 10.30 p.m. at Lalbag police station and Purighat/Lalbag P.S. Case No. 272/1985 was registered but while sending the F.I.R. in Purighat/Lalbag P.S. Case No. 273/1985 to the S.D.J.M., Cuttack on 05.05.1985, the F.I.R. stated to have been lodged by the deceased on 04.05.1985 was not sent to Magistrate for which it was placed before the learned S.D.J.M. on 07.05.1985 which was two days after the date of lodging of F.I.R.

187. Now, let me discuss about the two seizure lists prepared by appellant P.K. Choudhury in connection with Purighat/Lalbag P.S. Case No. 272/1985 which were marked as Ext.23/3 and Ext.42. Ext.23/3 indicates seizure of one half shirt and one napkin on production of deceased at 10.05 p.m. at Purighat police station. The witness to the seizure namely Maheswar Nayak who was examined as P.W.17 did not support the seizure. P.W.17 stated that four to five days of the death of the deceased, appellant P.K. Choudhury called him and took his signature vide Ext.23 on a written paper and that he had not gone through that paper and was not aware that it was a seizure list. In my humble view, such a statement of P.W.17 is not acceptable as appellant P.K. Choudhury was placed under orders of suspension on 05.05.1985 and he stopped investigation of Purighat/Lalbag P.S. Case No. 272/1985 at 3 p.m. on that day and P.W.38 took over charge of investigation of that case on 06.05.1985. It is not understood as to why the half shirt and napkin under seizure list Ext.23/3 were not seized in the presence of P.W.1 who accompanied the deceased to the police station. Though the date and hour of seizure was mentioned in Ext.23/3 as 04.05.1985 at 10.05 p.m. on the top but appellant Pratap Kumar Choudhury has put the date as 05.05.1985 below his signature in the said seizure list. Moreover, when the case was registered at 10.30 p.m. at Lalbag police station as Purighat/Lalbag P.S. Case No. 272 of 1985, it is not understood as to wherefrom the appellant P.K. Choudhury got the P.S. Case number to mention it on the seizure list prepared at 10.05 p.m. In the case diary, appellant P.K. Choudhury has inserted this seizure aspect in between the gist of the F.I.R. and examination of the deceased in small letters. The reply given by the appellant P.K. Choudhury in his accused statement in question no. 46 on the seizure list Ext.23/3 is highly unsatisfactory as he stated that the seizure started at 10.00 p.m. and it was completed at 12.00 p.m. and therefore, he put his date as 05.05.1985. Appellant P.K. Choudhury seems to have left the police station for spot visit at 10.15 p.m. as per the case diary prepared by him and closed the diary at 12.00 midnight. Therefore, the explanation given by the appellant that the seizure of a half shift and a napkin continued for two hours cannot be accepted by any stretch of imagination. It seems that the wearing apparels of the deceased like dhoti, ganji and deunria and steel ring which were marked as M.Os.I, II, III and VI were produced by P.W.8 after post mortem examination before the I.O. and accordingly, those were seized under seizure list Ext.11. The shirt and napkin seized by the appellant under seizure list Ext.23/3 were also sent for chemical examination being marked as ‘K’ and ‘L’ and the C.E. report marked as Ext.60 indicates that the blood stain were detected in those two exhibits.. The half shirt and the napkin were not shown to P.W.1 to prove whether those were of the deceased or not, however the wife of the deceased being examined as P.W.7 identified the shirt (M.O. VIII) to be that of her husband and further stated that the deceased had put on that shirt while going to the police station. In my view, the articles seized under Ext.23/3 can be said to be of the deceased though there are some irregular features in the preparation of seizure list as already discussed.

188. Coming to the other seizure list prepared by appellant P.K. Choudhury i.e. Ext.42, it appears that on 05.05.1985 at 7.30 a.m., some soil containing the vomiting substance of the deceased was seized in front of the Casualty Department. P.W.36 Trinath Nayak is a witness to the said seizure list but he stated that he did not notice any vomited substance in the soil. P.W.35 Bulu Nayak stated that appellant P.K. Choudhury asked him to collect some wet sand lying in front of the casualty verandah which was collected by him and seized but he did not notice any sign of vomiting. The earth with vomiting substance was also sent for chemical analysis being marked as ‘M’ and the chemical examiner did not find any vomiting substance in it as per the C.E. report Ext.60. The seizure list Ext.42 seems to have been prepared to show that the deceased was alive when he arrived at Casualty Department and there he vomited. However, P.W.30 who was the attendant of the Casualty Department and was on night duty on 04/05.05.1985 stated that police brought the deceased to Casualty at 3.00 a.m. and he informed the doctor and the deceased was taken to the bed in the Casualty Department and the doctor on examining him, declared him dead. He specifically stated that he had not seen the deceased vomiting. In his cross-examination, he has stated that he had not seen any saliva coming either from the nose or mouth of the deceased. P.W.14 is the doctor who was in-charge of Casualty stated that he received one Kasinath Naik dead at 3.15 a.m. on 05.05.1985. Therefore, the contents of this seizure list are false and preparation of such a document makes the conduct of the appellant P.K. Choudhury more suspicious.

189. As per the case diary prepared by appellant Pratap Kumar Choudhury in Purighat/Lalbag P.S. Case No. 272/1985, he left Purighat police station at 10.15 p.m. on 04.05.1985 for investigation of the case and returned at 12 midnight. The station diary entries nos. 163 and 166 dated 04.05.1985 of Purighat police station also indicate about the same. Within fifteen minutes of his stay at Purighat police station from 10 p.m. to 10.15 p.m., appellant P.K. Choudhury seems to have opened the case diary in that case, mentioned the gist of the F.I.R. stated to have been presented by the deceased, seized some wearing apparels of the deceased under a seizure list, examined the deceased, issued injury requisition for examination of the deceased and also examined P.W.1 and recorded his statement. The learned trial Court rightly held that within such a short span of fifteen minutes, it was not possible on the part of appellant Pratap Kumar Choudhury to do so many things including arresting the deceased and P.W.1 in connection with Purighat/Lalbag P.S. Case No. 269/85 where they were not even named as accused in the F.I.R. The case diary seems to have been so prepared for the purpose of taking plea of alibi if contingency so arises and to show that he had not participated in the assault on the deceased and P.W.1 that the prosecution put forth to have taken place after 10.15 p.m.

