Krushna Ch. Behera vs State of Orissa

S.K. Sahoo, J. - The Appellants in Criminal Appeal No. 279 of 2007 Krushna Chandra Behera (A-1), Bunu @ Kunja Bihari Nayak (A-2), Endu @ Ramesh Pani (A-3), Masani @Satyabrata Nayak (A-4), Sesa @ Seshadev Gochhi (A-5), Nanda @ Basanta Gochhi (A-6), Babu @ Sarat Kumar Gochhi (A-7), Surendra Atabudhi (A-8), Laxmidhar Gochhi (A-9), Pradeep Kumar Sahoo (A-10) & Golakha Sahoo (A-11 ) along with one Aparti Rout faced trial in the Court of Learned Addl. Sessions Judge (F.T.C.), Athagarh in Sessions Trial No. 81 of 2004 for offences punishable under Sections 147, 148, 325/149, 302/149 & 307/149 Indian Penal Code.

The Learned Trial Court vide impugned Judgment & Order Dated 11.05.2007 acquitted the co-accused Aparti Rout of all the charges but found the Appellants were guilty under Sections 147, 148, 324/149 & 302/149 Indian Penal Code & accordingly convicted them of such offences & sentenced each of them to undergo RI for one year under Section 147 IPC., RI for one year each under Section 148 I.P.C., RI for one year each under Section 324/149 IPC & to undergo imprisonment for life each & to pay a fine of Rs.2,000/- each, in default of payment of fine, to undergo R.I. for six months under Section 302/149 I.PC. All the substantive sentences passed against the Appellants were directed to run concurrently.

Since the Appellant No.6 Nanda @ Basanta Gochhi in Criminal Appeal No.279 of 2007 has subsequently filed Criminal Appeal No.306 of 2007 challenging the very same impugned Judgment & order of conviction, we hold that the subsequent appeal filed by him is not maintainable & accordingly the same is disposed of.

The First Information Report (Ext. 11) was lodged by Manoj Mohapatra @ Rana (PW.10) before the Officer-in-charge of Baramba Police Station in the district of Cuttack on 20.11.2002 at 7.30 p.m.

The prosecution case as per FIR is that on 20.11.2002 during the afternoon at about 4.00 p.m. while the informant who belonged to village Sasanga had been to the village square to bring tiffin, the Appellants who are his co-villagers formed an unlawful assembly & being armed with lathi, knife, farsa, tangia & iron rod abused him in filthy language.

As per FIR, the sequence of assault on different injured persons & the deceased are as follows:

The Appellants No.10 & 11 assaulted the informant (P W.10) by means of iron rod & lathi on his head & left thigh for which he sustained bleeding injury on his head & swelling on the left thigh.

Hearing the painful shriek of PW 10, the co-villagers namely, Tutu @ Surendra Rana (hereafter ''the deceased'') Gadadhar Mohapatra (PW.2), Madan Rana (P.W.3), Kalia Rana (PW.4), Tirtha Rana (PW.8), Kartika Rana, & mother of the informant namely, Nima Rana arrived at the spot.

P. W2 was assaulted by the Appellants Nos. 2, 3, 5 & 6 by lathi for which he sustained injuries on his head, right hand, left elbow & right leg.

P. W8 was assaulted by Appellants Nos.1 & 4 by lathi for which he sustained injuries on his right hand. .

One Kartika Rana was assaulted by Appellants Nos. 4 & 10 by means of lathi for which he sustained injury on the right hand.

PW.3 was assaulted by Appellants Nos.6, 7, 8 & 9 by lathi & knife for which he sustained injuries on his hands.

The deceased was assaulted by Appellants Nos.1, 5, 9 & 11 so also by others by means of lathi, farsa & tangia, as a result of which he sustained bleeding injuries on his head & right hand.

PW. 4 was assaulted by Appellants Nos.3, 6, 8 & 9 by means of lathi & tangia for which he sustained head injuries & also injuries on his back & hands.

The mother of the informant, namely, Nima Rana was assaulted on her left hand by Appellant No.8 with a lathi for which she also sustained injury. The Appellants also threatened the persons present at the spot.

On the basis of such FIR, Baramba P.S. Case No.161 of 2002 dated 20.11.2002 was registered under Sections 147/148/294/307/325/341/324/506 read with Section 149 IPC.

