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Anam Pradhan and ors. Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1982CriLJ1585
AppellantAnam Pradhan and ors.
RespondentThe State
Cases ReferredJagdish v. State of Rajasthan
Excerpt:
- state financial corporations act, 1951 [63/1951]. section 29; [p.k. tripathy, a.k. parichha & n.prusty, jj] discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the.....b.k. behera, j.1. the three appeals arising out of the same judgment and order passed by mr. j. tyagi, additional sessions judge, cuttack, have been heard together and this judgment shall govern the three appeals. the appellants in the three criminal appeals along with fifteen other accused persons stood trial for having committed the offence of rioting being armed with deadly weapons after entering into a conspiracy and for having committed the murder of dibakar rout and for causing grievous and simple hurt to some members of the prosecution party. the appellants brundaban muduli and punananda sahu along with the co-accused ramakanta naik (acquitted), stood charged under section 302 read with section 114 of the penal code (hereinafter referred to as the 'code'), the appellants kedar.....
Judgment:

B.K. Behera, J.

1. The three appeals arising out of the same judgment and order passed by Mr. J. Tyagi, Additional Sessions Judge, Cuttack, have been heard together and this judgment shall govern the three appeals. The appellants in the three Criminal Appeals along with fifteen other accused persons stood trial for having committed the offence of rioting being armed with deadly weapons after entering into a conspiracy and for having committed the murder of Dibakar Rout and for causing grievous and simple hurt to some members of the prosecution party. The appellants Brundaban Muduli and Punananda Sahu along with the co-accused Ramakanta Naik (acquitted), stood charged under Section 302 read with Section 114 of the Penal Code (hereinafter referred to as the 'Code'), the appellants Kedar Ghadei, Pari Sahu son of Dinabandhu and Sananda Padhan along with the co-accused Anam Padhan stood charged under Section 302 read with Section 34 of the Code for committing the murder of Dibakar Rout at Trilochanpur and the appellants in Criminal Appeal No. 231 of 1978 along with sixteen other co-accused persons including the two appellants in Criminal Appeal No. 234 of 1978 stood charged under Section 302 read with Section 149 of the Code for that murder. Charges had also been framed against some of the appellants and other accused persons under Sections 326, 336 read with Sections 149, 326, 324 and 323 of the Code for causing grievous and simple hurt to some members of the prosecution party.

2. We would now proceed to state the case of the prosecution, Daitari Swain (not examined) of Nabadia had 1.53 acres of land in village Trilochanpur of which 1.07 acres were situated to the western side at a lower level of the Bhit-tarjena Muth. Bhagaban Mohanty (P. W. 3) had been cultivating all the lands of Daitari Swain in this village for about ten years prior to the occurrence as a bhag tenant and had, along with his brother Basudev Mohanty (P. W. 5), raised paddy crops in the year 1976. On 23-11-1976, the appellants Punananda Sahu, Nilamani Padhan and Sananda Padhan besides Ananda Padhan removed paddy from a portion of the said land. On the day following, the appellant Brundaban Muduli, co-accused Ramakanta Naik (acquitted) and Mahes-war Mohapatra and Daitari Padhan who were said to be leaders of the Communist Party in that area, were seen proceeding towards village Damapada and at the thrashing floor of the co-accused Bina Padhan (acquitted); the appellants and the other co-accused persons held a meeting and decided to forcibly cut the paddy crops raised by Bhagaban Mohanty (P. W. 3) even at the cost of the lives of persons who might oppose them.

Bhagaban Mohanty (P. W. 3) came to know about this and made arrangements to harvest the paddy crops before the appellants and their companions could cut and take away the crops. In the morning of the 25th Nov., 1976, Bhagaban Mohanty (P. W. 3) along with his brother Basudev Mohanty (P, W. 5), Dibakar Rout (deceased), Babaji Gochhayat (P. W. 6), Chandramani Swain (P. W. 8), Prabhakar Rout (P. W. 9), Shyamsundar Behera (P. W. 13), Rajib Gochhayat (P, W. 15), Mandar Swain and some others went to the land and began to harvest 'the paddy crops. After some time, about forty persons including the appellants and the other accused persons who stood trial came in a body being armed with deadly weapons, such as, swords, Bhalas, Tentas and lathis, after breaking the fence, demarcating the Muth from the land and under the instigation of the appellants Brundaban Muduli and Punananda Sahu, besides some others including Ramakanta Naik (acquitted) and Maheshwar Mohapatra (not a co-accused) to bring away the paddy after cutting the heads or sacrificing their heads for the purpose, the other appellants besides the other co-accused persons rushed to the land and while the prosecution party including Bhagaban Mohanty (P. W. 3) and the labourers were leaving the place the appellants Kedar Ghadei, Pari Sahu (son of Dinabandhu) and Sananda besides Ananda Padhan (co-accused person) assaulted Dibakar to death in furtherance of their common intention.

Some of the accused persons caused grievous hurt to Prabhakar Rout (P. W. 9) and Makara Behera (P. W. 10) and caused hurt to Bhagaban Mohanty (P. W. 3), Basudev Mohanty (P. W. 5), Babaji Gochhayat (P. W. 6), Chandramani Swain (P. W. 8), Prabhakar Rout (P. W. 9), Makar Behera (P. W. 10), Shyamsundar Behera (P. W. 13), Rajiba Gochhayat (P. W. 15) and Dhuli Sahu (not examined). After committing the murder of Dibakar Rout and causing hurt to many persons of the prosecution party, the appellants and their companions left the place. Chandramani Swain (P. W. 8) removed the Bhala (M.O. I.) sticking to the chest of the deceased Dibakar Rout. The deceased and the injured Prabhakar were taken to the thrashing floor of Dama Mohanty (P. W- 1). Dhruba Charan Biswal (P. W. 4) lodged the written first information report (Ext. 1) with the Assistant Sub-Inspector of Police (P. W. 19) of the Ersama Police Station whom he found on his way to the Police Station and investigation followed. Requisitions (Exts. 3/1 to 11/1) for the medical examination of the injured members of the prosecution party and Exts. 12/1 to 18/1 for the medical examination of the injured accused persons, namely, appellants Nilamani Padhan, Pari Sahu, Kedar Ghadei, Judhistir Das and Sananda Padhan were issued.