190. It is contended that since appellant P.K. Choudhury was placed under orders of suspension on 05.05.1985 for which he stopped investigation of Purighat/Lalbag P.S. Case No. 272/1985 and he was present in S.C.B. Medical College from early morning of 05.05.1985 till 12.30 p.m., there was no scope on his part to make false entries as alleged by the prosecution. As already indicated, most of the entries in the case diary of the said case including the preparation of one seizure list were prior to his leaving the police station at midnight. Another irregular feature was noticed in the preparation of the inquest report (Ext.16) by him in minimizing the injuries on the deceased. The appellant maintained the case diary till 3 p.m. on 05.05.1985. Therefore, the contentions are not acceptable.

191. In view of the foregoing discussions, the defence plea that any occurrence of assault on the deceased took place on the Kathajori river embankment on 04.05.1985 at about 9.00 p.m. in which the deceased sustained injuries and came to lodge the first information report to Purighat police station and accordingly, the F.I.R. was registered and that as per the direction of appellant Pravat Mohanty, appellant P.K. Choudhury took up investigation of the case and maintained case diary vide Ext.63 mentioning all correct state of affairs is not acceptable. I am of the considered view that the deceased had not presented any F.I.R. on 04.05.1985 at 10 p.m. at Purighat police station and a false F.I.R. is shown to have been presented by him which carries the forged signature of the deceased vide Ext.A.

F. Lacunas in investigation:

192. The learned counsel for the appellants pointed out certain lacunas in the investigation which is now required to be discussed. It is contended that the evidence of P.W.39 that he received oral communication in the residential office of the D.G. of Police at about 9.00 a.m. on 05.05.1985 in which he was directed to investigate three cases i.e. Purighat/Lalbag P.S. Case Nos. 269/1985, 272/1985 and 273/1985 is unbelievable as by that time the F.I.R. in Purighat/Lalbag P.S. Case No. 273/1985 was not registered and it was only registered according to the prosecution on that day at 11.00 a.m. It is further argued that when the office order vide Ext.66 was issued on 06.05.1985 posting P.W.39 in Purighat police station as Addl. I.I.C. as well as directing him to be the investigating officer of all the three cases, how could and under what authority he investigated Purighat/Lalbag P.S. Case No. 273/1985 on 05.05.1985 after the registration of the first information report. It is further argued that though direction was issued to P.W.39 to take up investigation of Purighat/Lalbag P.S. Case Nos. 269/1985 and 272/1985 simultaneously along with Purighat/Lalbag P.S. Case No. 273/1985 but he took charge of investigation of those two cases only on 26.05.1985. It is further argued that many important witnesses who could have substantiated the defence case were not deliberately examined and even if some of them were examined but they were not shown as charge sheet witnesses. It is further argued that P.W.39 did not submit charge sheet against some of the F.I.R. named accused persons in Lalbag/Purighat P.S. Case no. 269 of 1985 whereas he submitted charge sheet against some who were not even named in the first information report. All these aspects, according to the learned counsel for the appellants indicate about the lapses in the investigation made by P.W.39 for which the appellants are entitled to benefit of doubt.

193. In the case of State of W.B. v. Mir Mohammad Omar reported in (2000) 8 SCC 382, the Hon'ble Supreme Court observed as follows:

“41…..Castigation of investigation unfortunately seems to be a regular practice when the trial courts acquit the accused in criminal cases. In our perception, it is almost impossible to come across a single case wherein the investigation was conducted completely flawless or absolutely foolproof. The function of the criminal courts should not be wasted in picking out the lapses in investigation and by expressing unsavoury criticism against investigating officers. If offenders are acquitted only on account of flaws or defects in investigation, the cause of criminal justice becomes the victim. Effort should be made by courts to see that criminal justice is salvaged despite such defects in investigation……..”

194. P.W.39 stated that on 05.05.1985, he was ordered to take charge of investigation in Purighat/Lalbag P.S. Case Nos. 269/2985, 272/1985 and 273/1985 and accordingly, he proceeded to Lalbag police station where he found P.W.1 was lodging the F.I.R. before City D.S.P. who registered Purighat/Lalbag P.S. case No. 273/1985. He further stated that he was so directed to take charge of investigation by the Director General of Police. In the cross-examination, he stated that the order was communicated to him by the D.G.-cum-I.G. himself. He further stated that he received oral communication of the Director General of Police directing him to be the investigating officer on 05.05.1989 which was a Sunday and the written communication was received on 06.05.1985. According to P.W.39, he received oral communication in the residential office of D.G. of Police at about 9.00 a.m. in the morning. He further stated that he was posted in Purighat police station by the D.G.-cum-I.G. and the said order was passed simultaneously with the order directing him to be the I.O. Ext.66 is the copy of the order of D.G. of police, Orissa, Cuttack communicated to P.W.39. In the cross-examination, it has been elicited that the residential office of D.G. of Police did not remain close on Sunday. The I.O. fairly admitted that he had not mentioned in the case diary that he received oral intimation from D.G. of police.

195. It appears that when the death news of the deceased on account of his assault in Purighat police station spreaded, P.W.16 approached the Superintendent of Police and District Magistrate and talked with D.I.G. of Crime Branch and taking into account the situation precipitated by consequential commotion, the D.G. of police orally directed P.W.39 to take up investigation on 05.05.1985 but the written order was communicated to P.W.39 on 06.05.1985. The said written order dated 06.05.1985 has been marked as Ext.66. It is not the case of the defence that P.W.39 was not competent to investigate the cases. If the residential office of the D.G. of police was open on 05.05.1985 where P.W.39 received the oral direction from the D.G. of Police, it sounds absurd that he would have insisted the D.G. of police to pass a written order for proceeding to Purighat police station to take up investigation particularly when sensitiveness of the matter required immediate action otherwise there would have been growing public resentment. Therefore, no fault can be found with P.W.39 in obeying the oral order of his superior authority and coming to Lalbag police station to investigate the cases. It appears from the evidence of P.W.1 that while he was in Purighat police station, two police officers came in car one after another in the morning and the first police officer interrogated him for ten minutes about the incident and the second officer took him in his car to Lalbag police station for lodging the first information report. The station diary entry no. 182 dated 05.05.1985 of Purighat police station made at 10.30 a.m. by City D.S.P. also corroborates the evidence of P.W.1. At Lalbag police station, steps were taken to reduce the oral account of P.W.1 into writing. of course, there is some confusion relating to timing of the oral order passed by D.G. of police to P.W.39 to take up investigation of the cases, but that would not be factor to view the lodging of F.I.R. by P.W.1 and taking over investigation by P.W.39 in a suspicious manner. In a sensational case like this, it was the utmost duty of a responsible and prudent investigating officer not only to take up the investigation as per the order of the superior authority but also to take all consequential steps as quick as possible so that the evidence should not disappear particularly when it had come to light that by that time another version of the occurrence relating to the injuries sustained by the deceased was presented on the so-called F.I.R. of the deceased and the appellant P.K. Choudhury was carrying out investigation of the said case as per the direction appellant Pravat Mohanty.