P.W17 Henery Kulu, who was attached to Baramba Police Station as Sub-Inspector of Police was entrusted by the Officer-in-Charge to investigate the case & accordingly P. W17 took up investigation, examined the witnesses, issued injury requisitions in respect of the injured persons, visited the spot & prepared spot map Ext.18, seized one bamboo lathi & wooden lathi under seizure list Ext. 8. On 24.11.2002 PW.17 received intimation regarding the death of the deceased while undergoing treatment at S.C.B. Medical College & Hospital.

P.W16 Benudhar Baral who was the ASI of Police attached to Mangalabag Police Station was directed by Inspector-in-charge, Mangalabag Police Station to cause inquiry into Mangalabag PS. U.D. Case No. 963 of 2002 dated 24.11.2002 which was instituted on receipt of a causality memo from S.C.B. Medical College & Hospital regarding the death of the deceased. P.W.16 held inquest over the dead body in presence of the witnesses & prepared inquest report Ext.2/1. He sent the dead body for post mortem examination. He also seized the wearing apparels of the deceased along with command certificate, sample blood & nail clippings of the deceased on production by the constable after post mortem examination under seizure list Ext.17. He received the post mortem report & ultimately handed over the U.D. case records along with the inquest report, post mortem report & exhibits to the Constable to submit the same in connection with Baramba P.S. Case No.161 of 2002.

When the case turned to one under Section 302 I.P.C., P.W.17 handed over the charge for investigation to the Officer-in-charge of Baramba Police Station for further investigation of the case who took steps to send the exhibits to SFSL, Rasulgarh for chemical examination through J.M.F.C Baramba & after completion of investigation submitted charge sheet.

The defence plea of the Appellants except A-2 Kunja Bihari Nayak & A-10 Pradeep Kumar Sahoo is one of denial & it is pleaded that due to previous enmity, they have been falsely entangled in the case. The defence plea of Appellants Nos. 2 & 10 is that the prosecution party members including the deceased belonged to Mali (gardener) Community & the Appellants belonged to Chasa (peasant) Community of village Sasanga & there was previous enmity between Chasa Sahi & Mali Sahi people relating to the possession of Debater land situated in their village Sasanga. It is further pleaded that two to three days prior to the occurrence, shops of some of the Appellants which were situated on the Debottar land were gutted by fire & when those Appellants took steps for reconstruction of their shops, on the date of occurrence the informant party members objected to such construction & created disturbance in the shop of Appellant No.2 who had a cement shop in the village square. The deceased & others came to the shop of Appellant No.2 being armed with deadly weapons, abused him & assaulted him & at that point of time, seeing Appellant No.5 in the tiffin shop of D.W.2 Bimal Sahu, the deceased & others chased Appellant No.5 to assault him & while so chasing, the head of the deceased dashed against a wooden beam extended from the roof of the shop of D.W.2 as a result of which the deceased fell down on receiving bleeding injuries on his head & became unconscious. Both of them further pleaded that due to previous enmity between the parties & being instigated by one Anand Dash, they have been falsely entangled in the crime & prior to the occurrence their shop rooms were set on fire & on the date of occurrence, the deceased Tutu Rana, informant Manoj Rana (PW.10) & others assaulted them & thereafter foisted a false case.

In order to prove its case, the prosecution examined seventeen witnesses.

PW.1 Dr. Manoj Kumar Jena was the Asst. Professor, FMT, S.C.B. Medical College & Hospital, Cuttack who conducted post mortem examination over the cadaver of the deceased on 24.1.2002 & submitted his report vide Ext.1.

P.W.2 Gadadhar Mohapatra, PW. 3 Madan Rana, PW.4 Kalia Rana & P.W.5 Pradeep Mohapatra, PW.7 Prasant Rana & PW.8 Tirthabasi Rana are the injured eye witnesses.

PW.6 Satyabadi Rana is an eye witness to the occurrence & also a witness to the seizure of two lathies from the spot under seizure list Ext.8.

P.W.9 Dibakar Mohapatra is an injured eye witness & he is a witness of seizure of lathies under seizure list Ext.8.

PW.10 Manoj Mohapatra @ Rana is the informant in the case who is also an injured eye witness to the occurrence.

