Akshya Kumar Dhal and Others vs The State of Orissa

K.B. Panda, J.—Criminal Appeal No. 182 of 1974 and Criminal Appeal No. 186 of 1974 arise out of the judgment in Session Trial No. 72 (S-B) of 1973 passed by the Sessions Judge, Sambalpur-Sundargarh on 28-8-1974 wherein 19 accused persons (the same order is followed in these appeals) were facing trial under various sections of the Indian Penal Code such as 384. 302/332/225, 114, 148, 147 and 149. In Criminal Appeal No. 182 of 1974 here are three Appellants, namely Akshya, Dasarathi and Sudhir are respectively accused Nos. 1, 4 and 8 in the lower Court. The rest 16 are the Appellants in Criminal Appeal No. 186 of 1974. All the accused Appellants excepting Balaram (A. 2) have been convicted u/s 332/149 and sentenced to undergo R.I. for one year on that Court. Besides, all the Appellants Nos. 1, 2, 5, 6, 7, 8 and 18 have been convicted u/s 304/149 and sentenced to undergo R.I. for 5 years. Appellant No. 2 has been convicted u/s 304/114 and sentenced to undergo R.I. for 3 years while he has also been convicted u/s 332/114 and sentenced to undergo R.I. for six months. The two sentences have been directed to run concurrently. Some of the Appellants are convicted u/s 332/149 have undergone their full terms of imprisonment. Both the appeals were heard analogously and this common judgment will dispose of both the appeals.

Briefly the prosecution case is thus: On 10-7-1972 p.w. 8, the A.S.I of Police attached to Naikula P.S., got information from p. ws. 9 and 13, the two Forest Guards, that three stolen logs bad been kept concealed in the threshing floor of accused Balaram (A. 2) at his village Gogua. At that time the officer-in-charge of the Naikula P.S. (p.w.1) was absent. Consequently p.w. 8 registered a case (P.S. Case No. 26/72) and took up preliminary investigation. He proceeded to the threshing floor of accused Balaram and in fact found three logs lying there. Thereafter he went to Dahikhia which is a hamlet of village Gogua. There he found Balaram and so he arrested him, put handcuffs, put a rope round his waist and brought him to his threshing floor. P.w. 1 the officer-in-charge of Naikula P.S. arrived there at about 10-30 A.M. and took over investigation of the case from p.w. 8.

It is alleged by the prosecution that this action of p.w. 9 created a sensation in the village which attracted about 200 to 300 people. It is also alleged that some of them had deadly weapons like axe and lathi. They surrounded the police party and the forest staff. It is further alleged that at the instigation of the arrested accused Balaram the mob attacked the police party and the forest staff as a result of which Dambarudhar Padhan, the Forester, was severely injured and p. ws. 1, 8, 10, 11, and 12 who are police people and p. ws. 9 and 13 who are forest people received injuries. Initially there were other allegations against the accused persons such as attempt of unlawful rescue of Balaram from police custody, excreting documents from p. ws. 9 and 13 that they had smuggled the legs in to the threshing floor of Balaram and some attempt to snatch away the official documents and cash from p. ws. 9 and 13. But the learned Court below did not believe that aspect of the prosecution case and so need not be given in detail. Some-how p. ws. 1 and 8 managed to escape from the place and on the same day at 3 P.M.. p.w. 1 himself draw up a plain paper F.I.R. (Ext. 1) at Gogua. The next day on 11-7-1972 p.w. 8 drew up the formal F.I.R. (Ext. 1/1). Be it stated here that Dambarudhar Padhan, Forester, who had been severely injured by certain members of the unlawful assembly, succumbed to his injuries at Deogarh hospital the next day at 5.15 A.M. on 11-7-1972. The Circle Inspector, p.w. 14 got information of this incident at Deogarh on 10-7-1972 and reached the place at 7-30 P.M. on 10-7-1972. He took up the charge of investigation of the case from p.w. 1 and on close of the investigation submitted charge-sheet as against 26 accused persons on 21-8-1972. The committing Magistrate discharged 4 and the learned Sessions Judge at the time of framing of the charge discharged 3 more. Thus 19 faced trial with the result is already indicated.