196. The evidence of P.W.39 clearly indicates that in a non-stop way, he carried out investigation by examining witnesses, making spot visit, conducting seizure of articles, sending information to Scientific Officers to visit the spot, going through the station diary entries of Purighat police station and also remaining present with the scientific team during their spot visit in the midnight. All these things performed by P.W.39 on a single day i.e. on 05.05.1985 would have got delayed had he waited for the written order which he received on the next day i.e. 06.05.1985. Therefore, there was no illegality on the part of P.W.39 to investigate the matter on the oral direction of the D.G. of Police before receipt of Ext.66.

197. Coming to non-examination/non-citation of some witnesses in the charge sheet, it is the settled law that investigation is in the absolute domain of the investigating agency. Whom the investigating officer would examine during course of investigation and whom he would cite as charge sheet witnesses depends completely on him, of course the investigation is to be done in an impartial and fair manner to ascertain the truth. Merely because some of the witnesses who might have supported the defence case were not examined during course of investigation nor cited as charge sheet witnesses, that itself would not be a factor to reject the prosecution case. If the defence felt that any material witnesses were left out from the list of charge sheet witnesses, even though their statements were on record or any particular witness should have been examined to throw light on certain aspects, the defence could have filed appropriate application to summon such witnesses assigning reasons for their examination. The trial Court on being satisfied that the examination of any such witnesses mentioned in the application of the defence counsel was necessary for arriving at truth and for just decision of the case, would have allowed such petition and permitted such witnesses to be examined as ‘defence witnesses’. Even the Court has got power to examine any witness as ‘Court witness’ for the ends of justice. The defence has not taken any step to examine a single witness as defence witness though it has proved certain documents. Therefore, I am of the humble view that non-examination/non-citation of some witnesses in the charge sheet cannot be a factor to hold that the investigation was perfunctory.

198. The next contention was raised that Purighat/Lalbag P.S. Case No. 269/1985 was not investigated properly for which accused persons named in the F.I.R. were not charge sheeted whereas others whose name do not find place in the F.I.R. have been charge sheeted. The first information report in Purighat/Lalbag P.S. No. 269/1985 was registered against seven accused persons and charge sheet was submitted against five persons and three sons of the deceased though specifically named in the F.I.R. were not charge sheeted. There is no mandate in law for the investigating officer to file charge sheet against all the F.I.R. named accused persons. After proper investigation, if the I.O. finds that there is no sufficient material against some of the accused persons relating to their involvement in the alleged incident, he is not bound to submit charge sheet against them merely because the informant named them as accused in the F.I.R. Even an informant can be charge sheeted as accused in the same case, if clinching materials come against him in course of investigation. If P.W.13, who was the informant in P.S. Case No. 269/1985 was not satisfied with the submission of charge sheet only against five persons, various options were available with him including filing of a complaint petition which he had not done. Therefore, it cannot be said that P.W.39 conducted perfunctory investigation.

199. It is correct that even though P.W.39 was directed to take up investigation of all the three cases, he took over charge of P.S. Case Nos. 269/1985 and 272/1985 only on 26.05.1985 but after taking over investigation, he filed final report in P.S. Case No. 272/1985 vide Ext.64 and charge sheet in P.S. Case No. 269/1985. There is no evidence that the conclusion arrived at by P.W.39 either in P.S. Case No. 269/1985 or P.S. Case No. 272/1985 were challenged either by the informant or any aggrieved persons in any Court. P.W.39 specifically stated that he has explained the reason for delay in taking over investigation of Purighat/Lalbag P.S. Case No. 273/1985 in the case diary of Purighat/Lalbag P.S. Case No. 272/1985. Therefore, there is nothing on record to show that P.W.39 deliberately delayed in taking over investigation of Purighat/Lalbag P.S. Case Nos. 269/1985 and 272/1985.

200. Thus the contentions raised by the learned counsel for the appellants relating to certain lacunas in the investigation are not acceptable.

G. Non-examination of independent witnesses and police staff regarding the occurrence inside Purighat police station:

201. It is contended by the learned counsel that materials on record indicate that one Gadadhar Swain and Aswini Kumar Mohapatra who were the outsiders were present at some point of time during the course of the occurrence in Purighat police station but they have not been examined. Similarly the jeep driver Sk. Firoj, Diary in-charge A.S.I. Prafulla Mishra, constables N.C. Samal, Prafulla Samanta, Sentry constables Gopabandhu Sadangi and Ananda Nayak as well as A.S.I. of Police C.S. Panda were present at some point of time in police station during the occurrence but they have not been examined.

202. Some of the official witnesses like P.W.8, P.W.9 present in Purighat police station at the relevant point of time were examined but they did not support the prosecution case. Some of the outsiders like P.W.12 and P.W.13 who also stated about the occurrence in their previous statements were examined but they also did not support the prosecution case. There was serious allegation against A.S.I. of police Prafulla Mishra that he entered certain incorrect facts in the station diary of Purighat police station to show genuineness of Purighat/Lalbag P.S. Case No. 272/1985.

203. Law is well settled that withholding of material witnesses who could have unfolded the genesis of the incident or essential part of the prosecution case would be a factor for the Court to draw adverse inference against the prosecution but where the overwhelming evidence is already available on record and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of other witnesses may not be material. It has come on record of the evidence of P.W.39 that during his investigation, he did not receive cooperation from the police staff of Purighat police station and Lalbag police station, though he has not mentioned about any obstruction to his investigation in the case diary. He has also stated that he had no personal hostility with the officers and staff of Purighat police station. In my humble view, it is not at all necessary to examine all the persons as pointed out by the learned counsel for the appellants. Section 134 of the Evidence Act provides that no particular number of witnesses is required for proof of any fact. It is not the number of the witnesses but the quality of evidence which is required to be taken note of by the Court for arriving at a conclusion whether the prosecution case is to be accepted or rejected. Though the selection of the witnesses to prove an essential part of the prosecution case should be fair but the defence cannot compel the prosecution to examine any particular witness. At best, the Court can draw adverse inference against the prosecution for withholding material witnesses. Therefore, I am of the view that non-examination of some witnesses as pointed out by the learned counsel for the appellants cannot be a factor to discard the prosecution case.

