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Chintamani Das and ors. Vs. the State - Court Judgment

LegalCrystal Citation
CourtOrissa High Court
Decided On
Case NumberCriminal Appeal No. 96 of 1967
Reported inAIR1970Ori100; 1970CriLJ906
ActsEvidence Act, 1872 - Sections 5, 17, 18, 30 and 33; Indian Penal Code (IPC) - Sections 120B, 149 and 302; Code of Criminal Procedure (CrPC) - Sections 164
AppellantChintamani Das and ors.
RespondentThe State
Appellant AdvocateH. Kanungo and ;R.N. Mohanty, Advs.
Respondent AdvocateU.K. Nanda, Adv. for Govt. Adv.
Cases ReferredSarju Singh v. Emperor
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....patra, j.1. the five appellants along with three others who have been acquitted were placed on trial before the sessions judge, balasore on charges under sections 302/149 and 120b, i. p. c. on the allegation that they conspired to murder one ramchandra choudhury and that in pursuance of the said conspiracy they on the 24th november, 1965 formed an unlawful assembly with the common object of committing the aforesaid murder and did in furtherance of the common object commit murder. eight other persons were also charged for conspiracy but they were also acquitted. of the 16 accused thus placed on trial, the five appellants alone were found guilty on both the charges and convicted and sentenced to imprisonment for life under section 302/149, i. p. c. no further sentence was imposed on them.....

Patra, J.

1. The five appellants along with three others who have been acquitted were placed on trial before the Sessions Judge, Balasore on charges under Sections 302/149 and 120B, I. P. C. on the allegation that they conspired to murder one Ramchandra Choudhury and that in pursuance of the said conspiracy they on the 24th November, 1965 formed an unlawful assembly with the common object of committing the aforesaid murder and did in furtherance of the common object commit murder. Eight other persons were also charged for conspiracy but they were also acquitted. Of the 16 accused thus placed on trial, the five appellants alone were found guilty on both the charges and convicted and sentenced to imprisonment for life under Section 302/149, I. P. C. No further sentence was imposed on them for their conviction under Section 120B, I. P. C.

2. The deceased Ramchandra Choudhury was practising as an Advocate at Nilgiri but was residing in his ancestral house in mouza Narayanpur which is at a distance of about 12 miles from Nilgiri. He used to come daily on his bicycle from his village to attend the Court at Nilgiri and return home in the evening. The appellants are all inter-related, and there is evidence to show that their relationship with the deceased was far from cordial. Many incidents have been proved to show that misunderstandings had existed between the deceased and some or all of the accused persons. Some of the appellants cultivated lands under him and it is stated that the deceased used to harass them in many waya The last of such disputes was a proceeding under Section 145, Criminal P. C. initiated by the Police at the instance of the deceased on 21-11-1965 against the appellant No. 5 Nityananda Bagh. It is against this background that the occurrence in this case took place.