In the meantime, the Medical Officer (P. W. 11) in charge of the Kujang Primary Health Centre found the dead body of Dibakar in the hospital compound where the dead body had been carried and informed the Officer-in-Charge, vide Ext. 20, a written report and he also intimated the same Officer-in-charge, vide Ext. A. intimating that 15 injured persons belonging to different groups had been admitted as indoor patients. The Sub-Inspector of Police (P, W. 12) attached to the Tirtol Police Station, who was at Kujang on that date, proceeded to the dispensary and held inquest over the dead body of Dibakar Rout, vide Ext. 17, the inquest report and sent the dead body to Jagatsinghpur for post-mortem examination. He seized M.O. I., vide Ext. 12 and handed over the documents to the Officer-in-charge (P. W.. 18) of the Ersama Police Station who took charge of the investigation from P.W. 19 and on its completion, submitted a charge-sheet against the appellants and the other accused persons.

3. The appellants and the other accused persons had pleaded not guilty to the charges and according to them, owing to previous land dispute and enmity, they had falsely been implicated in this case. According to the defence, the appellants Nilamani Padhan and Punananda Sahu and the co-accused Raghu Biswal were in cultivating possession of the land in question as Bhag tenants and had instituted cases under the Orissa Land Reforms Act. Some of the appellants and some of the co-accused persons had taken the plea of alibi.

4. To bring home the charges to the appellants and the other co-accused persons, the prosecution had examined nineteen witnesses. Two witnesses had been examined for the defence. On a consideration of the evidence, the learned Additional Sessions Judge found the appellants Brundaban Muduli and Punananda Sahu guilty under Section 302 read with Section 114 of the Code, convicted them thereunder and sentenced them to undergo imprisonment for life. He found the appellants Kedar Ghadei, Pari Sahu (son of Dinabandhu Sahu) and Sananda Padhan guilty under Section 302 read with Section 34 of the Code for committing the murder of Dibakar Rout in furtherance of their common intention, convicted them and sentenced them thereunder to undergo imprisonment for life. The ten appellants in Criminal Appeal No. 231 of 1978 and the two appellants Brundaban Muduli and Punananda Sahu in Criminal Appeal No. 234 of 1978 were found guilty under Section 302 read with Section 149 of the Code for the murder of Dibakar Rout in furtherance of their common object and were convicted thereunder.

While the ten appellants in Criminal Appeal No. 231 of 1978 were sentenced to undergo imprisonment for life, no separate sentence was passed thereunder against the appellants Brundaban Muduli and Punananda Sahu who had already been sentenced for their conviction under Section 302 read with Section 114 of the Code to undergo imprisonment for life. All the appellants were convicted Under Section 148 of the Code and sentenced thereunder to undergo rigorous imprisonment for a period of one year. The appellants Nilamani Padhan, Kalandi Sahu, Kelu Sahu, Jagu Das and Sananda Padhan were convicted under Section 324 of the Code and sentenced thereunder to undergo rigorous imprisonment for a period of one year. The appellants Bholi Padhan, Fakir Jena, Judistir Das, Duruju Behera and Niranjan Behra were convicted under Section 323 of the Code and sentenced thereunder to undergo rigorous imprisonment for a period of six months. The accused persons were acquitted of the other charges including the charge of criminal conspiracy punishable under Section 120B of the Code. The learned Addl. Sessions Judge directed that the terms of imprisonment passed against the appellants would run concurrently,

5. Mr. Palit and Mr. Jena, the learned Counsel, for the appellants in Criminal Appeal No. 231 of 1978, Mr. R.K. Mohapatra, the learned Counsel for the appellants in Criminal Appeal No. 233 of 1978 and Mr. Mohanty, the learned Counsel for the appellants in Criminal Appeal No. 234 of 1978, have taken us through the relevant evidence and the findings recorded by the Additional Sessions Judge and have submitted that the orders of conviction passed against the appellants cannot be sustained on facts and maintained in law. The learned Additional Government Advocate has, however, submitted that all the appellants have rightly been convicted by the trial Court.

6. Before we proceed to examine the evidence with regard to the complicity or otherwise of the appellants in respect of the charges for which they have been convicted, it may be kept in mind, as has been submitted at the Bar by both the sides, that the evidence of the eyewitnesses in the instant case, as it should naturally be, is that of partisan witnesses coming as they do from one of the two factions claiming cultivating possession over the same land. Stringent criticism has been levelled against their veracity by the learned Counsel for the appellants and it has been urged that the evidence of the witnesses bristles with not only discrepancies in material particulars, but also with exaggerations, improvements and in addition, there has been a tendency even to implicate innocent persons and therefore, their evidence is to be discarded.

The learned trial Judge has taken note of the principles laid dawn in the case of Masalti v. State of U.P. : [1964]8SCR133 to the effect that it would be unreasonable to discard the evidence given by witnesses on the ground that it is evidence of partisan and interested witnesses and the mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. The Court has to appreciate such evidence to find out whether or not there are discrepancies in the evidence, whether or not the evidence strikes to the Court as genuine and whether or not the story disclosed by the evidence is probable. In the case of Hari Obula Reddi v. State of Andhra Pradesh : 1980CriLJ1330 , the Supreme Court has laid down as follows (para 12):.But it is well settled that interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. Ali that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon. Although in the matter of appreciation of evidence, no hard and fast rule can be laid down, yet, in most cases, in evaluating evidence of an interested or even a partisan witness, it is useful as a first step to focus attention on the question, whether the presence of the witness at the scene of the crime at the material time was probable. If so, whether the substratum of the history narrated by the witness, being consistent with the other evidence on record, the natural course of human events, the surrounding circumstances and inherent probabilities of the case, is such which will carry conviction with a prudent person. If the answer to these questions be in the affirmative, and the evidence of the witness appears to the Court to be almost flawless, and free from suspicion, it may accept it, without seeking corroboration from any other source. Since perfection in this imperfect world is seldom to be found, and the evidence of a witness, more so of an interested witness, is generally fringed with embellishment and exaggerations, however true in the main, the Court may look for some assurance, the nature and extent of which will vary according to the circumstances of the particular case, from independent evidence, circumstantial or direct, before finding the accused guilty on the basis of his interested testimony. We may again emphasise that these are only broad guidelines which may often be useful in assessing interested testimony, and are not iron-cased rules uniformly applicable in all situations.

These principles are to be kept in mind while fudging the evidence of P. Ws. 1 to 6, 8' to 10 and 13 to 15 in this case.