H. Non-examination of Executive Magistrate to prove inquest report (Ext.15):

204. According to the prosecution case, the Executive Magistrate N.K. Das prepared the inquest report (Ext.15) over the dead body on 05.05.1985 at 11.17 a.m. in the mortuary of S.C.B.M.C. Hospital, in which more number of injuries on the person of the deceased were reflected than the inquest report (Ext.16) prepared by appellant P.K. Choudhury on the same day in between 8.35 a.m. to 9.00 a.m.

205. Though the learned trial Court has observed that the appellant P.K. Choudhury had minimized the actual injuries sustained by the deceased but the Executive Magistrate who prepared the inquest report has not been examined during trial. The inquest report (Ext.15) was proved first by P.W.8 Brahmananda Behera and then by P.W.16 Biswanath Pandit, who is a witness to the inquest report and he stated about the arrival of the Executive Magistrate for conducting the inquest and preparing the report in the presence of Inspector of Police, Mangalabag police station as well as appellant P.K. Choudhury. He further stated that Ranendra Pratap Swain, Chittaranjan Mohanty and Krushna Chandra Patra were present at the time of inquest and they also signed in the inquest report. He further stated that inquest continued for about one and half hours and everything was noted by the Executive Magistrate and the inquest was held in their presence. P.W.39 also said that Ext.15 is the inquest report in respect of the dead body of the deceased prepared by the Executive Magistrate. He has denied the suggestion of the defence that he was not acquainted the handwriting and signature of N.K. Das and that the inquest report Ext.15 has been manufactured under the signature of so-called Executive Magistrate N.K. Das.

206. On comparison of the two inquest reports i.e. Ext.15 and Ext.16, it appears that Ext.15 has mentioned the injuries in a detailed manner and those injuries tallied with the post mortem report. Some of the injuries mentioned in Ext.15 as well as the post mortem report do not find place in Ext.16. It is mentioned in Ext.16 that swelling was noticed on palm of the right hand and one finger of the right hand and thumb of left hand and below the knee portion of both the legs, the injuries were also noticed. Comparing P.W.16 with the post mortem report, I am of the view that the learned trial Court rightly held that while preparing inquest report vide Ext.16, appellant P.K. Choudhury has minimized the injuries. In view of section 174 of Cr.P.C. and also column no. 5 of the inquest report which indicates that apparent injuries or marks on the body are to be noted down, the conduct of appellant P.K. Choudhury in not mentioning some of the injuries shows his malafide conduct in preparing the inquest report himself without taking the help any Executive Magistrate.

207. In view of the foregoing discussions, non-examination of the Executive Magistrate cannot a factor not to take into account the inquest report Ext.15 as an authentic document.

I. Whether T.I. Parade of appellant P.K. Choudhury was necessary:

208. It is contended by the learned counsel for the appellants that appellant P.K. Choudhury was a known person to P.W.1 and P.W.1 deposed against him in I.C.C. Case No. 28 of 1985 filed by P.W.34 Sukanta Nayak, the son of the deceased. Therefore, not naming the said appellant in the F.I.R. or in the previous statement of P.W.1 casts doubt about his participation in the occurrence. It is further contended that there was no need to conduct T.I. Parade.

209. It is not in dispute that in the first information report as well as in the 161 Cr.P.C. statement, P.W.1 has not named appellant P.K. Choudhury, however he stated that a person having moustache along with appellant Pravat Mohanty assaulted them. P.W.1 identified both the appellants in the dock and also named appellant P.K. Choudhury as ‘Choudhury Babu’. He stated that he did not know appellant Choudhury Babu prior to the incident and that he had identified him in a T.I. Parade after the incident. In the cross-examination, P.W.1 stated that he deposed in I.C.C. Case No. 28 of 1985 which was filed by P.W.34 and in that case, he was examined under section 202 Cr.P.C. two to three months prior to the date of occurrence. The deposition copy of P.W.1 in the said complaint case has not been proved. The certified copy of the order sheet in I.C.C. Case No. 28 of 1985 has been marked as Ext.41. The order dated 29.03.1986 is the order taking cognizance and issuance of process against the appellant P.K. Choudhury and one P.K. Jaisingh, S.I. of Police. The learned Magistrate has passed a detailed order where the evidence of the witnesses has been discussed. In 202 Cr.P.C. enquiry, the informant (P.W.1) was examined as P.W.2 but there is nothing to show that he named appellant P.K. Choudhury, though he stated that Police Babu assaulted the complainant with a lathi which broke and when the mother of the complainant came and protested, she was pushed and assaulted by another stick and that the complainant became senseless. Therefore, from the order sheet, it is not clear whether P.W.1 knew the name of appellant P.K. Choudhury. Even in Court, he only used the surname of the appellant P.K. Choudhury.

210. Therefore, merely because P.W.1 has not named appellant P.K. Choudhury in the F.I.R. as well as in the 161 Cr.P.C. statement but stated about the participation of one person having moustache and identified him in the test identification parade, it cannot be a factor to doubt that appellant P.K. Choudhury was not the person who was having moustache and present in the police station at the relevant point of time. In fact, appellant P.K. Choudhury himself admits about his presence in the police station when P.W.1 and the deceased arrived. Since in the prosecution evidence, it appears that there were other police officers in Purighat police station having moustache and the petitioner was not aware about the full name of the appellant P.K. Choudhury, therefore, it cannot be said that an illegality has been committed by P.W.39 in making a prayer before the Magistrate to hold test identification parade of appellant P.K. Choudhury. Moreover, no infirmity has been pointed out in the test identification parade conducted by P.W.24 Niranjan Das, the learned J.M.F.C., Cuttack who proved the T.I. parade report Ext. 24.

J. Whether post mortem report finding negatives ocular testimony of P.W.1:

211. It is contended by the learned counsel for the appellants that P.W.1 stated that after taking some tiffin in the house of the deceased, they proceeded to Purighat police station and P.W.7, the wife of the deceased stated that she gave raw tea and puri and halua to P.W.1 and the deceased as that was a lunar eclipse day and then they proceeded to the police station along with Havildar. It is further stated that after taking tiffin in his house, the deceased had not taken any other food prior to his death. Though the deceased was offered bread in Purighat police station but he did not take it. However, the doctor (P.W.37) conducting post mortem examination found undigested food i.e. rice and vegetables in the oropharynx and larynx and mouth also contained semi-digested food like rice, vegetables residue inside it. Similarly though P.W.1 stated that appellant P.K. Choudhury forcibly poured liquor in his mouth as well as in the mouth of the deceased but the query made to the doctor (P.W.37) has been answered in Ext.51 which indicates that no poison including alcohol was detected in the stomach and other viscera of the deceased. It is further contended that though P.W.1 stated that appellant P.K. Choudhury assaulted the deceased with a lathi from head to feet but no injury was noticed on the head of the deceased and therefore, the post mortem report negatives the evidence of P.W.1.