PW.11 Swarnalata Mohapatra is the wife of the deceased who stated to have heard about the occurrence from her father-in-law & mother-in-law.

PW.12 Jagannath Rana is the scriber of the FIR lodged by PW.10.

PW.13 Rabinarayan Mohapatra was the Asst. Surgeon of Baramba Area Hospital who on police requisition examined number of injured persons including the deceased on 20.11.4002 & proved their injury reports.

PW.14 Kamadev Sahu did not support the prosecution case for which he was declared hostile & cross examined.

P.W.15 Dr. Pradip Kumar Acharya was the Asst. Surgeon of Neuro Surgery Department at S.C.B. Medical College & Hospital who examined the deceased on 21.11.2002 & operated the brain of the deceased. He proved the bed head ticket Ext.16.

PW.16 Benudhar Baral was the ASI of Police attached to Mangalabag Police Station who conducted inquiry of Managalabag PS.U.D. Case No. 963 of 2002.

P.W.17 Henry, Kulu was the Sub-Inspector of Police attached to Baramba Police Station who was one of the Investigating Officers.

The prosecution exhibited twenty one documents & proved two material objects. Ext.1 is the post mortem report, Ext.2/1 is the inquest report Ext.3/1 is the dead body challan, Exts. A/1, 5/1,6/1, 7/1,9/1, 10/1, 12/1, 13, 14, 15 & 21 are the injury reports of the injured persons, Ext.8 is the seizure list, Ext.11 is the FIR, Ext.16 is the bed head ticket, Ext.17 is the seizure list, Ext. 1.8 is the spot map, Ext.19 is the copy of the forwarding report, Ext.20 is the report of the SFSL, Rasulgarh.

M.O.I & M.O.II are lathies.

In support of the defence plea, the Appellants examined eight witnesses.

D.W.1 Dr. Niranjan Nanda was the Asst. Surgeon in the Department of Neuro Surgery at S.C.B. Medical College & Hospital, Cuttack who assisted P.W.15 in the Neuro Surgery Operation of the deceased on 21.11.2002.

D.W.2 Bimal Sahoo, D.W.4 Basanta Kumar Sahoo, D.W.5 Ajaya Kumar Behera, D.W.6 Kunja Bihari Nayak, D.W. 7 Seshadev Gochhi & D.W.8 Pradeep Kumar Rout stated about the occurrence as eye witnesses supporting the defence plea.

D.W.3 Achhuta Nanda Baliarsingh was the Scientific Officer, DFSL, Bhubaneswar who proved the chemical examination report Ext.20.

The defence also exhibited two documents. Ext.A/1 is the certified copy of the injury report of Appellant No.2 & Ext.B is the certified copy of the injury report of Appellant No.5.

Now it is to be seen how far the prosecution has established that the death of the deceased Tutu @ Surendra Kumar Mohapatra was homicidal in nature. In order to establish such aspects, apart from the inquest report (Ext.2/1), the prosecution has examined the doctor (P.W.1) who conducted autopsy over the dead body on 24.01.2002 at S.C.B. Medical College & Hospital, Cuttack & found the following injuries:

External injury:-

(i) Stitched lacerated wound with five numbers nylon stitches of 6 c.m. long present over the vertex of head 11 c.m. above nasion & 15 c.m. above the right ear.

(ii) A curved ''U'' shape stitched lacerated wound having nine black coloured stitches present right side fronto parietal area of head extending from a point 2.5 cm. above the medial end of right eye brow to a point 3 c.m. in front of right ear of length 21 c.m.

(iii) Partly healed abrasion of 7 c.m. x 4 c.m. present over the right tip of right shoulder joint.

Internal Injuries:-

On internal dissection of external injuries No.1 & 2, it was found to have involved the under surface of the scalp over the right fronto parieto temporal contused with infiltration of blood into it. The right temporalic muscle was contused, a burr hole surgical operation of size 1.5 c.m. diameter over the right parietal bone was noticed where two linear fractures were found extended over the frontal bone anteriorly & another one laterally & downward over the temporal bone; extradural haemorrhage of �" thickness, the size of 8 c.m. x 4 c.m. was present over the right temporal parietal area, that dura under the burr hole operation was repaired surgically with stitches & gel foam application over it. A thin layer of subdural haemorrhage was present diffusely over the whole of cerebrum. The tip of both frontal & left temporal lobe base was contused. After removal of the brain, the right orbital place was found fractured.