Generally the plea is one of denial. Yet there are certain special pleas taken by some individual Appellants. Particularly Narottam Biswal (A. 16), Lakshmidhar Seth (A. 5). Kartik Sahu (A. 6). Jogi Behera (A. 14), Gobardhan Sahu (A.13), Parfulla Sahu (A. 19). Kunjabehari Naik (A. 10) and Sudhir Sahu (A. 8) have taken the plea of alibi. Nirmal Sahu (A.18) claimed the stolen three logs lying in the threshing floor of Balaram (A 2) to be belonging to him. Balaram himself took the plea that he had not instigated the crowd but had appealed to them to remain calm and peaceful. His further case is that he was arrested by p. ws. 8 on 10.7.1972, made to march with handcuffs on his hands to his threshing floor on the village road; p.w. 1 who met him on the way taunted him saying to realise the power of the police; at his threshing floor he was all along under the custody of the police constables; even though accused Nirmal Sahu claimed the three logs lying in the threshing floor to be his, yet he was not released; later the constables brought him to Bemur and from that place again took to Gogua at the instance of p.w. 1 and that finally being sent for by p.w. 14 he was taken to him in the same condition under police custody.

Appellant Nirmal Sahu (A. 18) stated that the logs were his which had been stolen from his area about a fortnight before the occurrence by p. ws. 9 and 13 and put in the threshing floor of Balaram to foist a false case against him. He was asked to become a prosecution witness and as he did not agree to do so he was assaulted and falsely implicated in this case. Some of the Appellants took the plea that although they were at the scene of occurrence yet they had not taken any part in any overt act.

The prosecution examined 14 witnesses and the defence 12. Out of the witnesses p.w. 1 is the officer-in-charge of Naikula P.S., p.w. 2 is sale independent eye witness to the occurrence. p.w. 3 is the lady doctor who examined the injured p. ws. 1, 8, 9, and 13 and held the post mortem over the dead body of Damburdhar. P. ws. 4, 5,6 and 7 are formal seizure witnesses. P.w. 8 is the A.S.I. attached to Naikula P.S.. P. ws. 9 and 13 are the two Forest Guards. P. ws 10, 11 and 12 are the three constables present at the time of occurrence. P.w. 14, as already said, is the Circle Inspector and the investigating officer of the case. So far the d. ws. are concerned d. ws. 1 and 2 are accused 2 and 18 respectively. Some of the d. ws. have deposed to the alibi taken by some of the Appellants. D.w.11 is material in the sense that he is the sarpanch of the village and jimador of the logs and an eye witness to the occurrence.

Out of the several allegations of the prosecution the learned lower Court, on the basis of the evidence, held that many villagers gathered as Appellant No. 2 was handcuffed and brought to his threshing floor and kept in that condition for a sufficiently long time. On Appellant Balaram appealing to the villagers to take revenge for the illegal action as to how he was being maltreated, the mode became unlawful developing the common object of rescuing him from police custody and to deter the public servants from the lawful discharge of their duties. In the process the mob inflicted injuries on Dambarudhar resulting in his death the next day. Be it stated here that the learned lower Court dis-believed the story of extorting documents and money from the two forest guards, namely; p. ws. 9 and 13 demanding key of the handcuff from p.w. 1 and the theft of the three logs found in the threshing floor of Balaram.

Regarding the charge u/s 304 Part II read with Section 149, Indian Penal Code there is no dispute over the fact that due to the assaults on the deceased on the alleged day and time he succumbed to the injuries the next day. P.w. 3 also granted certificates regarding the injuries on p. ws. 1, 8, 9 and 13. She has also held the post-mortem over the dead body. These injuries are not challenged. Thus the sole point for consideration is if there is unimpeachable evidence against each of the Appellants that each of them had taken some part in the overt act as members of the unlawful assembly. Be it stated here that the assembly was not unlawful from its inception. As the evidence stands the first arrest of accused No. 2 was at about 8. 30 a. m. When he was brought to Gogua and the investigation was taken over by p.w. 1 it was 10. 30 a.m. Even by that time the assembly had not become unlawful nor till p. m. It is very clear from the F.I.R. itself the material portion of which runs thus:

I Shri Sushila Chandra Patnaik, O.I.C., Naikul P.S. do hereby by the plain paper F.I.R. at village Gogua to-day state on 10-7-1972 at 3 p. m. that to-day morning at 7.30 a. m. case u/s 379, Indian Penal Code was registered on the report of one Daitari Rana, Forest Guard and A.S.I.B.B. Mohanty took up investigation during my absence while investigating into the case at Gogua by A.S.I., B.B. Mohanty C/1132 B.B. Behera, C/113 D. Sahu, C/646 B.B. Naik and C/777 A. Sahu at 10. 30 a. m. I arrived thereon getting information my way back from Palsama village to Naikul. I found A.S.I.B.B. Mohanty seized the stolen logs as identified by Forest Guard Daitari Rana, Pandab Kumar Samal and Forester Dambarudhar Padhan, many villagers came in a body after forming an unlawful assembly being armed with deadly weapons like axe, lathi stone etc., and surrounded them at the threshing floor of Balaram Sahu with the instigation of said Balaram Sahu while he was under arrest. I took charge of the investigation from A.S.I.B.B. Mohanty at the spot and continued. At about 1 p. m. suddenly some of the accused persons namely Narottam Sahu, Dasarathi, Jadumani Behera, Ghana Shyam Pradhan, Binod Behari Sahu, Gobardhan Sahoo Laxmidhar Sahu, Sudhir Kumar Sahoo, Basanta Behera, Debaraja Sahu, Bhubaneswar Sahu, Akshya Kumar Dhal Pabitra Mohan Samal, Nirmal Sahu and 16 others started assaulting the Forest Guards and Forester, inspite of protest of police staff.

In it the reason is not given as to why the quiet mob that had already gathered and, according to the F.I.R. with deadly weapons suddenly became violent. In the statement of Dasarathi (A. 4) it is stated thus:

Q. Have you anything to say?

A. 1 had followed Balaram Sahu when he was taken to his threshing floor with handcuffs. There Nirmal Sahu claimed that the 3 logs were his. P. ws. 9 and 13 admitted that they had planted those trees in the threshing floor to implicate Balaram Sahu. The voluntarily wrote out two documents. Thereafter Narottam Sahu asked p.w. 1 if that was the way in which he was administering justice. P.w. 1 gave a blow on Narottam Sahu''s neck and he fell down. Thereafter I left the place. After I was arrested Police first requested me and then tortured me to be a prosecution witness. Because I refused to be a prosecution witness, they have falsely implicated me.

This is the defence version while the prosecution version is that arrested Balaram raised his two hands which had been handcuffed and instigated the mob saying "you see how I am being passed and maltreated, you take revenge". It is in the evidence of p.w. 2, one disinterested witness that from the beginning accused No. 2 Balaram was pacifying the mob saying not to get irritated and that if he was not released there, he would be finally released in the Court. Admittedly the investigation had been taken over by p.w. 1 by 10. 30 a. m. and by then the seizure of the three logs had already been done. The jima of the logs had been given to d.w.11. Thus one fails to understand what other investigations the two police officers namely, p. ws. 1 and 8 were conducting with the help of the constables such as p. ws. 10, 11 and 12 in connection with this simple forest case It is clear in the F.I.R. that at 1 p. m the armed mob suddenly became violent. Absolutely no reason is there why the mob that had assembled from at least 9 a. m. after four hours, as if in a mad frenzy would become violent. Out of the two explanations given one by the prosecution and the other by the accused the latter appears more reasonable inasmuch as it is more consistent with the broad probabilities as would be discussed while dealing with the conviction of the Appellants u/s 332/149, Indian Penal Code. However in view of the death of Dambarudhar as a result of the injuries and in view of the injuries as deposed to by p.w. 3 there can be no doubt that some of the villagers who had gathered to witness how the matter was shaping became violent and inflicted injuries occasioning death of Dambarudhar and therefore the conviction u/s 304 Part II read with Section 149, can not be assailed unless there is evidence to show that some of the Appellants had not taken any part in any over act.

The learned lower Court has dealt with the case of individual accused and the part, played by each of them in the assaults on the police and the forest people. Excepting in case of Dasara the there is hardly any scope for interference as the evidence being consistent and corroborative too. So far as Dasarthi Sahu (A. 4) is concerned who was a boy of 19 years at the time of occurrence, the part attributed to him is chasing Dambarudhar. This is not in the F.I.R. Also that is not in the statement of p.w. 1 before the Circle Inspector, p.w. 14. It is only at the stage of trial that this part played by Appellant Dasarthi has been introduced. The prosecution case is that Dambarudhar while trying to escape from the spot and jumping over a fence was attacked. If so many people are likely to have chased him. In that context absence of the role of Dasarthi in chasing Dambrudhar by p.w. 1 in the F.I.R. or before the Investigating officer entitles him at least to the benefit of doubt. Accordingly I would interfere only with the conviction of Dasarthi u/s 304 Part II read with section Indian penal code secondly the case of Balaram (A. 3) who has been convicted u/s 304 Part II read with Section 114 and sentenced to three years R.I. also stands in a different footing. Evidently he had been arrested, handcuffed and detained. In that situation possibly he could not have taken any part in any overt act. That is why he has been attributed the role of instigating the mob to take resort to violence and convicted u/s 304/114. When I have already held that the prosecution was shy of divulging the common cause that turned a quiet mob into a violent mob and as I have held that the defence suggestion is more plausible, I would discard the theory that on Balaram raising his hands with handcuffs and appealing to the mob, it became violent Balaram was in that condition from 8.30 a.m. till late in the evening when the Circle Inspector, p.w. 14, took over charge of the case at about 61/2 p. m. This story of Balaram''s raising hands and instigating the mob is also significantly absent in the F.I.R. itself. If really that triggered the violent action that followed it is unimaginable how a trained police officer could have afforded to omit it from the F.I.R. lodged by him. In the result. Therefore I could also accept the appeal of Balaram and set aside his conviction u/s 304/114 and acquit him of that charge.