212. Though there is evidence that in the afternoon, taking puri, halua and raw tea, the deceased left his house for the police station but there is no evidence that prior to that he had not taken any rice or vegetables. Therefore, it cannot be ruled out that the deceased had not taken rice and vegetables at all on the date of occurrence. No question at all were asked to P.W.7, the wife of the deceased as to whether she had given the deceased rice and vegetables at all on the date of occurrence or not. The contention of the learned counsel for the appellants that the deceased came to police station after taking dinner and in the dinner he had taken rice and vegetables which were found from his stomach during post mortem examination is a hypothetical argument. Law is well settled that medical evidence is only an evidence of opinion and is hardly decisive. The doctor has not clarified as to what was the extent of undigested food in the stomach of the deceased. The process of digestion depends upon the digestive power of an individual and varies from an individual to an individual. It also depends upon the type and amount of food taken. The period of digestion is different for different types of food (Ref. : Maniram v. State of Rajasthan, 1993 Supp (3) SCC 18 : AIR 1993 SC 2453). In Taylor's Principles and Practice of Medical Jurisprudence (11 Ed.), it is observed that the rate of digestion varies in different persons and according to the functional efficiency of gastric mucosa; that the gastric process does not cease at once after death and can continue after death also. In Modi's Medical Jurisprudence (25 Edition), it is observed that the rate of emptying of stomach varies in a healthy person depending upon consistency of food, motility of stomach, osmotic pressure of stomach contents, quality of food in duodenum, surroundings where food was taken, emotional factors and residual variations and it varies from 2.5 to 6 hours. Meals containing carbohydrates generally leave the stomach early while that containing protein leaves later. Fatty food delays emptying time and liquids leave the stomach immediately.

213. Though an argument was advanced that since puri and halua were not found in the stomach of the deceased, it falsifies that the deceased took such food items, in my humble view, as there is no evidence about the quantity of such food items taken by the deceased while leaving his house and when it is the prosecution case that death of the deceased took place after midnight, therefore, the complete digestion of such food items cannot be ruled out.

214. Similarly though P.W.1 stated that appellant P.K. Choudhury poured liquor in the mouth of the deceased, there is no evidence that what were the quantity of such liquor and whether the deceased consumed the alcohol or not. Moreover, there is no evidence that what was poured into the mouth of the deceased was liquor inasmuch as no bottle of liquor was seized.

215. It is already discussed that so far as the assault on the head of the deceased with a lathi by appellant P.K. Choudhury appears to be an exaggerated version as it does not get corroboration from the post mortem report.

216. Therefore, the contention of the learned counsel for the appellants that the post mortem report findings completely negatives the evidence of P.W.1 is not acceptable.

K. Finding of blood stain on the floor of police station by Scientific Officer:

217. It is contended by the learned counsel for the appellants that when P.W.3, the sweeper of Purighat police station washed the floor of the police station in the morning as usual on the next day of occurrence, how the Scientific Officer (P.W.2) who visited the police station during the midnight on 05.05.1989 could notice bloodstain on the floor.

218. P.W.3 has not supported the prosecution case and he resiled from his previous statement made before the I.O. to the effect that he had seen vomiting substance and bloodstain inside the police station and washed it with water. The Scientific Officer (P.W.2) not only noticed bloodstain on different articles produced by the investigating officer and in Thana Jeep (which was not washed by P.W.3) but also collected bloodstain earth from the cemented floor of the rooms of the police station. The samples so collected by P.W.2 from the floor of the police station were marked as Exts. E, F and G and on chemical analysis, bloodstains were detected in it as per C.E. report Ext.60 and it was also found to be human blood though the blood group could not be detected.

219. It is common knowledge that if there is extensive bloodstain on the cemented floor which had remained for few hours, it cannot be cleanly removed by simply washing the floor with water. Application of detergent mixture and treatment with hydrogen peroxide can make clean removal of the bloodstain from the cemented floor. There is no evidence of P.W.3 applying detergent mixture or treating the floor by using hydrogen peroxide. Therefore, there is nothing to doubt about noticing bloodstain by the Scientific Officer on the cemented floor of the police station even after washing.

220. After carefully dealing with various contentions raised by the learned counsel for the respective parties, I am of the view that those part of evidence of P.W.1 which is consistent with his version in the first information report, his previous statement before the investigating officer and other surrounding circumstances and gets support from medical evidence can be safely acted upon after adopting the separation of grain from the chaff theory.

221. It has already been held that the defence plea relating to the assault on the deceased on Kathajori river embankment on 04.05.1985 at about 9.00 p.m. by some unknown persons is not acceptable. Similarly, it has already been held that the deceased had not sustained any injury on his person when he arrived at Purighat police station along with P.W.1 on 04.05.1985 at about 7.30 p.m. The ante mortem injuries noticed on the person of the deceased as per post mortem report were caused to the deceased in Purighat police station during his stay from 7.30 p.m. till past midnight on 04/05.05.1985 and the evidence of the Scientific Officer and chemical examination report also corroborate that the spot of assault was the police station and not any river embankment and the appellants were the authors of those injuries.

222. Now, the question comes for consideration is whether the conviction of the appellants under various offences as was held by the learned trial Court is sustainable.

Section 304 Part-II/34 of the Penal Code, 1860:

223. The charge was framed under section 304/34 of the Penal Code, 1860, however, the learned trial Court found both the appellants guilty under section 304 Part-II read with section 34 of the Penal Code, 1860.

224. The learned trial Court has observed that there was nexus between the death of the deceased and the act of the appellants in subjecting him to long detention throughout the night and in mercilessly beating him and that the appellants did it in furtherance of their common intention. It was further held that the facts of the case disclosed that there might not be an intention to cause such bodily injury as was likely to cause death but the facts disclosed that the appellants knew that their act would be likely to cause death.

225. The evidence of the doctor (P.W.37) who conducted autopsy indicate that the deceased had sustained eleven external injuries, out of which the injuries nos. 1 to 9 were opined to be ante mortem in nature. The opinion on injuries nos. 10 and 11 were kept reserved, however in Ext.51, the doctor opined that those two injuries were not ante mortem injuries and those could be due to post mortem hypostasis stimulating injuries which was evident from histopathological study. Except injury no. 5 which is a lacerated wound below the left knee in front without involving the bone, the other ante mortem injuries were either abrasions or bruises. The abrasions or bruises noticed were on lower part of right thigh, right leg below the right knee, medial aspect of right leg above the medial malleolus, left leg below the left knee, left buttock, left elbow joint on the posterior aspect, left thigh and on right hand from above the elbow to the dorsum of palm. Thus all the injuries except one on the right hand were below the waist line of the deceased.