3. The prosecution case !s that on 24-11-65, the deceased left his house at about 10 A. M. on a cycle (M. O. XII) for Nilgiri. The road from his village to Nilgiri passes through a jungle called Bhalukasuni jungle. When the deceased Ramchandra reached that point of the road, appellant No. 1 Chintamani, Goutam (A/2) and Nityananda (A/5) suddenly appeared on the road. Nityananda assaulted the deceased on his head with a bamboo lathi and Goutam pushed his cycle to one side of the road as a result of which the deceased fell down on the ground. Thereafter Bhikari Bhuyan (A/3), Sanatan Bhuyan (A/4) and three others, namely, Kangali Bhuyan, Banshi-dhar Bhuyan and Narayan Bhuyan, since acquitted dragged the deceased into the said jungle and threw him in a Nala where appellant Goutam Bhuyan, Bhikari Bhuyan, Nityananda Bag and Bansidhar Bhuyan crushed the head of the deceased with boulders resulting in his instantaneous death. P. W. 13 Narendra Nayak who shortly afterwards was coming from Naranpur towards Balasore found the cycle (M. O. XII), hat (M. O. XIV) and handkerchief (M. O. XIII) belonging to the deceased lying by the side of Naranpur--Bhalukasuni road. He informed about it to P. W. 7 Pratap Chandra Behera and Pratap accompanied by Kailas Chandra Panda went to the spot and having found the said articles went to Nilgiri and reported about the missing of the deceased at the P. S. On the basis of this information a Station Disry entry was made by the Police. P. W. 6 Surendranath Behera, who is the brother-in-law of the deceased on coming to know that the cycle, hat etc., of the deceased were found lying on the road went to the spot and discovered the dead body inside the Nala, and lodged F. I. R. (Ext. 2) at the Police Station at about noon that day. The police proceeded to the spot, held the inquest, sent the dead body for post-mortem examination and seized the cycle, hat and the handkerchief and also three pairs of slippers (M. Os. III, IV and V) which were lying on the road at the spot. In the course of investigation, the houses of some of the accused persons were searched and certain articles which were found to be blood stained were seized. Appellant No. 1 Chintamani Das was arrested on 5-12-1965 and while in custody he made a statement to the Police in consequence of which a black shirt (M. O. XVII) and a knife (M. O. XXII) were recovered from his house. On 7-12-65, his confessional statement was recorded by the S. D. M., Nilgiri. P. W. 12, the Medical Officer in charge of Nilgiri hospital held the post-mortem examination on the dead body of Ramchandra Chowdhury at 9.30 A. M. on 25-11-65 and found as many as 12 external injuries on his person, of which injuries nos. 6 to 12 mentioned below were in the region of the head.

'(6) One ante-mortem lacerated wound 5' X 3' breadth cranial cavity found over vault of skull. The brain matter was found protruding out.

(7) One lacerated ante-mortem wound 3 1/2' X 3' cranial cavity was found over left frontal region.

(8) One ante-mortem lacerated wound 1.1/2'x1' over bridge of nose.

(9) One ante-mortem lacerated wound 2'x1' cranial cavity was found extending from outer angle of left eye. The eye-ball was seen pushed inwards into cranial cavity.

(10) One ante-mortem lacerated wound 2.1/2' x 2' cranial cavity was seen over outer side of left fronto-temporal region.

(11) One ante-mortem wound 2.1/2'x 2'x scalp deep was found over right parietal temporal region.

(12) One ante-mortem lacerated wound l'x1/2 skin deep was found over left side of chin'.

On dissection, he found the following:

(1) One communited fracture in occipital bone. A piece of bone length 1.1/2'x 1' was seen pushed inwards pressing the brain matter.

(2) Longitudinal fracture was seen on left parietal bone antero-posterially extending from the injury No. 1.

(3) The communited fracture was seen In frontal bone and the bone was found crushed into pieces.

(4) Communited fracture was seen in left temporal left zygomatic and nasal bones and the bones were found broken into pieces.

(5) The left maxillary bone was found fractured into two halves. The central incissor tooth found broken and dislocated.

(6) Fracture of mandible was seen in body of left side and the bone was found into two halves.

(7) The meninges and the brain matter extensively lacerated and the contour lost and half of its portion was found absent

(8) Extensive dark clotted blood under the skin and subcutaneous tissues under the injuries Nos. 6, 7, 8. 9, 10 and 11'.

In his opinion, the external injuries Nos. 6 to 12 with their corresponding internal injuries could have been possibly caused by boulders, although in cross-examination it was elicited from him that these external injuries Nos. 6 to 12 could also be caused by heavy, blunt and hard lathis and iron rods. He stated that internal injuries 3 and 4 especially were more likely to have been caused by boulders. On the requisition of the Police, the doctor (P. W. 12) also took nail scrapings of appellant Goutam Bhuyan which on examination by the Serologist were found to contain blood.