7. Another noticeable feature is that while considering the question of the presence of the appellants on the scene of occurrence, the learned Judge has observed that there has been absolutely no materials brought out on record in support of the plea of alibi set up by the appellants Brundaban and Pun-ananda. Apart from these two appellants, as noticed by the learned Judge, two other accused persons, namely, Ramakanta Naik and Maheswar Lenka, who have been acquitted, had also taken the plea of alibi. The learned trial Judge has observed that as the plea of alibi has not been substantiated by any materials with regard to the appellants Brundaban and Punananda, the prosecution evidence has become stronger and therefore, there is no reason to discard the evidence of P. Ws. 1, 2, 3, 5, 6 and 10 who implicate these two appellants as the instigators. We will be coming to the intrinsic value of the testimony of these witnesses in this regard at the appropriate stage while considering the charge under Section 302 read with Section 114 of the Code against the two appellants. We must, however, point out that such an approach by the trial court was basically wrong. The prosecution is to prove its case and falsity of defence cannot establish it. If the other circumstances point unfailingly to the guilt of the accused, the falsity of the defence can be considered as an additional link. The prosecution case cannot be said to be proved as a result of failure of an accused person to prove his plea of alibi. In this connection, reference may be made to the principles laid down in the cases of State of Haryana v. Prabhu : 1979CriLJ892 and Shankarlal Gyarasilal Dixit v. State of Maharashtra : 1981CriLJ325 .

8. It admits of no doubt from the evidence that on the day and at the time of the occurrence, Bhagaban Mohanty (P. W. 3), Basudev Mohanty (P. W. 5), Babaji Gochhayat (P. W. 6), Chandra-mani Swain (P. W. 8), PrabhakaV Rout (P. W. 9), Makara Behera (P. W. 10), Shyamsundar Behera (P. W. 13), Dhuli Charan Sahu (P. W. 14) and Rajiba Gochhayat (P. W. 15) had received injuries and these prosecution witnesses, on police requisitions, had been examined by Dr. Shyama Prasad Nayak (P. W. 11) on the day of occurrence itself. On the same day the same Doctor had, on police requisitions, examined the appellants Kedar Shadei, Judhistir Das, Nil-amani Padhan, Pari Sahu and Sananda Padhan who had also received injuries, As has rightly been submitted on behalf of the State, the presence of injuries on the persons of these prosecution witnesses and appellants would indicate that they were present on the spot and this circumstance would show that the above-mentioned prosecution witnesses were competent to depose about the occurrence.

As a matter of fact, there had been case and counter case between the parties and on the first information report (Ext, 21) of the appellant Sananda Padhan, a case had been registered and investigation had been taken up against the prosecution witnesses Dama Mohanty (P. W. 1), Bhagaban Mohanty (P. W. 3), Basu Mohanty (P. W. 5). Babaji Gochhayat (P. W. 6), Prabhakar Rout (P. W. 91, Makara Behera (P. W. 10), Shyamsundar Behera (P. W. 13), Dhuli Sahhu (P. W. 14), Dibakar Rout (deceased) and some others and the case against these persons was under Sections 147, 148, 323, read with Sections 149 and 426 of the Code, as can be seen from Ext. 21. It would be seen from the evidence of P. W. 11, the Doctor, that some of the appellants examined by hip had cut injuries which could be caused by sharp cutting weapons. In this background, the evidence led by the prosecution is to be judged.

9. Before we proceed to discuss the evidence with regard to the charges under Sections 302 read with Sections 34, 302 read with Sections 149, 148, 324 and 323 of the Code, it would be convenient to take up the case against the appellants Brundaban Muduli and Punananda Sahu who have been convicted under Section 302 read with Section 114 of the Code for abetting the commission of the offence of murder by the appellants Kedar Ghadei, Pari Sahu and Sananda Padhan and the co-accused Anam Padhan (acquitted). As earlier indicated by us, the charge under Section 120B of the Code has failed. As regards the charge of abetment against the aforesaid two appellants, the prosecution has relied on the evidence of P. Ws. 1 to 6, 9 and 10. It Is important to note that in the first information report (Ext. 1) lodged by no other person than Dhruba Charan Bis-wal (P. W. 4), who was an eye-witness to the occurrence, no allegation whatsoever had been made against these two appellants to the effect that they had been instigating the other accused persons to cut and remove paddy even at the cost of the lives of the members of the prosecution party and at the cost of their own lives by offering their heads, As a matter of fact, no allegation had been made therein regarding any abetment by these appellants or by the other two persons, namely, Ramakanta Naik and Maheswar Lenka. The learned Additional Sessions Judge failed to take due notice of this very important aspect which would go a long way in favour of these appellants who stood charged for abetment.

As has been laid down by the Supreme Court in the case of Ram Kumar Pande v. State of Madhya Pradesh : 1975CriLJ870 , a first information report is a previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it. But omissions of important facts, affecting the probabilities of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case. Apart from this highly suspicious feature in the case of the prosecution with regard to the charge of abetment in that in the first information report lodged by an eyewitness, such an important allegation did not find a place, it has been submitted before us on behalf of the appellants that as the abetment had not been completed before the two appellants appeared on the scene and the case of the prosecution was that by being present on the spot, they abetted, the commission of the offence of murder, they cannot legally be charged of or convicted by the application of Section 114 of the Code and in this connection, Mr. Mohanty has placed reliance on two decisions of this Court in the cases of State of Orissa v. Ghana Padhan 1979 Cut LR (Cri) 203 and Jadunath Das v. State of Orissa (1979) 47 Cut LT 349.

10. Apart from the above legal question, we find, for the reasons to follow, that the evidence of P. Ws. 1 to 6. 9 and 10 cannot safely be accepted with regard to this charge. As already indicated by us, two of the four persons charged for abetment along with these two appellants have been acquitted by the trial court. P. W. 1 had implicated the accused Ramakanta Naik (acquitted), Maheswar (acquitted), Punananda and Daitari (not an accused). He had made no allegation whatsoever against the appellant Brundaban. He had admitted in his cross-examination that the appellant Punananda Sahu along with others had instituted cases under the Orissa Land Reforms Act claiming to be tenants of the disputed land. P. W. 2 had named these two appellants as the abettors. P. W. 3 had also implicated these two appellants in this regard. He had hot stated to the Investigating Officer about the instigation by the appellant Punananda. This witness had deposed about the allegation of conspiracy and the learned Judge did not place reliance on his evidence in that regard, P. W, 4 was the first informer who had spoken nothing about it in the first information report.