Now I will advert to the conviction u/s 332/149 332/114. Section 332, Indian Penal Code provides:

Whoever voluntarily causes hurt to any person being a public servant in the discharge of his duty as such public servant, or with intent to prevent or deter that person or any other public servant from dis-charging his duty as such public servant, or in consequence of any thing done or attempt to be done by that person in the lawful discharge of his duty as such public servant, shall be published with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

In this case the specific charge in this regard is thus:

Fourthly: That you, on or about same day, time and place were members of an unlawful assembly in prosecution of the common object of which; viz. (1) committing murder of Dambarudhar Pradhan (2) causing hurt to S.I. Susil Patnaik, A.S.I. Banbehari Mohanty, Constables 113; 777 and 1132 and Forest Guards Daitari Rana, Pandaba Samal, Pranabandhu Garia while they were on duty, (3) extorting Rs. 60/ - and a document from Daitary Rana and Pandaba Samal and (4) rescuing Balaram Sahu from lawful custody, from amongst you, Kunjabehari Naik, Bijuli Behera, Daitari Kumbhar, Gobardhan Sahu, Jogi Behera, Dirba Pan, Narottam Biswal, Nisakar Sahu, Nirmal Sahu and Parafulla Sahu committed murder of Dambarudhar Pradhan and all of you except Balaram Sahu caused hurt to the five police personal and three forest guards and you all rescued Balaram Sahu from lawful custody and you all are thereby u/s 149 Indian Penal Code guilty of causing the said offences punishable u/s 302/332/225 Indian Penal Code and within my cognizance.

There is no other specific charge u/s 332/149, Indian Penal Code. This charge both on fact as well as on law is vulnerable. What was the specific object of the unlawful assembly has become manifold. Whether the intention was to prevent or deter the police or the forest officers from discharging their duties as such public servants has not been made explicit.

There was just an allegation of theft of three timbers from the reserve forest by Balaram. This is an offence coming u/s 26 of the Indian Forest Act and the punishment to be awarded is a term which !nay extend to six months, or with fine which may extend to five hundred rupees, or with both, in addition to such compensation for damage done to the forest as the convicting Court may direct to be paid. u/s 68 of the Indian Forest Act such offences coming u/s 26 have been made compoundable. Section 68 of the Indian Forest Act runs thus:

"Power to compound offences" (1) The State Government may, by notification in the official Gazette, empower a Forest Officer

(a) to accept from any person against whom a reasonable suspicion exists that he has committed any forest offences, other than an offence specified in Section 62 or Section 63, assume of money by way of compensation for the offence which such person is suspected to have committed, and

(b) When any property has been seized as liable to confiscation, to release the same on payment of the value thereof as estimated by such officer.

(2) On the payment of such sum of money, or such value, or both, as the case may be, to such officer, the suspected person, if in custody, shall be discharged, the property, if any seized shall be released, and no further proceedings shall be taken against such person or property.

(3) A Forest Officer shall not be empowered under this section unless he is a Forests Officer of a rank not inferior to that of Ranger and is in receipt of a monthly salary amounting to at least one hundred rupees, and the sum of money accepted as compensation under Clause (a) of Sub-section (1) shall in no case exceed the sum of fifty rupees.

Scope-Forest Officers of the rank of Ranger or above can only be invested with power to compound offences.