4. After completion of the investigation, the accused persons were put on trial. All the accused persons pleaded not guilty and denied their complicity in the alleged conspiracy and the murder of the deceased. The learned Sessions Judge after a careful examination of the evidence on record found the five appellants guilty, lelying mainly on (1) Ext. 31, the deposition of Panchu Majhi, who was examined in the Court of the Magistrate but died before he could be examined in the Court of Session; (2) the confessional statement of appellant Chintamani Das which the learned Judge treated not as a confession but as an admission; (3) motive for the alleged crime; and (4) certain circumstantial evidence.

5. That the deceased Ramchandra Choudhury was brutally murdered on 24-11-65 while he was on his way to Nilgiri does not admit of any dispute and has been satisfactorily established, and that he died as a result of shock, haemorrhage and coma on account of the head injuries that he had received. The only question is whether the appellants had taken part in the commission of the murder. There are two eye-witnesses--Burundu Nayak (P. W. 18) and Panchu Majhi. Panchu Majhi was examined in the Court of the committing Magistrate and this is what he had deposed:

'I know deceased Ham Chandra Choudhury. He died in the month of last Margasir. On that day when he died at about 9 A. M. in the morning I had been to Tinkosia jungle to collect herbs. While I was coming on the road after collecting 'some tooth sticks I heard a sound 'Ho' from the direction of the village Sardiha. At that time deceased Rambaboo was coming on the road from that side. Village Naranpur also lies in that side. He was coming on a cycle. While he was coming suddenly three persons appeared on the road from the eastern side. They were accused Nitya Bag, one man wearing black dress, and accused Gautam Bhuyan (identified accused Nitya Bag and accused Goutam Bhuyan and Chintamani Das saying that Chintamani Das was his man wearing black dress in dock). Accused Nityananda Bag dealt a lathi blow on the head of Ram Baboo. Accused Goutam Bhuyan caught hold of the back side of the cycle of Ram Baboo and pushed to one side of the road. Ram Baboo fell down on the ground. Deceased Ram Baboo removed his shoe from his right leg and with it assaulted to the head of accused Nitya Bag. Except the above three accused persons, five others also came and were on the left side of the road. Those five were accused Bans! Bhuyan, Naran Bhuyan, Bhikari Bhuyan, Kangali Bhuyan and Sanatan Bhuyan (identifies accused persons Bansi, Narayan and Sanatan in dock and also identifies accused Kangali as Bhikari and Bhikari as Kangali in the dock). These five persons dragged Rambaboo down the road to a nala and threw him. Accused persons Goutam Bhuyan, Bansi, Nityananda Bag and Bhikari crushed the head of Ram Baboo with stone boulders (patharare Chhechi Munda Chepa Kari-dele). First of all Ram Baboo was crying 'Rakshya Kara, Rakshya Kara' and was groaning 'Gan, Gan' before his death. Ram Baboo died at the spot. After Rambaboo died, accused Nitya Bag ran towards Bhalukasuni, Narayan Bhuyan and the accused wearing black dress ran towards Naranpur. These three accused persons fled away with cycle. Rest of the accused persons present there having no cycle ran towards jungles. I ran also to my house. Out of eight accused persons, two had lathis. When the first lathi blow was dealt by accused Nityananda Bag on the head of the deceased, his hat fell down being struck by lathi.

(Cross-examination on behalf of all the accused persons declined).

Before he was examined in the Sessions Court he died and under Section 33 of the Evidence Act his deposition was admitted in evidence and is marked Ext. 31. His evidence, if accepted, implicates not only all the five appellants in the murder, but also three other persons who have been acquitted.