P. W. 5 had testified about the abetment against the two appellants, but he, too, had not named the appellant Punananda in this regard in his statement to the Investigating Officer. P. W. 6 had, in his examination-in-chief, implicated the two appellants in this regard, but he had also not implicated the appellant Punananda in his statement to the Investigating Officer. P. W. 9 had spoken about the instigation by the appellant Brundaban. In his statement to the Investigating Officer, this witness had not stated about it, According to P. W. 10, the two appellants and Ramakanta were inciting others. He had further deposed that the appellants had been asking to cut 2 to 3 heads and bring away paddy and the other two persons Ramakanta and Maheswar were shouting and the appellant Punananda was shouting that they should offer their heads or bring away some heads or cut some heads.

He had not stated to the Investigating Officer about the instigation by the appellants in the manner deposed to by him. It would thus be seen from the evidence of these witnesses that designedly and intentionally, they had made statements at the stage of trial implicating some of the appellants with regard to this charge, although they had not stated so to the Investigating Officer. This important allegation was not alleged in the first information report and the prosecution witnesses whose evidence had been relied on in respect of this charge have made prevaricating and inconsistent statements from stage to stage and had not hesitated to faimly implicate some of the appellants in such a grave charge. In view of these facts and circumstances, it would not be safe and proper to accept the evidence of the prosecution with regard to this charge and hold the two appellants guilty of murder by the application of Section 114 of the Code or hold them guilty of the charge of abetment by the application of Section 109 of the Code.

11. We would next come to the charges under Sections 148, 302 read with Sections 149 and 302, read with Section 34 of the Code. All the appellants along with the co-accused persons had been charged under Section 148 for being members of an unlawful assembly being armed with deadly weapons, such as, lathis, bhalas swords and tentas and the common object was said to be to cause the death of Dibakar Rout and to assault Pravakar Rout and others. The appellants in Criminal Appeals Nos. 231 and 234 of 1978, stood charged under Section 302 read with Section 149 along with acquitted co-accused persons and it was stated in the charge that in prosecution of the common object of the unlawful assembly, four of the accused persons, namely, Kedar Ghadei, Pari Sahu, Sananda Padhan and Anam Padhan, caused the death of Dibakar Rout which offence the members of the assembly knew to be likely to be committed in prosecution of the common object of the assembly. The appellants Kedar Ghadei, Pari Sahu and Sananda Padhan (in Criminal Appeal No. 233 of 1978) along with the co-accused Anam Padhan, the latter having been acquitted, stood charged under Section 302 read with Section 34 for committing the murder of Dibakar Rout in furtherance of their common intention.

We must at the outset state that charges had not properly been framed in that while the persons who had allegedly committed the murder of Dibakar stood charged for having committed the murder in furtherance of their common intention and had not been charged for the commission of the offence of murder of Dibakar. Rout by being members of the unlawful assembly by application of Section 149, the appellants who have now been convicted under Section 302 read with Section 149 had not been charged for sharing the common intention with the alleged murders. Thus while the persons who had allegedly committed the murders had not been charged for sharing the common object of the unlawful assembly to commit the murder, the others were so charged and were not only charged, but were ultimately convicted. This, in our view, was not appropriate and proper. We would come to the charge under Section 302 read with Section 34 against the four accused persons named above, three of whom have been convicted of that charge. Presently we shall deal with the charges under Sections 148 and 302 read with Section 149 of the Code.

12. Section 141 of the Code defines 'unlawful assembly' and it reads:

141. An assembly of five or more persons is designated an 'unlawful assembly' if the common object of the persons composing that assembly is-

First - To overawe by criminal force, or show of criminal force, the Central or any State Government or Parliament or the Legislature of any State or any public servant in the exercise of the lawful power of such public servant; or

Second - To resist the execution of any law, or of any legal process; or

Third - To commit any mischief or criminal trespass, or other offence; or

Fourth - By means of criminal force, or show of criminal force, to any person to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in. possession or enjoyment, or to enforce any right or supposed right; or

Fifth - By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.

Explanation - An assembly, which was not unlawful when it assembled, may subsequently become an unlawful assembly.

Wherever force or violence is used by an unlawful assembly or by any member thereof in prosecution of the common object of such assembly, every member of such assembly would be guilty of the offence of rioting and such of the members of the unlawful assembly who are armed with deadly weapons are liable to be punished under Section 148 of the Code. If an offence is committed by any member of an unlawful assembly in prosecution of the coiranon object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence. This is what has been provided in Section 149 of the Code.

13. Could it be said in the instant case that the appellants who had been convicted for being members of an unlawful assembly under Section 148 and for sharing the common object to commit the murder of Dibakar by the application of Section 149 were liable to be convicted thereunder? While according to the learned Additional Government Advocate, the answer to this question is to be found in the affirmative, it has strenuously been urged on behalf of the appellants that by being in possession of the disputed land and having raised the crops, the appellants had the right to defend their possession as against wanton acts of trespass and theft committed by the prosecution party on the day of occurrence by being armed with deadly weapons and that, therefore, the appellants' intention was to defend their possession and in the process, they had the right to use force in exercise of the right, of private defence of property and their persons and they did not have the common object to commit any mischief or criminal trespass or other offence or to obtain possession of any property by means of criminal force or show of criminal force nor had they common object to deprive any person of the enjoyment of any property nor to enforce a right or supposed right and therefore, even assuming that the appellants were present on the scene, some of them being armed with weapons to defend themselves, it could not be said that they were members of an unlawful assembly and consequently, they could not be held to be guilty of the offence of rioting, nor could they be constructively liable for the murder by the application of Section 149.

14. In this context arises the vital question > for determination as to which party was in possession of the land in question. Both the sides led evidence in. this regard. Unfortunate as it might seem, the learned Sessions Judge did not even refer to the evidence of D. Ws. 1 and 2, both of whom had supported the case of possession of the appellants Nilamani, Punananda Sahu and Raghunath Biswal, a co-accused person, who was acquitted, Ext. B is the order in O.L.R. Case No. 1386 of 1976 passed on 8-7-1976, and as rightly submitted on behalf of the appellants, this document would indicate that the appellants' party had cultivated the disputed land in the year 1976 and Diatary Swain, the owner of the disputed land, had admitted this in an affidavit filed by him. The Tahsildar also had recorded in the order that the land owner had not asserted in his affidavit that those of the accused persons claiming the land were not his tenants.