P.W.1 opined that all the injuries found in the dead body were ante mortem in nature. The external injuries No.1 & 2 & the corresponding internal injuries were caused by hard & blunt trauma to the head whereas external injury No.3 could have been caused by hard, blunt & rough contact. The external injuries No.1 & 2 & its internal injuries were opined to be fatal in ordinary course of nature. The death was due to craniocerebral injury. P.W.1 further opined that all the injuries combinedly were sufficient to cause death of a person in ordinary course of nature.

P.W. 1 further opined that the external injuries No.1 & 2 with its connected internal injuries are possible by a lathi blow or by the blunt side of the Farsa with considerable force. He proved the post-mortem report as Ext.1. The Learned Counsel for the Appellants Mr. Devashis Panda challenged the findings in the post-mortem report Ext.1 & submitted that the injuries have been accidentally caused to the deceased due to dash of his head against a wooden beam.

The doctor P.W.1 has been specifically asked by the defence in the cross examination about the possibility of the injuries on the deceased as per suggestion. The doctor has stated that though the injury No.2 is possible if a person was hit with a hard & blunt object i.e. dashing with a stony wall with sufficient force but injury No.1 is not possible in such situation or position. Thus the contentions of the Learned Counsel for the Appellants that the injuries on the deceased were caused due to his accidental dash against a wooden beam are not acceptable.

The Learned Counsel for the Appellants further submitted that the deceased was first treated at Baramba Area Hospital by doctor P.W.13 who noticed only one lacerated injury over the frontal area of scalp. He further contended that P.W.13 has specifically stated that he has not reflected in his report whether any injury was present on the vertex of the head of the deceased & further stated that had he noticed such injury, he would have reflected it in his report. Mr. Panda further contended that D.W.1 who assisted PW.15 for operating the deceased has stated that as per bed-head ticket, there was one internal injury corresponding to the fracture of right frontal bone with underline huge extradural hematoma & therefore the findings in the post-mortem report that there were two injuries on the head of the deceased, one over the vertex of the head & the other on the right side fronto parietal area are contradictory to the evidence of P.W13 & D.W.1 & therefore the injury on the vertex of the head cannot be stated to have been caused during the course of occurrence & since the death took place four days after the occurrence, the possibility of such injury on the vertex having caused subsequently cannot be ruled out.

Having carefully gone through the evidence of the doctors & the contentions raised by Mr. Panda, we are not able to accept such contentions. It is of course true that the doctor P W.13 first examined the deceased on the date of occurrence at 7.00 p.m. but it appears that within an hour the doctor examined as many as eleven injured persons of the case & he has stated that when he examined the deceased, the patient was semi-conscious, drowsy, not responding to call & vomiting for which he suspected that the patient must have internal injuries on his brain & accordingly referred him to S.C.B. Medical College & Hospital, Cuttack. When the doctor PW.13 seems to be in a hurry to send the patient to S.C.B. Medical College & Hospital, Cuttack because of his alarming condition & he had a long queue of patients to attend, we cannot give undue weight to the missing of the Injury on the vertex as the possibility of missing such injury in a haste cannot be ruled out. Similarly P.W.15 who had operated the brain of the deceased stated that during his examination, he found the patient to be in a very low condition & C.T. scan of the patient showed the right frontal extradural hematoma which needed operation & the patient had suffered other injury. He has further stated that as the patient was specifically referred to him for injuries on the brain, he had not gone to the other aspects of the injuries except operating the brain of the patient as he was in a dying condition. He has further stated that during operation of the brain, he found fracture of frontal bone & there was huge extradural hematoma. D.W.1 who assisted PW15 has stated that as the patient was referred to their department for operation of head injury, they have not diverted their attention to other injuries & after operation, the wound portion was stitched.

Thus we find that there are no such major discrepancies in the evidence of the doctors examined either by the side of the prosecution or by the side of the defence. We are of the view that the deceased had sustained two head injuries i.e. one over the vertex of the head & the other over right side fronto parietal area of head. Apart from these two injuries, he had also sustained an abrasion on the right shoulder joint.