226. The doctor found undigested and regurgitated vomitus (rice and vegetable residues) present in the oropharynx and larynx blocking the air passage. Trachea showed oedema of the walls and food particles inside it. Mouth contained semi digested food matters like rice, vegetable residues inside it. The doctor also noticed that the heart weight was 550 grams enlarged with deposit of fat over the heart. The left ventricle was thicken, bicuspid vulve admitted three fingers. Bicuspid and aortic vulves were thicken with nodules at its margin which was attached to the chordae tendineae. Heart chambers were found containing blood clots which were thicken fat appearance. The ascending aorta, carotid arteries, abdominal aorta showed atheromatous plaque which were marked at the junctions. There was obstruction of the left coronary artery. The muscle of left ventricle was contested and showed areas of hyperemia.

227. The doctor opined that all the injuries sustained by the deceased were simple in nature and not fatal in ordinary course of nature. According to him, death was proximately due to asphyxia resulting from chocking brought about by regurgitated stomach contents which aspirated into respiratory passage. The doctor found evidence of atherosclerotic changes in the aorta, vessels of neck and brain coronaries with blocking of left coronary artery. Hypertrophic enlargement of heart with dilatation of mitral vulvular opening and thickening mitral and aortic cusps was found. He noticed marked congestion associated with massive edema of both lungs and also massive cerebral edema with congestion of cerebral vessels. According to the doctor, these features could have contributed to the cause of death of the deceased. In his report Ext.51, the doctor opined that the immediate cause of death was asphyxia due to the obstruction of the windpipe by the regurgitated food materials, which is otherwise known as choking. He further opined that the deceased was having previous heart trouble owing to high blood pressure associated with obesity (fattiness). The signs observed at post mortem examination were suggestive of the fact that the ‘choking’ could have precipitated by the failing heart. He further opined that none of the injuries or all the injuries taken together could not have been directly fatal in ordinary course of nature. However, he opined that long detention associated with the injuries as mentioned in the post mortem report could have precipitated in failure of the already diseased heart resulting in death as a matter of consequence. The doctor opined in his report Ext.45 that anxiety, excitement, fear, emotional tension, physical and mental stress can precipitate the failure of the heart which was already diseased to the extent as described in the post mortem report. He further opined in that report that long detention associated with multiple injuries can induce physical and emotional stress.

228. In the cross-examination, the doctor has clarified that the weight of the heart of the deceased was abnormal and it was a diseased one and diseased heart can accelerate heart attack and sudden death. He further stated that all the external injuries were superficial in nature and the superficial external injuries by themselves are not fatal and cannot precipitate death. The doctor opined that injuries nos. 1 to 9 except injury no. 6 (which was a Grazed abrasion ½″ × ½″ on the left buttock) can be caused by M.O.IV and M.O. VII. Grazed abrasion is caused by relative movement or rubbing of skin against a rough surface.

229. In order to sustain conviction either under section 304 Part I or 304 Part II of the Penal Code, 1860, the prosecution is first required to prove it to be a case of culpable homicide and then such culpable homicide does not amount to murder. Culpable homicide is murder, if it comes within any of the four clauses as enumerated under section 300 of the Penal Code, 1860. Culpable homicide is not murder, if it comes within any of the five exceptions as enumerated under section 300 of the Penal Code, 1860. In order to be called a case as murder, it needs to be culpable homicide in the first place. All murders are culpable homicides, but the vice versa may not true in all cases. ‘Culpable homicide’ is defined under section 299 of the Penal Code, 1860. According to section 299, whoever causes death by doing an act (i) with the intention of causing death, or (ii) with the intention of causing such bodily injury as is likely to cause death, or (iii) with the knowledge that he is likely by such act to cause death, commits the offence of ‘culpable homicide’. The Explanation 1 to section 299 which is important in the case in hand states that a person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death. Illustration (b) given under section 300 of the Penal Code, 1860 after four clauses defining in which case culpable homicide is murder, is very important. It states, inter alia, that if A, not knowing that Z was labouring under any disease, gives him such a blow as would not in the ordinary course of nature kill a person in a sound state of health, here A, although he may intend to cause bodily injury, is not guilty of murder, if he did not intend to cause death, or such bodily injury as in the ordinary course of nature would cause death.

230. In the case of Sellappan v. State Of Tamil Nadu . reported in (2007) 15 SCC 327, it is held as follows:—

“13. Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the ‘intention to cause death’ is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by illustration (b) appended to Section 300.

12. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of Section 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given. In clause (3) of Section 300, instead of the words ‘likely to cause death’ occurring in the corresponding clause (b) of Section 299, the words ‘sufficient in the ordinary course of nature to cause death’ have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between clause (b) of Section 299 and clause (3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word ‘likely’ in clause (b) of Section 299 conveys the sense of probable as distinguished from a mere possibility. The words ‘bodily injury….sufficient in the ordinary course of nature to cause death’ mean that death will be the “most probable” result of the injury, having regard to the ordinary course of nature.”

231. While analysing section 304 of the Penal Code, 1860, the Hon'ble Supreme Court in the case of Mahadev Prasad.

232. Kaushik v. State of U.P. reported in (2008) 14 SCC 479 held as follows:—

“20….A plain reading of the above section makes it clear that it is in two parts. The first part of the section is generally referred to as Section 304 Part I, whereas the second part as Section 304 Part II. The first part applies where the accused causes bodily injury to the victim with intention to cause death; or with intention to cause such bodily injury as is likely to cause death. Part II, on the other hand, comes into play when death is caused by doing an act with knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death.

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22. Before section 304 can be invoked, the following ingredients must be satisfied:

(i) the death of the person must have been caused;

(ii) such death must have been caused by the act of the accused by causing bodily injury;

(iii) there must be an intention on the part of the accused

(a) to cause death; or

(b) to cause such bodily injury which is likely to cause death (Part I); or

(iv) there must be knowledge on the part of the accused that the bodily injury is such that it is likely to cause death (Part II).