Daitary Swain, the owner of the land, was examined by the Investigating Officer, but the prosecution withheld the evidence of this witness by not examining him. The learned Sessions Judge did not take adequate notice of this vital omission on the part of the prosecution and in our view, an adverse inference should appropriately be drawn against the bona fides of the prosecution case for the non-examination of this material witness with regard to the factum of possession. It would be seen from the evidence of P. W. 3 that the appellants Punananda Sahu and Nilamani Padhan besides Raghunath Biswaf had filed the O.L.R. case in respect of the disputed land and he had filed a case in 1976. The culmination of the O.L.R. Case in favour of P. W. 3 as per Ext. 25 on 20-7-1978, could not be taken into consideration against the case of the appellants as this order was passed long after the occurrence and from this, it could not be said that the claim of possession from the appellants' side was not real, but a mere pretence.

Another strong feature supporting the case of possession of the appellants' party was that even according to the case of the prosecution, the appellants' party had cut paddy crops from the land in question on 23-11-1976 and despite the fact that this was known to the complainant's party, there was no resistance by them nor had any report been lodged against such act from the side of the appellants. On the other hand, as the prosecution sought to establish by its evidence, having come to know that the appellants' party would go and further cut away the crops on the day of occurrence, the complainant's party, instead of taking resort to public authorities, took law into their own hands and being armed with sharp cutting and blunt weapons, as the evidence and the injuries on some of the members of the appellants' party-would undoubtedly indicate, went upon the land to prevent the party of the appellants from harvesting the crops raised by some of the appellants. It was then that the party of the appellants had allegedly gone to the scene. It could not, therefore, be said that the appellants had the common object to take law into their own hands and by use of force or show of force deprive the complainant's party from harvesting the crops nor could it be said that they had the object to commit mischief, trespass or theft.

15. The essence of the offence is common object of the persons forming the assembly. Whether the object is in their minds when they come together or it occurs to them on the spot is not material. It is, however, necessary that the object should be common to the persons forming the assembly and they should all be aware of it and concur in it. There is a difference between object and intention. Though the object of an assembly is common, the intentions of the members may differ. An unlawful object may develop after the people gather at the scene of offence. It is enough if each of the members has he common object in view and their number is five or more and that they act as an assembly to achieve that object. To constitute an unlawful assembly, the common object of the assembly must be an immediate one to be carried into effect forthwith. Mere presence of a person at the time of commission of rioting is not sufficient to show that he was a member of the unlawful assembly which committed the offence.

The crucial question to determine is as to whether the persons of the assembly entertain one or more, of the common objects specified by Section 141 of the Code. The primary question for consideration is as to whether the object of the assembly of the appellants was unlawful. In view of what we have stated above, it could not be said that the appellants or five or more of them had the common object to commit any offence and if after the complainant's party left the scene, some of the appellants chased and assaulted them and in a melee, some of the appellants and some of the prosecution party took to free fight in the course of which injuries had been caused to some persons of either party, it could not reasonably be said that the appellants' party, who had come to the scene with the primary object to defend possession of the property with the use of some force, if necessary, or to defend their persons, had also formed the common object to commit the murder of Dibakar Rout or to cause grievous or simple hurt to some of the members of the complainant's party.

16. For the aforesaid reasons, we hold that the charges under Sections 148 and 302 read with Section 149 of the Code and the charge in respect of offence of causing grievous or simple hurt by the application of, Section 149 have not been established and must fail.

17. We would now come to the charge under Section 302 read with Section 34 of the Code against the three appellants in Criminal Appeal No. 233 of 1978, and the co-accused person (acquitted) and the charges for individual assaults on some, persons of the complainant's party.

18. Dr. Samal (P. W. 7) had conducted the autopsy over the dead body of the deceased Dibakar on 26-11-1976 at 4 p.m. as per the post-mortem report, Ext. 8 and had noticed an abrasion 4' x 1' on the lateral side of the left knee, an incised wound 2' x }' x scalp deep on the left parietal region above the left ear and an incised wound 2' x 4 X thoresic cavity situated on the sternum and on dissection found no internal injury corresponding to the external injury on the left knee and he found no blood clot between the skull and scalp corresponding to the external incised wound on the left parietal region. However, corresponding to the external injury No. 3 which, according to him, was a punctured wound, it was noticed that the eighth costosternal cartiledge and the portion of the rib attached to the cartilege were cut, the doms of the right liver, was punctured and there had been collection of blood into thorasic cavity. All the injuries, according to the Doctor, were ante-mortem in nature and death might have taken place within 36 hours due to shock and haemorrhage. According to him, the incised wound on the left parietal region could be caused by a sword by its sharp edge and the external incised wound on the 6ternum with the consequent internal injury could be caused by a Bhala. The last-mentioned injury with the consequent external injuries was sufficient in the ordinary course of nature to cause death, as testified by P. W. 7. There could thus be no doubt from this evidence that the death of Dibakar was homicidal in nature.

19. The other Doctor (P. W. 11) had examined nine injured persons from the side of the complainant on 25-11-1976. He had noticed two contusions which could be caused by a blunt object like lathi on the person of Shyamsundar Behera (P. W. 13) as per Ext. 6, two contusions on the person of Dhuleswar Sahu (P. W. 14) which could be caused by a blunt object as per Ext, 4, a contusion on the person of Chandramani Swaih (P. W. 8) which could be caused by a blunt object as per Ext. 5, a cut injury which could be caused by sharp cutting weapon and a contusion which could be caused by a blunt object on the person of Babaji Gochhayat (P. W. 6) as per Ext. 6, a lacerated wound and two contusions which could be caused by a blunt object, on the person of Basudev Mohanty (P. W. 5) as per Ext. 7, a lacerated wound and a contusion which could be caused by a blunt object on the person of Bhagaban Mohanty (P. W. 3) as per Ext, 8, two linear contusions which could be caused by a blunt object on the person of Rajit Gochhayat (P. W. 15) as per Ext. 9, a cut injury which could be caused by a sharp cutting object and a lacerated wound and a contusion which could be caused by a blunt object on the person of Prabhakar Rout (P. W. 9) as per Ext. 10 and two lacerated wounds and three contusions which could be caused by a blunt object on the person of Makara Behera (P. W. 10) as per Ext. 11.

All the injuries except a contusion on the person of Prabhakar Rout (P. W. 9) and two contusions on. the person of Makar Behera (P. W. 10) in respect of which opinion was reserved, were simple in nature. No evidence was led by the prosecution to indicate that the three injuries in respect of which opinion had been reserved were found to be grievous in nature. The presence of injuries on the persons of the above-mentioned wit-nesses would indicate that they had been assaulted by some members of the opposite faction and the injuries found on their persons were not likely to have been caused by themselves in order to bolster up their case against the accused persons. All the injuries were caused within 24 hours and this timing would fit in with the case of the prosecution.