The two sections namely 62 and 63 which have been kept out of the ambit of the section are for offences of wrongful seizures and for counterfeiting or defacing marks on trees and timber and for altering boundary marks. u/s 62 Forest-Officers or,. Police Officers, ate liable to punishment if they vexatiously and unnecessarily seize any property on some pretence. Not only the forest offence has been made compoundable u/s 68 but for vexatious and unnecessary seizure the forest officer or police officer has been made liable u/s 62 of the Indian Forest Act. Regard being had to the punishment provided u/s 26, according to Schedule 2 of the'' Code of Criminal Procedure that is an offence in which there shall not be any warrant, it is a commons case, bailable and compoundable under the specific provisions of the Indian Forest Act itself and triable by any Magistrate. The evidence is clear that the three logs alleged to have been stolen from the reserve forest, though found in the threshing floor of Balaram (A. 2), were claimed by accused Nirmal Sahu (A. 18) to be his, they are also claimed by the defence to be old logs and not recently removed from the reserve forest. The seizure list Ext. 20/1 supports the defence in that logs were dry and dressed. The forest people themselves said that though old they were only 9 days old and there is no evidence to substantiate the same. Be that as it may, this was not such a serious forest offence- for which accused Balaram should be handcuffed in a hamlet of Gogua, roped and marched in the streets of Gogua to his threshing floor. Further after seizure of the logs and the claim of Nirmal Sahu (A. 18) there was nothing for investigation of the case. Admittedly p.w. 1 had taken over charge of the investigation at 10. 30 a. m. by that time the search and seizure were all over, even otherwise it was a bailable offence. So if not the Forester, the A.S.I. or the S.I. p. ws. 8 and 1 respectively should have enlarged Balaram on bail. But instead of doing so both the police officers arrested Balaram and not being satisfied with that put handcuffs, put a rope around his waist as if he was a dangerous criminal paraded him in the streets of Gogua to his threshing floor and there kept him in- that condition for at least four and half hours when the hostile mob attacked the police and the forest people. The Indian Forest Act does not view the instant case to be a serious one for which the police would have gone to the length of putting handcuffs and detaining Balaram so long in spite of the claim by Nirmal Sahu (A. 18) that the logs were his. Section 46, Code of Criminal Procedure provides how arrests are to be made. It lays down thus:

(1)

In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested unless there be a submission to the custody by word or action.

(2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.

(3) Nothing in this section gives a right to cause the death of a person who is not accused of imprisonment of life.

In this case there is no evidence that Balaram was resisting or evading arrest and therefore mere touch of his person was sufficient to constitute arrest. Further it is in consonance with the Orissa Police Manual, Vol. I Rule 241(b) which provides thus:

In bailable cases prisoners shall not be handcuffed unless they are violent or have attempted to escape. Similarly, they shall not be handcuffed enroute, except in emergencies as permitted in P.M. Rule 240(b) and (1) or unless they become violent or attempt to escape. In such cases the order to apply handcuffs or a rope shall be given by the senior officer who shall, if at a police station, enter that reasons in the station diary and in the certificate in P.M. Form No. 43 or, if in the interior or en route, shall report the facts to the first police station or Court at which he arrives.

Even for non-bailable offences, the same rule under Clause (c) provides that the amount of restraint necessary should be at the discretion of the officer and in certain circumstances the use of handcuffs may not be necessary unless the prisoner had attempted to escape, or is a powerful man in custody for a crime of violence, or is notorious, or disposed to give trouble, or if the journey is lone, or the number of prisoners large. Here none of the grounds are present. Therefore, there was no justification whatsoever for putting handcuffs on Balaram and that too from 8. 30 a. m. till the attack was made on the police and the forest party at about 2 p. m. It may be mentioned here that the three police constables, namely p. ws. 10, 11 and 12 who ale said to have assisted p.w. 8 in the detection of the theft of logs have not been issued any command certificate as provided under Rule 90 of the Orissa Police Manual, Vol. 1. The statement of p.w. 8 who arrested Balaram is thus:

I examined forester Dambarudhar Pradhan and forest guards Daitari Rana and Pandaba Samal and then arrested Balaram Sahu and put him under handcuffs.

