KASHINATH PATRO AND ANR. Vs. STATE

JUDGEMENT

(1.) THIS is an appeal from the judgment of the Sessions Judge of Berhampur convicting Appellants Bhagaban Padhan, Nityananda Padhan and Jagannath Padhan under Sections 302/34 of the Indian Penal Code and sentencing them to transportation for life and convicting Appellants Kasinath Patra and Puroshottam Padhan under Sections 117 and 323 of the Indian Penal Code and sentencing them to one year rigorous imprisonment each.

(2.) IN village Thulunda, P.S. Buguda in the district of Ganjam there are two parties hostile to each other. Appellant Bhagaban Padhan is the leader of one of the factions and his agnatic cousin Durjodhan Padhan (P.W. 14) is the leader of the rival faction. It is unnecessary for the purpose of this appeal to describe in detail the origin of the dispute between the two factions and the various cases that were fought out between them. At about sun -set on the 1st of February, 1955 several persons of both factions came to blows in the village street in consequence of which five persons on the side of the prosecution and five persons on the side of the accused persons were injured. The prosecution witnesses who were injured are P.W. 1 Khadala Patra, P.W. 3 Pandab Padhan P.W. 4, Uday Patra, P.W. 8, Antarjami Padhan and P.W. 11, Bhagirathi Naiko.

(3.) IT is obvious that both parties have carefully suppressed a material portion of the occurrence and tried to show that they were Innocent victims of a murderous attack from the opposite side. Both the F.I.Rs. are discretely silent as to who started the fight. The injuries sustained by the rival faction are also completely omitted. On the other hand the medical evidence leaves no room for doubt that both parties exchanged murderous blows with blunt weapons in consequence of which five persons on the side of the prosecution and five persons on the side of the Appellants sustained fairly severe injuries including head injuries and one Choudhuri Rout was also killed. Though the Appellants party are also guilty of suppressing a material portion of the occurrence the prosecution cannot rely on this unsatisfactory feature in the counter F.I.R. but, has to prove its own case beyond reasonable doubt. The very fact that the injuries sustained by the accused's party are completely omitted in the F.I.R. of Khadala patra (P.W. 1) and the origin of the quarrel is also not given out leads to a reasonable suspicion that the prosecution witnesses are anxious to conceal a material part of the occurrence lest it should damage their case. Hence, the evidence of the eye -witnesses has to be scrutinised with great care, especially when admittedly almost all the eye -witnesses belong to the informant 's party and are bitter enemies of the accused persons. Moreover, three of the eye -witnesses, namely, Khadala Patra (P.W. 1), Pandab Padhan (P.W. 3) and Durjodhan Padhan (P. W. 14), are accused persons in the counter case and they are vitally interested in suppressing those portions of the occurrence which would not only damage the present case but also incriminate them in the counter case.