20. The appellants Kedar Ghadei, Pari Sahu and Sananda Padhan along with Anam Padhan stood charged under Section 302 read with Section 34 of the Code for having committed the murder of Dibakar Rout and the evidence led by the prosecution was that while the complainant's party were running away leaving the land, the appellant Kedar caught hold of the deceased Dibakar from behind, the appellant Pari stabbed the accused on his chest by means of a Bhala which was the fatal injury and which caused the death, the appellant Sananda dealt a blow by means of the sword on the head of the deceased Dibakar and Anam dealt a lathi blow on the head of the deceased. This had been deposed to by the eye-witnesses P. Ws. 1 to 6. 8 to 10. and 13 to 15. The learned Sessions Judge did not place reliance on the evidence with regard to the assault by Anam on the person of the deceased as apart from the fact that some of the prosecution witnesses had not implicated this accused person as one of the assailants of the deceased, the evidence of the Doctor, according to the learned Judge, would belie this part of the prosecution story and in our view, the learned Judge was right in discarding this part of the evidence of the 'eye-witnesses. Thus the witnesses, who were partisan and interested ones, had deliberately implicated a person in the commission of the offence of murder, and this would certainly keep the court on its guard to judge and scrutinise the evidence of such witnesses with great care before accepting the same.

21. The evidence of the prosecution witnesses that the appellant Kedar caught hold of the deceased from behind and that the appellant Pari dealt the fatal blow by striking the deceased on his chest by means of a Bhala and that the appellant Sananda dealt a blow on the head of the deceased by means of the sword was uniform and the evidence of witnesses was consistent in this regard. It must, however, be kept in mind that in the first information report lodged by P. W. 4, who on his own showing, had seen the entire occurrence and had made clear and definite statements in the first information report as to who assaulted the deceased and how he died, had not implicated the appellant Sananda as one of the assailants. We have earlier indicated that although the statement made in the first information report, strictly speaking, would corroborate or contradict its maker, omission of important facts figuring in the evidence can be taken into consideration under Section 11 of the Evidence Act. p w. 4 did admit in his evidence that in the first information report, he had not named appellant Sananda as one of the assailants of the deceased. He has not offered any explanation in his evidence at the trial as to how he omitted this important part with regard to the story of killing of the deceased in his report at the police station.

He had stated in the first information report that the appellant Kedar caught hold of the deceased from behind and the appellant Pari stabbed the deceased from his front side on his right side chest by means of a Bhala and suddenly, the deceased fell on the ground and died. He had not stated a word about the assault on the deceased by the appellant Sananda. True besides an abrasion found on the right knee on the person of the deceased which, as has been submitted at the Bar, could have been caused by fall on the ground, the Doctor (P. W. 7) had noticed, besides the stab injury on the chest, an incised wound on the head, but without clear evidence as to who had assaulted the deceased on his head by means of a sharp cutting instrument and as in. the first information report it had not been stated that the appellant Sananda had dealt the blow on the head, it would, in our view, be reasonable to accept the contention raised on behalf of this appellant that although his name did not figure in the first information report, the prosecution witnesses have later introduced a theory that this appellant was also one of the persons who had assaulted the deceased Dibakar. Merely because a number of witnesses have come forward and (implicated this appellant, he could not be held to be liable for the reasons indicated above.

The incised wound on the head, as would appear from the medical evidence, was not a deep injury and this was not responsible for causing the death of Dibakar. The injury caused on his chest by the appellant Pari by means of a Bhala which had caused internal injuries including the injury to the liver was the fatal injury. As to the complicity of the appellant Kedar Ghadei who had caught hold of the deceased from behind and the appellant Pari Sahu, who stabbed and caused the fatal injury, the evidence of the prosecution witnesses was clear, cogent and consistent and had found assurance from the medical evidence already referred to, These two persons had also been named in the first information report. We have, therefore, no doubt in our mind and we accept the ease of the prosecution that the appellant Kedar caught the deceased from behind and the appellant Pari stabbed him on the right side of the chest by means of a Bhala which caused his death.

22. The next question for consideration would be as to whether the appellants who had been responsible for causing the death of the deceased could be protected by the right of private defence of person or property, and as to whether it could be said that the appellant Kedar had shared the common intention with Pari to commit the murder. The learned Sessions Judge held that the appellants were not protected by the right of private defence of property or person. Reliance has been placed by the learned Counsel for the appellants on the principles laid down in the case of State of Orissa v. Rabiridranath Dalai ILR (1973) Cut 393 : 1973 Cri LJ 1986 (FB). We have held, differing from the conclusion reached by the learned Sessions Judge, that the party of the appellants were in possession of the land in question, The principles laid down in the aforesaid case would not, however, be made applicable to the facts of this case in that there was the clear and acceptable evidence in the instant case from the side of the prosecution that the occurrence had not taken place on the land in the possession of the appellants, but on the land of Shyama Mohanty adjacent to the land in question at a time when on seeing the appellants and the other co-accused persons, the prosecution party had taken to their heels.

This could be seen from the evidence of P. Ws. 1, 4 to 6, 8 to 10 and 13 to 15. The Assistant Sub-Inspector Police (P. W. 19) had also testified that the spot of occurrence was a paddy field belonging to Shyama Mohanty adjacent to the land in question. There was no evidence that at the time of the assault on the deceased, he had been carrying away any property belonging to the appellants and that the circumstances were such that the appellants would apprehend reasonably that death or grievous hurt would be the consequence if they did not exercise the right of private defence. Although the evidence would show that in the first information report lodged against the complainant's party in the counter case, the deceased had figured as one of the accused persons, it had not been shown by the defence nor did -the materials on record indicate that at the time the deceased was caught by the appellant Kedar and stabbed by the appellant Pari, he (deceased) had been armed or that he had made any attempt to assault any of the members of the appellant's party. When the deceased, who had been employed as a labourer for the purpose of harvesting the paddy crops, had left the land in dispute and was on the land of Shyama Mohanty, he was attacked and stabbed. Owing to these facts and circumstances, we find that the appellants had neither the right of private defence of property nor of person and therefore, the action of the appellants or any one of them in killing the deceased could not be protected by law.

23. An important question would now arise as to whether both the appellants Kedar Ghadei and Pari Sahu had shared the common intention to cause the death of the deceased. It is, no doubt, true that the appellant Kedar caught hold of the deceased from behind and the appellant Pari Sahu stabbed the deceased from his front by means of a Bhala which resulted in his death. It may, however, be kept in mind that the occurrence had taken place at a stage when the complainant's party had left the land and were going away and some of the members of the party of the appellants chased them.