233. In view of the evidence of P.W.1 and other surrounding circumstances and corroborating medical evidence, I am of the considered view that the prosecution has successfully proved that the appellants were responsible for causing the external ante mortem injuries as noticed on the deceased. In the case in hand, there is no evidence that the appellants had any knowledge that the deceased was labouring under any disease and that weight of his heart was abnormal and it was a diseased one and that he had serious lungs problem. The external injuries were superficial in nature and not fatal in ordinary course of nature. None of the injuries either individually or collectively were fatal in ordinary course of nature. All the injuries were on the non-vital parts of the body and those were mainly abrasions or bruises. The finding of the learned trial Court that it was a case of long detention of the deceased throughout the night is factually incorrect as the deceased was not detained throughout the night but taken to hospital past midnight. The detention was stated to be on account of his involvement in a case instituted at the instance of P.W.13 where he was shown to be arrested. The nature of injuries sustained by the deceased does not indicate it to be a case of merciless beating as observed by the learned trial Court. of course, the deceased could have been taken to the hospital earlier without waiting for his health condition getting worse.

234. In view of the aforesaid discussions, I am of the humble view that the conviction of the appellants under section 304 Part II/34 of the Penal Code, 1860 is not sustainable in the eye of law, which is accordingly set aside and instead the appellants are found guilty of offence under section 324/34 of the Penal Code, 1860.

Section 323/34 of the Penal Code, 1860:

235. The charge under section 323/34 of the Penal Code, 1860 was framed against the appellants for voluntarily causing hurt to P.W.1. As already discussed, P.W.1 exaggerated the number of blows given to him by lathi by appellant P.K. Choudhury but right from the F.I.R., P.W.1 has stated about two lathi blows given to him on his hand by the said appellant. Similarly P.W.1 exaggerated the number of kicks given to him by appellant Pravat Mohanty during his evidence in Court in comparison to his previous statement. The doctor (P.W.10) noticed one swelling on the left wrist joint and one abrasion on the left leg of P.W.1 and both the injuries have been opined to be simple in nature. These exaggerations in the number of lathi blows or kicks cannot be a factor to disbelieve the participation of the appellants in the assault of P.W.1.

236. Therefore, in my humble view, the learned trial Court rightly convicted the appellants under section 323/34 of the Indian Penal code.

Section 342/34 of the Penal Code, 1860:

237. The charge under section 342/34 of the Penal Code, 1860 was framed against the appellants for wrongfully confining the deceased and P.W.1 at Purighat police station. According to the prosecution case, the deceased and P.W.1 were not arrested in connection with Purighat/Lalbag P.S. Case No. 269/1985 but wrongfully detained. The learned trial Court held that the deceased and P.W.1 were not arrested and connected parts of case diary in Purighat/Lalbag P.S. Case No. 269/1985 were fabricated to falsely show that they were arrested. It is not in dispute that in the case diary of Purighat/Lalbag P.S. Case No. 269/85 dated 04.05.1985, appellant P.K. Choudhury (who was the I.O. of that case) has reflected about arrest of the deceased and P.W.1. The said entry was proved by P.W.38 and it is marked as Ext.52. The learned trial Court doubted the participation of the deceased and P.W.1 in the said case as their names were not reflected in the F.I.R. of the said case by P.W.13, who was the informant of that case.

238. In my view, since the learned trial Court was not trying Purighat/Lalbag P.S. Case No. 269/1985, therefore, such observation was not justified. A person can be made as an accused and arrested in connection with a case, even if his name does not finds place in the F.I.R. but during course of investigation, materials come against him. Since Para Dei (P.W.15) examined during investigation of the said case and stated to have implicated the deceased and P.W.1 in her statement recorded in that case by appellant P.K. Choudhury, stated during her evidence in the case in hand not to have given any statement in connection with Purighat/Lalbag P.S. Case no. 269/1985, the learned trial Court observed that such a statement is shown to have falsely recorded. I have already held that the finding of the learned trial Court that P.W.15 falsifies her alleged statement in the case diary of Purighat/Lalbag P.S. Case No. 269/1985 is not acceptable. A witness may resile from his previous statement during trial of the case and may say that he was not examined by police, in the event of which the prosecution can take step in consonance with 154 of the Evidence Act and the evidenciary value of such statement is to adjudicated in accordance with law. The learned trial Court held that appellant P.K. Choudhury should have allowed the deceased to go on bail or P.R. bond in that case. There is no justification for such observation. One of the offences in Purighat/Lalbag P.S. Case No. 269/1985 was under section 452 of the Penal Code, 1860 which carries maximum punishment upto seven years and also imposition of fine and it is a non-bailable offence. Whether appellant P.K. Choudhury exercised his discretion improperly in not releasing the deceased on bail in Purighat/Lalbag P.S. Case No. 269/1985 after his arrest was definitely not the subject matter of adjudication before the learned trial Court. Merely because the time and place of arrest of the deceased and P.W.1 was not shown in Ext.52, is not a ground to disbelieve their arrest. The appellant in the accused statement has stated that such omission in Ext.52 in not reflecting the time and place of arrest might be a mistake. I am of the humble view that on 04.05.1985 the deceased and P.W.1 were arrested by appellant P.K. Choudhury in connection with Purighat/Lalbag P.S. Case No. 269/1985 in Purighat police station and both of them were detained there and as such it cannot be said to be a case of wrongful confinement of the deceased and P.W.1 at Purighat police station without their arrest.

239. Therefore, the conviction of the appellants under section 342/34 of the Penal Code, 1860 is hereby set aside.

Section 471/34 of the Penal Code, 1860:

240. The charge under section 471/34 of the Penal Code, 1860 was framed against the appellants for fraudulently or dishonestly using the document purporting to be first information report registered as Purighat/Lalbag P.S. Case No. 272/1985 and seizure lists which they knew or had reason to believe as forged documents.

241. While discussing this charge in para 78 of the judgment, the learned trial Court held that C.D. in Purighat/Lalbag P.S. Case No. 269/1985 was fabricated so far as it related to the alleged arrest of the deceased and P.W.1 and that the appellant P.K. Choudhury, the I.O. of that case committed forgery and appellant Pravat Mohanty is also responsible for it. This observation is contrary to the charge framed for this offence which was specific relating to Purighat/Lalbag P.S. Case No. 272/1985 and therefore, the learned trial Court was not justified in considering the case records of Purighat/Lalbag P.S. Case No. 269/1985 in connection with this charge.

242. It was further held by the learned trial Court that the so-called F.I.R., seizure lists and the connected case diaries including examination of witnesses, inquest etc. in Purighat/Lalbag P.S. Case No. 272/1985 were also forged and that the appellants used such forged documents as genuine documents, though to their knowledge the same were forged and that they did so in furtherance of their common intention to falsely explain wrongful detention of the deceased and P.W.1 and to explain the injuries in their bodies. The finding on the basis of considering the case diaries including examination of witnesses, inquest etc. in Purighat/Lalbag P.S. Case No. 272/1985 was not justified as the charge was specific relating to the first information report and seizure lists.