6. Mr. K. Kanungo appearing for the appellants contends that although in view of Panchu's death his previous deposition is admissible in evidence, it should not be acted upon without due corroboration in material particulars. According to him, this should be so because the witness had not been cross-examined. One of the requirements for application of Section 33 of the Evidence Act is that the adverse party in a proceeding should have the right and opportunity to cross-examine. It does not say that the opportunity should have been availed of or the right should have been exercised. If opportunity for cross-examination was offered, but the party did not avail himself of the right and opportunity, the deposition would be clearly admissible. Once the evidence is admissible what weight should be attached to that evidence is a different matter and must necessarily depend upon other facts and circumstances of the case. To say that the evidence of such a witness, who was not cross-examined in spite of the right and opportunity being there, should not be accepted without due corroboration, is to import into Section 33 a limitation which is not there. In support of his contention, Mr. Kanungo relies upon a decision of the Patna High Court in AIR 1936 Pat 34, (Mt. Horil Kuer v. Rajab Ali). Rowland, J. who decided the case quoted with approval a dictum of Kumaraswami Sastri. J. in ILR 48 Mad 1 = (AIR 1925 Mad 497), Maharaja of Kolhapur v. Sundaram Ayyar. The question that was raised in the Madras case was as to the admissibility of the deposition of a witness who was ill when she was examined in chief and her examination was closed after a few sentences in cross-examination were recorded and she died before the cross-examination could be resumed. Referring to that evidence, Kumaraswami Sastri, J. observed:

'I do not think that the evidence can be rejected as inadmissible though it is clear that evidence untested by cross-examination on a question like present can have no value. I think the correct rule is that the evidence is admissible but that the weight to be attached to such evidence should depend on the circumstances of each case and that though in some cases the Court may act upon it, if there is other evidence on record, its probative value may be very small and may even be disregarded'.

While observing that the law on the subject has been correctly stated in the above passage, Rowland, J. was careful to add what he understood the observations to mean --

'I do not understand the observations of the learned Judge to mean that there is any hard and fast rule that the probative' value of such evidence is small, and in my view there is no such rule. The weight to be attached to the evidence depends on the circumstances and the Court should look at the evidence carefully to see whether there are indications that by a completed cross-examination the testimony of the witness was likely to be seriously shaken or his good faith to be successfully impeached'.

The question for consideration in the Patna case was regarding the evidence of one Jailal Pandey who being too ill to come to Court was examined on commission. He was examined in chief and cross-examined in part. The cross-examination was adjourned and the witness died before the cross-examination could be resumed. Nonetheless, it was relying on the evidence of this witness that the case was decided. Reliance is also placed on Sarju Singh v. Emperor, AIR 1925 Oudh 726, where the learned Additional Judicial Commissioner referring to the evidence of one Chodi who was examined in the committing Magistrate's Court and was not cross-examined but who died before he was examined in the Court of Session stated that in the absence of cross-examination the evidence is of little or no value. The learned Judge however, did not elaborate this point and gave no reasons in support of his conclusion. As against this we have a Bench decision of the Madras High Court in Re: Bora Narasimhulu, AIR 1952 Mad 165. In that case the only eye-witness was a young boy who was the son of the deceased and had seen the occurrence in which both his parents were murdered. He was examined at the time of the preliminary enquiry but subsequently he could not be traced in spite of the diligent searches made by the police authorities. After being satisfied that he was not traceable, his evidence was admitted under Section 33 of the Evidence Act but it was assailed on the ground that he was not cross-examined effectively. The learned Judges did not accept this plea and acted on the evidence of the boy saying that what is contemplated under Section 33 is an opportunity to cross-examine and not an effective use of it. With great respect we are in complete agreement with this view.