We have already held that the evidence did not warrant a conclusion that the appellant's party had shared the common object of committing the murder It could not be said, in the circumstances of the case, that the appellant Kedar had shared the common intention with the appellant Pari to commit the murder.

There was no evidence that both the appellants Kedar and Pari had any talk between themselves prior to the attack on the deceased. There was no evidence either that at the instance of the appellant Pari or under his instigation, the appellant Kedar caught hold of the, deceased from behind. Kedar, it was alleged, had been armed with a Tenta. If he had the intention to cause the death of the deceased, he could as well attack him by that weapon. Instead of doing so, he merely caught hold of the deceased from behind. It could be, as has been submitted on behalf of this appellant, that if this part of the prosecution case is accepted and it has been accepted by us, the purpose of the appellant Kedar in catching hold of the deceased might be to challenge and ask him as to why he had come to the land.

The act of Kedar catching hold of the deceased from behind might have facilitated the commission of the act of murder by the appellant Pari who stabbed the deceased on his chest by means of a Bhaia, but in the absence of circumstances pointing to a conclusion that in order to facilitate the stabbing by means of a Bhala by the appellant Pari, the appellant Kedar caught hold of the deceased from behind and further in the absence of evidence definitely showing that even when the appellant Par attacked and assaulted the deceased on his chest, the appellant Kedar had caught hold of the deceased, it could not, in our view, be reasonably said that the appellant Kedar had shared the common intention with the appellant Par-in committing the murder of the deceased. Even if it could be said that the appellant Kedar might have the common intention, it could not definitely be said that he must have had the common intention and as has been laid down by the Supreme Court in the case of Gajjan Singh v. State of Punjab : 1976CriLJ1640 , it would not be sufficient if it is held that somebody may have the common intention and it must be established that he must have had the common intention, as there is a gap between 'may' and 'must'.

24. For the aforesaid reasons, we find that the charge of constructive liability against the appellants Kedar, Pari and Sananda for committing the murder of the deceased cannot be sustained, but there is clear, cogent and acceptable evidence from the side of the prosecution that the appellant Pari stabbed the deceased on his chest 'by means of a Bhala, a pointed and dangerous instrument and had attacked the deceased on a vital part with the evident intention to cause his death and with that, intention, caused an injury, which was sufficient in the ordinary course of nature to cause death, as testified by P. W. 7, the Doctor, Chandramani Swain (P. W. 8) was the person who had removed the Bhala (M. 0. 1) used by the appellant Pari as the head portion of the Bhala was sticking to the chest of the deceased. He had properly identified M.O. I. as the weapon of attack. Shyam Sundar Behera (P. W. 13) had also identified M.O. I to be the Bhala used by the appellant Pari. P, W. 12, the Sub-Inspector of Police, had seized M, O. I, vide Ext. 18, the seizure list. On chemical examination, blood was detected in M.O. I although its origin could not be determined. According to the Doctor, this Bhala (M.O. I) could cause injury resulting in the death of Dibakar. There could thus be no doubt that M. 0. I was the weapon of attack used in the commission of the murder of the deceased by the appellant Pari. The appellant Pari can legally be convicted for the substantive offence of murder punishable under Section 302 of the Code and we so convict. him.

25. We would now come to the order of conviction under Section 324 of the Code against some of the appellants, namely, Nilamani Padhan, Sananda Padhan, Kalandi Sahu, Kelu Sahu and Jagu Das and under Section 323 of the Code against appellants Bholi Padhan, Fakir Jena, Judhistir Das, Duruju Behera and Ni-ranjan Beura. It would be clear from the evidence that while the complainant's party was going away leaving the land in dispute and were on the land of Shyama Mohanty an adjacent land owner, the first attack was on the deceased Dibakar and the evidence was clear that after the appellant Kedar, caught hold of him. the appellant Pari stabbed him to death by means of a Bhala. The prosecution had not presented a clear and complete picture as to what happened at the scene thereafter and as rightly submitted on behalf of the appellants, the prosecution was guilty of suppression of a material part of the occurrence in that although five of the appellants, namely Kedar Ghadei, Judhistir Das. Nilamani Padhan, Pari Sahu and Sananda Padhan had received injuries which could be caused by sharp cutting instruments and hard and blunt objects, the prosecution had not explained as to how and under what circumstances the injuries on' the persons of the appellants had been caused. The prosecution case is not to be invariably discarded in a case because of its failure to explain the injuries on the persons of some of the accused persons. Each case may have to depend on its own facts and circumstances.

As has been laid down by the Supreme Court in the case of Jagdish v. State of Rajasthan : 1979CriLJ888 , where serious injuries are found on the person of the accused, as a principle of appreciation of evidence, it becomes obligatory on the prosecution to explain the injuries so as to satisfy the court as to the circumstances under which the occurrence originated. But before this obligation & glaced on the prosecution, two conditions must be satisfied: (a) that the injuries on the person of the accused must be very serious and severe and not superficial and (b) that it must be shown that the injuries must have been caused at the time of the occurrence in question. In the instant case, the Doctor (P. W. 11) had on 25-11-1976 noticed a lacerated wound on the left hand and an abrasion over the left palm and another abrasion over the across the root of the first metacarpal bone on the left side of the person of the appellant Kedar Ghadei as per Ext. 12, the injury report and according to the Doctor, the lacerated wound could be caused by a blunt object and the other two injuries could be caused by friction with a hard object. On the same day, he had noticed two contusions, one over right wrist and the other over the right elbow of the appellant Judhistir Das and according to him, both the injuries could be caused by a blunt object. Ext, 13 was the injury report.

He had examined on the same day the appellant Nilamani Padhan and had found a cut injury 1' x1/2 'x3/4' over the calf of the right side in the middle which could be caused by a sharp cutting weapon, as per the injury report, Ext. 14. The same Doctor had found a cut injury over the left forearm of the appellant Pari Sahu which could be caused by a sharp cutting weapon, as per Ext. 15, his injury report. He had noticed a contusion over the left forearm and an abrasion over the right cheek of the appellant Sananda Padhan and according to him, the contusion could have been caused by a blunt object and the other injury could be caused by a friction with hard object as per his injury report, Ext. 16. The Doctor had opined that all the injuries noticed on the aforesaid five appellants were simple in nature except the contusion on the person of the appellant Sananda for which he reserved his opinion pending the X-ray examination. This would give an indication that the injuries had been caused on the persons of the five appellants by hard and blunt objects, such as, lathis and by sharp cutting instruments. The injuries might be simple in nature, but were not superficial. All the injuries, according to P. W. 11, had been caused within twenty-four hours. This would fit in with the time of occurrence.