From this it is evident that at the time of his arrest Balaram was not disclosed the reasons therefor. The action of the A.S.I., p.w. 8, appears to have been ratified by his boss p.w. 1 the S.I. He even did not release Balaram from the handcuffs and allowed him to remain in that humiliating condition before the villagers who, according to him (p.w.1), had gathered in large numbers with lethal weapons. The purpose of stating all this is to show how the police officers behaved in a manner contrary to rules, there by not only guilty of violating the rules but by their own conduct infuriated the mob and were responsible for the untoward developments resulting in an attack an them and the forest party involving the death of one. The question, therefore, for consideration is if the police was at that time doing any duty as such public servant sa that they were deterred from doing it by the action of the Appellants. Probably at the inception it might be said that the police rightly or wrongly was discharging an official duty particularly more so, when an information was given by the forest people that there was theft of logs from reserve forest. But that by itself will not offer them a'' handle to take the plea'' that they'' were discharging the duty for an indefinite length of time. Examination of certain witnesses after which the arrest of Balaram followed salgure of the logs and giving jimmanama to d.w.11 were all that were necessary in this case and with that the investigation was over and there was no further official duty to discharge. Even after p.w. 1 took over charge of- further investigation if any, it would have been, in ordinary course, over by 11. 00 a. m. at the latest. According to the F. L R the trouble: arose at 1. 00 p. m. There is no evidence as to, what the'' police people were doing till that time. In this background the defence suggestion that Balaram was being taunted to realise the power of, the. police is something not very strange. In, this context Section 62 of the Indian Forest Act need be quoted:

Punishment for wrongful seizure.-Any Forest Officer or Police Officer who vexatiously and unnecessarily seizes any property pretence of seizing property liable to confiscation under this Act shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with, both.

Purposely the legislature has made this provision so that the power given to the forest officers and the police officers under the Act is not abused or misused. In the instant case the charge of theft of logs has failed, as it was bound to. Even at the time of seizure accused No. 18 had claimed the three logs to be his and that they were old sized logs. In fine, therefore, I am led to hold that the police and the forest officers, namely, p. ws. 1, 8, 9 to 13 were not discharging any official duty as public servants and therefore if they were prevented in any way by any person, it cannot be said that these persons thereby became liable u/s 332, Indian Penal Code. Consequently I will set aside the conviction and sentence of all the Appellants u/s 332/149, Indian penal Code and that of Balaram u/s 332/114, Indian Penal Code.

In the result, both the appeals are allowed in part. The conviction of Appellants Norottam Sahu (A. 3). Basanta Behera (A 9), Kunjabehari Naik (A. 10), Bijuli Behera (A. 11), Daitari Kumbhar (A. 12), Jogi Behera (A. 14), Diraba Pan (A. 15), Narottam Biswal (A. 16) and Nisakar Sahu (A. 17.) u/s 304 Part II read with Section 149 stands, but the sentence reduced from 5 years to 4 years (Four years R. I). So far as Gobardhan Sahu (A. 13) and Prafulla Sahu (A. 19) are concerned, in view of the fact that they were only 21 years old at the time of occurrence, though the conviction u/s 304/149 stands yet the sentence is reduced to two years R.I. and the period of imprisonment already under gone during trial or after conviction will be set off. The conviction and sentence of Balaram Sahu (A. 2) u/s 304 part II read with Section 114 is set aside and so also u/s 332/114. The conviction and sentence of all the Appellants excepting Appellants Balaram (A. 2), Gobardhan (A. 13) and Nisakar (A. 17) u/s 332/149 is set aside. Dasarthi Sahu (A. 4) is acquitted of both the charges and his conviction and sentence are set aside. Appellants Narottam Sahu (A. 3). Basanta Behera (A. 9), Kunjabehari Naik (A. 10), Bijuli Behera (A. 11), Daitari Kumbhar (A 12), Gobardhan Sahu (A. 13), Hogi Behera (A. 14). Diraba Pan (A. 15), Narottam Biswal (A. 16). Nisakar Sahu (A. 17) and Prafulla Sahu (A. 19) are to surrender to under go the unexpired period of imprisonments. Others on bail are released from their bail bonds.

Before close of the judgment I am led to observe that, here is a case where a forester has been killed apparently in connection with the detection of a forest case. This is unfortunate indeed. But the high-handed action of the police such as p. ws. 1 and 8 probably with the connivance of the forest staff also created an undesirable situation that excited the mob frenzy, to become violent resultant in injuries on some officers and death of another. Had they acted according to rules or even tactfully such a situation would not have arisen. From a distance it may appear as though innocent public servants have become victim of anger of the public while discharging their duties but in fact it is not, so as discussed in paragraph six above.

They have fallen a pray to their own machinations. It is doubtful if they have been more sinned against their sinning.

A copy of this judgment be sent to the Secretary to the Home Department, Government of Orissa to be apprised of the real situation that would bring into focus how the spirit of police public co-operation movement is reflected in action.