243. The essential ingredients of offence under section 471 of the Penal Code, 1860 are : (i) fraudulent or dishonest use of document as genuine, and (ii) knowledge or reasonable belief on the part of person using the document that it is a forged one. Thus if a document although not genuine, and a person knowing it not to be genuine or having reasons to believe that it is not a genuine but a forged document, uses it and that also fraudulently or dishonestly then it comes within the mischief of section 471 of the Penal Code, 1860. ‘Fraudulently’ as per section 25 of the Penal Code, 1860 means to do a thing with intent to defraud but not otherwise. It is not necessary that the ‘use’ should be in a particular manner. If it is known to be not a genuine document and it is used, it is sufficient. It is fairly settled that the meaning of the term “use” mentioned in the section is not restricted to the filling of such documents as evidence in a Court. It is sufficient that it is used in order that it may ultimately appear in evidence or used dishonestly or fraudulently. The nature of user is not material. Whether the accused knew or had reason to believe the document in question to be a forged has to be adjudicated on the basis of materials and the finding recorded in that regard is essentially factual.

244. I have already held the appellants prepared a false first information report which carries the forged signature of the deceased vide Ext.A and used it as genuine one by registering as Purighat/Lalbag P.S. Case No. 272/1985 on 04.05.1985 at 10 p.m. Appellant Pravat Mohanty registered it and as per his direction, appellant P.K. Choudhury shown to have investigated the case. I have also held that there are some irregular features in the preparation of seizure list Ext.23/3 and the contents of seizure list Ext.42 are false.

245. Therefore, in my humble view, the learned trial Court rightly convicted the appellants under section 471/34 of the Penal Code, 1860.

246. In the result, the impugned judgment and order of conviction of both the appellants for the offences under sections 304 Part-II/34 and 342/34 of the Indian Penal code are hereby set aside, however their conviction under sections 323/34 and 471/34 of the Penal Code, 1860 are upheld. Both the appellants are also convicted under section 324/34 of the Penal Code, 1860.

247. Now, it is to be carefully examined taking into consideration the facts and circumstances of the case as to what sentence is required to be imposed upon the appellants. One of the prime objectives of criminal law is the imposition of adequate, just, proportionate punishment which is commensurate with the gravity and nature of the crime and manner in which the offence is committed. The quantum of sentence imposed should not shock the common man. It should reflect the public abhorrence of the crime. The Court has a duty to protect and promote public interest and build up public confidence in efficacy of rule of law.

248. The appellant Pravat Mohanty is now aged about 76 years and appellant P.K. Choudhury is now aged about 75 years. The occurrence in question took place thirty five years back and the appellants must have suffered immense mental agony and pain facing criminal proceeding for a considerable period. Keeping all the aforesaid factors in view, I sentence both the appellants to undergo simple imprisonment for one month for the offence under section 323/34 of the Penal Code, 1860 and simple imprisonment for three months for the offence under section 471/34 of the Penal Code, 1860. Both the appellants are also sentenced to simple imprisonment for one year for the offence under section 324/34 of the Penal Code, 1860. All the substantive sentences shall run concurrently. The appellants are on bail. Their bail bonds shall stand cancelled and they are directed to surrender before the learned trial Court within two weeks from today for undergoing the remaining period of sentence.

249. Custodial violence on a person which may sometimes lead to his death is abhorrent and not acceptable in a civilised society and it is a crime against humanity and a clear violation of a person's rights under Article 21 of the Constitution of India. Police excesses and maltreatment of detainees, under trial prisoners or suspects tarnishes the image of any civilised nation. Stern measures are required to be taken to check the malady against those police officials who consider themselves to be above the law and bring disrepute to their department, otherwise the foundations of the criminal justice delivery system would be shaken and common man may lose faith in the judiciary. Act of custodial violence reflects tragic state of affairs indicating the apparent disdain of the State to the life and liberty of individuals, particularly those in custody and relief could be moulded by granting compensation to the next of kin of the deceased. The Hon'ble Supreme Court, in the case of Nilabati Behera (Smt.) @ Lalita Behera v. State of Orissa reported in (1993) 2 SCC 746 proceeded to take view that even convicts, prisoners and undertrials cannot be denuded of their fundamental rights under Article 21 of the Constitution of India and once an incumbent is taken into custody and there are injuries on his body, then State will have to explain, as to how he sustained the injuries, and compensation can be awarded under public law remedy.

250. Keeping in mind the age and earning capability of the deceased as he was serving as Jamadar in Cuttack Municipality, I am of the considered opinion that in the ends of justice, it would be just and proper to grant compensation, amounting to Rs. 3,00,000/- (rupees three lakhs) in favour of the legal representative(s) of the deceased. Accordingly, I direct the State Government to pay Rs. 3,00,000/- (rupees three lakhs) in favour of the legal representative(s) of the deceased within a period of one month from the date of this judgment.

251. Accordingly, the criminal appeals are partly allowed. Lower Court records with a copy of this judgment be sent down to the learned trial Court forthwith for information.

252. Before parting with this case, I would like to record my deep appreciation for the valuable assistance rendered by the learned counsel for the appellants and learned counsel for the State in taking up the hearing of these thirty two year old criminal appeals adopting the mode of virtual hearing.

Pravat Chandra Mohanty v. State Of Orissa .

Bench: S.K. Sahoo, J. — CRA Nos. 207 & 210 of 1988

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant P.K. Choudhury (Mr. Devashis Panda)

Appellant Pravat Mohanty (Mr. Yasobant Das, Sr. Adv.)

State (Mr. Lalatendu Samantaray, Addl. Govt. Advocate)

Table of Precedents Cited

Court's Reasoning and Analysis

1. Evidence of attendance at Purighat police station and calling by Havildar (whether P.W.8 was sent)

2. Timing: when the deceased and P.W.1 left the Basti and arrived at the police station

3. Reliability of P.W.1 (solitary eyewitness)

4. Corroboration: scientific evidence, post-mortem and seized material

5. Defence's embankment-assault story and the separate FIR (Purighat/Lalbag P.S. Case No. 272/1985)

6. Fabrication/forgery and section 471

7. Whether evidence sustains Section 304 Part-II conviction

8. Convictions the Court sustained or substituted

9. On section 342 (wrongful confinement)

10. Investigation lacunae and non-examination of witnesses

Holding and Implications

Disposition / Orders (as recorded)

Pravat Chandra Mohanty v. State Of Orissa .

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