7. We should therefore consider the evidence of Panchu Majhi in the same manner as it would have been considered had he given evidence before the Sessions Judge. It may be that after such examination, we may not accept it but that would not be on the ground that he was not cross-examined in the committing Magistrate's Court. Now the question is whether there is anything inherently improbable in the story given by Panchu Majhi or whether it suffers from any other defect which warrants its rejection. There is nothing to show that he had any motive to depose against the appellants. As a matter of fact, he belongs to a village different from the one to which the appellants belong. Excepting appellant Nityananda Bag and Goutam he did not even know the other culprits by name and only identified them in Court out of the 16 persons who were present in the dock. He described appellant Chintamani Das as a man wearing a black dress and Chintamani Das after his arrest made a statement in consequence of which a black shirt M. O. XVII was recovered from his possession. It is next argued that the fact that Panchu Majhi did not disclose about what he had seen till he was examined by the Police on 29-11-65, is a circumstance which throws considerable doubt on the veracity of his testimony. Panchu Majhi is an Adibasi by caste and there is nothing unusual, having regard to the habits of such people, in their conduct in not disclosing the occurrence until questioned by the Police. There is a natural tendency on the part of such people not to get mixed up in such matters. A part of his testimony regarding the presence of appellant Chintamani Das at the place of occurrence receives corroboration from the latter's statement recorded by the Magistrate under Section 164 Cr. P. C. It was next argued that his evidence in some particulars differs from the statement made by Chintamani before the Magistrate. Chintamani's statement before the Magistrate being exculpatory in nature was rightly held by the Sessions Judge as not amounting to a confession; but it was treated only as an admission of Chintamani Das about his presence at the spot. What Chintamani stated against the other accused persons cannot therefore be used as evidence against them. That being the position, we cannot compare certain statements made by Chintamani against the other accused persons with Panchu's statement regarding those accused persons and point out infirmities in the latter's testimony. We may at the same time make it clear that even if such comparison is permissible in law, still the little difference that is there is not in any material particulars sufficient to discredit Panchu's testimony. We are therefore, satisfied that Panchu's evidence is not only admissible in evidence but is also acceptable.

8. The other eye-witness to the occurrence is P. W. 18 Burundi Nayak aged about 52 years. He is a resident of Mouza Matiali. He stated that on the date of occurrence he was going to the house of his father-in-law Jagu Biswal (P. W. 32) situate in Mouza Kusumia, One going from Matiali to Kusumia has to pass along the Naranpur-Bhaluka-suni road. He stated that while he was proceeding on the road, the deceased Ramchandra Choudhury came on a cycle from behind him and went ahead of him. As there was a curve ahead on the road, he could not thereafter see the deceased. But shortly afterwards he heard a groaning sound and found the cycle of the deceased and his hat lying on the road at a distance of about 200 feet. He then saw that seven persons had caught hold of the deceased and were dragging him towards the jungle and another person holding a lathi was following them. Out of fear, he ran towards the jungle situated on the other side of the road and proceeded to village Kusumia and narrated what he saw to his father-in-law. His evidence receives some corroboration from that of his father-in-law (P. W. 32) who says that on reaching the house, his son-in-law Burundi informed him that while he was coming on the Naranpur-Bhalukasuni road, he saw eight persons dragging Ramchandra towards the jungle. P. W. 18 stated in Court that out of the eight persons he saw, he knew by name only appellant Nityananda Bag and one Narayan Bhuyan who was acquitted, and that he could identify the rest whose names he did not know. But standing in the witness box he was however unable to identify any of those accused persons who were standing in the dock at a distance of 12 feet from the witness box. He had to go near them and identified some of the accused persons. He admitted in Court that his eye sight was weak since about 2 years. The learned Judge therefore, thought, and in our opinion rightly, that it could not have been possible for this witness to identify the accused persons on the date of occurrence from a distance and therefore, rejected his testimony. Nothing however has been elicited from him in cross-examination to show that he has got any motive to depose against the accused. It may be that having seen the occurrence he thereafter drew heavily on his examination regarding the identification of the accused persons, but we see no reason why we should disbelieve his testimony, that he saw the deceased being dragged by eight persons towards the jungle. To that extent it corroborates the testimony given by Panchu and is corroborated by Panchu's evidence. That immediately after the incident he mentioned about it to his father-in-law lends further assurance to his testimony that eight persons had taken part in the occurrence.