As his evidence would show, he had examined the injured prosecution witnesses and the injured appellants on police requisitions. It would be clear from the evidence that all the injured persons from both the sides had been admitted for treatment on the same day. As earlier indicated, there had been case and counter-case and the counter-case was against persons including some of the prosecution witnesses. There could thus be no doubt from the evidence and the circumstances of the case that the injuries on the persons of the five appellants had been caused during the occurrence. The prosecution witnesses, instead of explaining as to how and under what circumstances some of the appellants came by the injuries on their persons, chose to suppress this part of the occurrence and did not present a true picture of the occurrence which took place after the assault on the deceased Dibakar and resorted to making false statements in the court with regard to the injuries on the persons of the appellants. P. W, 1 stated that he did not know if any of the accused persons and if so, who had received injuries during the occurrence. P. W. 2 had not explained as to how some of the appellants had received injuries on their persons. P. W. 3 had asserted that he had not assaulted any of the accused persons and he had not seen the appellants Nilamani, Pari, Kedar, Judhistir and Sananda being assaulted by any one and he did not see injuries on their persons.

P. W. 4 had stated that during the occurrence,- he had not seen any one assaulting any of the accused persons and had even gone to the extent of asserting that the appellants Nilamani, Pari, Kedar, Judhistir and Sananda had no injuries on their persons to his knowledge. Although on his own showing, he had gone to the Kujanga Hospital where the injured persons from both the sides had been admitted and had been receiving treatment, he had stated that he did not see any of the injured appellants at the hospital with injuries on their persons. P. W. 5 had stated that after the occurrence, he had not seen any injury on the persons of these five appellants. P. W. 6 had stated that he had been to the hospital for medical treatment for the injuries received by him, but he did not see any of the appellants going to the hospital for treatment for any injury on their persons. P. W. 8 had stated that he had not assaulted any of the accused persons nor had he seen any one assaulting the accused persons. P. W. 9 had not stated as to how and under what circumstances the 'five appellants received the injuries. P. W. 10 had stated that he had not assaulted any of the accused persons nor had he seen any of the accused persons being assaulted or receiving injuries. P. W; 13 had stated that he did not know if at the time of the occurrence any of the accused persons had injuries.

He had gone to the length of saying that he did not see any of the accused persons going to Kujang Hospital on the day of occurrence nor had he seen any of them in the hospital during the period he was there for treatment. According to P. W. 14, he remained in the hospital for about 6 to 7 days and he had not seen any of the accused persons having been kept as an indoor patient in the same hospital. P. W. 15 had deposed that he had not assaulted any of the accused persons nor had seen any of the accused persons being assaulted at the place of occurrence. The Doctor (P. W. 11), who had examined the injured prosecution witnesses and the injured appellants being the Medical Officer attached to Kujang Primary Health Centre on the day of occurrence had testified that he had intimated the Officer-in-Charge of the police station, vide Ext. A, that 15 persons belonging to different groups had been admitted as indoor patients.

These prosecution witnesses and the injured appellants had been admitted on the same day in the same Primary Health Centre and had remained for treatment for their injuries. Yet the prosecution witnesses went to the length of pleading their ignorance even about the admission of some of the appellants in that Health Centre for treatment of their injuries. All this would show that the prosecution witnesses had deliberately suppressed a part of the occurrence and had not presented a true and complete picture of the occurrence after the assault on the deceased Dibakar. It would not be reasonable and proper, in our view, to accept the evidence of such witnesses and hold some of the appellants guilty for the charge under Section 324 and some of the other appellants guilty for the charge under Section 323 of the Code, as was done by the learned Sessions Judge. In view of what we have stated above, the learned Judge was not at all justified in surmising in para 11 of the judgment that the injured appellants might have received the injuries after the occurrence and while fleeing away after committing the offence. The aforesaid facts and circumstances of the case would undoubtedly show that the five appellants had received the injuries during the occurrence and that the prosecution had not come forward with a true story as to how and under what circumstances some of the prosecution witnesses and some of the appellants had been assaulted and had sustained injuries after the assault on the deceased Dibakar.

26. Apart from the aforesaid considerations, it would be noticed that although the prosecution witnesses had implicated the appellants in the commission of these offences of causing hurt and on their own showing, they had known the accused persons and their names from before, some of the appellants had not been implicated by them at all in their statements made to the Investigating Officer. The appellant Anam Padhan had not been implicated by P. Ws. 6 and 10. P. Ws. 1, 3, 9 and 14 had not implicated the appellant Ka-landi Sahu as one of the culprits. Appellant Kelu Sahu had not been named by P. Ws. 1, 2, 3, 5, 9, 13 and 14. P. Ws. 1, 3 and 14 had not implicated the appellant Jadu Das. The appellant Bholi Padhan had not been implicated by P. Ws. 3, 5, 6, 9, 10 and 14. The appellant Fakir Jena had not been implicated by P. Ws. 10, 13 and 14. The appellant Duruji Behera had not been implicated by P. Ws. 5, 9, 14 and 15. All this would show that in their statements to the Investigating Officer, the aforesaid witnesses had not even tanned the above-named appellants to have come to the scene of occurrence, but they had no hesitation in implicating these appellants at the stage of trial. These omissions could not be characterised as inconsequential and were certainly vital affecting the testimony of the prosecution witnesses who, having not implicated some of the appellants at the stage of investigation, tried to rope them in at a later stage.

27. Considering the aforesaid facts, evidence and circumstances, we are of the view that the charges under Sections 324 and 323 of the Code had not been brought home to any of the appellants.

28. In the result, Criminal Appeals Nos. 231 and 234 of 1978 are allowed and the orders of conviction and sentences passed against the ten appellants in Criminal Appeal No. 231 of 1978 and two appellants in Criminal Appeal No. 234 of-1978 are set aside. Criminal Appeal No. 233 of 1978 is allowed in part. The order of conviction, and sentences passed against the appellants Kedar Ghadei and Sananda Padhan is set aside. The order of conviction passed against the appellant Pari Sahu for the offence of murder by the application of Section 34 of the Code is set aside and in lieu thereof, he is convicted under Section 302 of the Code and is sentenced thereunder to undergo imprisonment for life. The appellants in custody who have been acquitted by us are to be set at liberty forthwith.

P.K. Mohanti, J.

29. I agree.


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