9. We now take up the evidence available against each of the appellants.

(a) Appellant No. 1 -- Chintamani Das: The evidence of Panchu Majhi shows that this appellant who was wearing a black shirt came to the scene of occurrence along with Nityananda Bag and Goutam Bhuyan and was all along present at the spot till the deceased was killed. A black shirt (M. O. XVII) was recovered from his possession and in his examination under Section 342, Cr. P. C. he admits it to be his. In a statement recorded by the Magistrate under Section 164, Cr. P. C. on 7-12-1965 (Ext. 10) he admits his presence at the place of occurrence where the deceased was killed. The statement made by this accused before the Magistrate was however retracted in the Sessions Court where he stated that he was severely assaulted by the Police and was coerced to make the statement. He also alleged that he was detained in the Thana for 5 days and pressure was put on him to make the statement. This was denied by the Investigating Officer P. W. 35. The I. O. however admitted in cross-examination that Chintamani Das was brought to the Police Station on 1-12-1965 and 2-12-1965 and that he was arrested on the 5th. Even if it is assumed that he was being interrogated from 1st to 5th it would not follow therefrom that the statement made by him before the Magistrate subsequently was involuntary. The Magistrate who recorded his deposition has deposed that he gave Chintamani sufficient caution and time for reflection and was satisfied that the statement made by him was voluntary. We are, therefore, satisfied that the conclusion of the learned Sessions Judge that the statement made by Chintamani before the Magistrate was voluntary is correct. We are therefore, satisfied that Chintamani along with his associates had taken part in the murder of the deceased.

(b) Appellant No. 2 -- Goutam Bhuyan: Panchu Majhi has implicated him as one of the three persons who first appeared at the scene of occurrence along with Nityananda Bag and Chintamani Das. and Panchu also stated that it is this appellant who caught hold of the cycle of the deceased and later struck him with a stone. During the search of his house, the I. O. recovered the shirt (M. O. XIX) which was found stained with human blood. True it is that the brothers of the appellant also reside in that house and the appellant also disowned the ownership of the shirt, but he did not take the plea that it belongs to one of his brothers. P. W. 23 who is a resident of Mouza Narayanpur was present at the time the house of the appellant was searched and the shirt (M. O. XIX) was seized. He stated that he had seen this appellant wearing the shirt (M. O. XIX). The mere fact that during the examination by the Police P. W. 23 did not make any statement regarding the ownership of the shirt cannot be a ground to reject his evidence regarding the identification of the shirt. The nail cuttings (M. O. XXV) of this accused which the doctor had taken were found stained with blood on chemical analysis. It is true that in the absence of any finding that it was human blood and that it belongs to the same group as that of the deceased, this evidence is not decisive but in the absence of any explanation, it is a circumstance which taken in conjunction with the other evidence against this appellant has its own significance. We are, therefore, satisfied that this appellant is one of the assailants of the deceased.

(c) Appellant No. 3 -- Bhikari Charan Bhuyan: The only acceptable evidence against him is that of Panchu which has already been discussed. Another piece of evidence against him on which the prosecution relies is the recovery of a pair of slippers (M. O. IV) from the place of occurrence. P. W. 4, a resident of Mouza Narayanpur has identified the pair of slippers as belonging to the appellant Bhikari. He however admits that such types of slippers are sold in thousands in the market and that there is no special mark of identification in M. O. IV. It is also admitted by him that on the day following the occurrence, Police had shown the slippers to him in the School house at Narayanpur. No test identification parade had been held in respect of the slippers. In these circumstances, the evidence of P. W. 4 regarding the identification of slippers does not in our opinion carry any weight and cannot be considered to be an incriminating circumstance against the appellant. The position therefore, is that excepting the evidence of Panchu, there is no other evidence against this appellant. Legally, there cannot be any objection to act on Panchu's evidence alone, but when the appellants are being tried on a serious charge like murder, the learned Sessions Judge took the precaution, and in our opinion, rightly to seek for some corroboration to the evidence given by a single eye-witness. The only circumstance which the learned trial Judge considered to afford corroboration to Panchu's testimony is not in our opinion worthy of acceptance. In these circumstances, this appellant is entitled the benefit of doubt.

(d) Appellant No. 4 -- Sanatan Bhuyan: Panchu has implicated this appellant in the commission of the crime. Seeking for corroboration of Panchu's evidence, the learned Sessions Judge relied on the evidence of P. W. 30 who stated that at about 8.40 A. M. on the date of occurrence he had gone to appellant Chintamani Das who was the tax collector of the Grama Pan-chayat for obtaining cycle licence and saw Sanatan sitting with Chintamani. This appellant's presence with Chintamani at the latter's house shortly before the occurrence took place is relied upon as a circumstance to corroborate Panchu's evidence. We fail to understand how this can be so, Chintamani, it is said is the tax collector of the Gram Panchayat Just as P. W. 30 had been to Chintamani it is not unlikely that this appellant also had gone to him for some such purpose. The meeting of this appellant with Chintamani was in the latter's house whereas the occurrence took place at an entirely different place. Therefore, we find in the case of this appellant also that the evidence given by Panchu against him is not corroborated. This appellant therefore, is also entitled to the benefit of doubt.

(e) Appellant No. 5 -- Nityananda Bags Panchu has implicated him in the commission of the offence. P. W. 15 is an agricultural overseer at Balasore. In the year 1955 he had sold a piece of land to this appellant. P. W. 15 says that on 24-11-65 at about 3 P. M. Nityananda met him at the Kutcheri and requested him to tell the year of his purchase. It seems, he took him to a Moharir and applied for a certified copy. The next day the appellant again approached P. W. 15 and requested him to persuade the Moharir to say that he (appellant) had come to Balasore at 10 A. M. on the previous day i.e., 24-11-65. P. W. 15 asked him the reason as to why he was making the request and it seems that the appellant told him that he was apprehending that the Police might arrest him. P. W. 15 refused to comply with the request. It was rightly argued on the prosecution side that this is a circumstance which shows that the appellant was attempting to create evidence for an alibi. There is evidence to show that after this occurrence, the appellant disappeared from his village and it is only on 2-2-1966 that he could be arrested. The appellant admits having left the village after the occurrence but his explanation is that out of fear for Police torture he was staying in a relative's house in village Khanta in the district of Mayurbhanj and ultimately surrendered himself before the Police. There does not appear to be sufficient reason why if he is innocent of the crime he should have been afraid that the Police would arrest and torture him, This circumstance coupled with the testimony given against him by Panchu appears to be significant and taken together with his attempt to create an alibi lends considerable support to Panchu's direct testimony against him. We are satisfied that his complicity in the crime has been established beyond all reasonable doubt.

10. It is clear from the evidence of Burundi P. W. 18 that 8 persons had taken part in the murder of the deceased, although according to our finding Burundi could not identify who the culprits were due to his defective eye-sight. The complicity of the appellants Chintamani Das, Goutam Bhuyan and Nityananda Bag in the crime has been established beyond doubt. It therefore, follows that these three persons along with five others whose identity could not be established, had formed an unlawful assembly with the common object of murdering Ramchandra Choudhury and in pursuance of their common object committed the murder. These three persons are therefore, rightly convicted under Section 302/149, I. P. C.

11. So far the charge under Section 120B is concerned, evidence was let in the prosecution side against not only the five appellants but also the 11 other persons who were put on trial but who have since been acquitted. The evidence let in against all of them relating to the charge of conspiracy is practically common. As the learned Judge was unable to accept the evidence of conspiracy against the 11 other accused persons, it would be unsafe to rely on the very testimony to convict the present appellants on that charge. We would, therefore, set aside the conviction of all the appellants on the charge under Section 120B. I. P. C.

12. In the result, we would uphold the conviction of appellants Chintamani Das, Goutam Bhuyan, and Nityananda Bag under Section 302/149. I. P. C. and the sentence of imprisonment for life imposed upon them. We would set aside the conviction of appellants Bhikari Charan Bhuyan and Sanatan Bhuyan under Section 302/149, I, P. C. and the sentence imposed on them and direct that they be set at liberty forthwith. The conviction of all appellants under Section 120B. L P. C. is also set aside.

Acharya, J.

13. I agree.

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