The Learned Trial Court has discussed about the nature of death of the deceased with reference to the evidence of doctor PW.1 & post-mortem report Ext. 1 & came to hold that the death of the deceased was homicidal in nature.

After perusing the evidence on record, the post-mortem examination report Ext. 1 & the statement of PW.1 so also the statements of other doctors, we are of the view that there is no infirmity in the findings of the Learned Trial Court regarding the nature of death of the deceased to be homicidal in nature & accordingly we concur with such findings.

It is contended by the Learned Counsel for the Appellants Mr. Panda that an attempt has been made right from the beginning by the prosecution to implicate as many persons as possible from the rival camp. While drawing our attention to the FIR., it is contended that the informant has specified in the FIR as to which injured was assaulted by which accused & by what weapon which is not possible on his part to observe after receiving injuries himself first due to assault. The Learned Counsel for the State Mr. Zafarulla on the other hand submitted that the informant had sustained two simple injuries as per the evidence of the doctor PW.13 & therefore there would not have been any difficulty on his part to observe the assault on others. He further contended that since all the injured persons including the informant first went to Baramba Police Station, there must have been interaction between them & therefore the mention of details of the incident in the FIR. cannot be doubted.

The sequence of assault as indicated the FI.R. would indicate that the informant was first assaulted & then the others were assaulted. Out of the eleven Appellants, in the Fl. R., it is indicated that some of them have assaulted only one injured; some of them have assaulted two injured persons & some of them three. The specific assault against each of the Appellants as per FI.R. is indicated herein below:-

A-1 --

PW.8, deceased

A-2 --

P.W2

A-3 --

P.W2, P.W4

A-4 --

PW.8, Kartik Rana

A-5 --

PW2, deceased

A-6 --

P.W2, P.W.3, P.W.4

A-7 --

PW.3

A-8 --

P.W3, PW.4, Nima Rana

A-9 --

P.W3, PW4, deceased

A-10 --

PW10, Kartik Rana

A-11 --

P.W10, deceased

Perusing the FIR & the systematic manner in which each of the assault on the injured persons & the deceased has been described, we find much force in the contention of the Learned Counsel for the Appellants. It is very difficult to accept that P.W1 who himself was an injured & stated to have been assaulted on his head & left thigh by two Appellants while being gheraoed by other accused persons, would be in a position to mark all the assault on different injured persons by the Appellants so minutely that he would be in a position to narrate in the FIR as to which injured was assaulted by which Appellant & by what weapon. At the threshold, doubt is created about the participation of so many Appellants in the incident which we will discuss in detail at a later stage.

Assault on the deceased

Coming to the assault on the deceased Tutu @ Surendra Rana, we found that in the FI.R., it is mentioned that the deceased was assaulted not only by Appellants No.1, 5, 9 & 11 but also by others by lathi, farsa & tangia. The post-mortem report Ext.1 indicates that there are only three injuries on the deceased, out of which two were on the head & one was on the right shoulder joint. According to the doctor P.W1, the injuries are possible by hard & blunt weapon like lathi blow or by the blunt side of farsa. The informant appears to have left a blank cheque in the F.I. R. for including the names of the accused persons at a subsequent stage apart from naming four Appellants as the assailants of the deceased. He has stated in the FIR about the assault on the deceased by farsa & tangia & in his evidence, he has stated that the deceased was assaulted by farsa by one of the Appellants. There are no incised or cut injuries on the person of the deceased. None of the witnesses including the informant have stated that the deceased was assaulted by the blunt side of any sharp cutting weapon. It seems that after looking at the post-mortem report, when the prosecution realised that more number of persons cannot be included as assailants of the deceased, except the informant PW.1 0, almost all other eye witnesses concentrated on four Appellants i.e. Appellants No.1, 5, 9 & 11 as the assailants of the deceased.

PW.2, PW.3, PW4, PW.6, P.W.7, PW.8 have not stated that apart from these four Appellants, any other accused persons assaulted to the deceased. PW.5 has stated that the deceased was assaulted by three Appellants i.e. Appellants No.5, 9 & 11 only. PW.10 on the other hand has stated that apart from these four Appellants, other accused persons also assaulted the deceased. Thus from the statements of the witnesses vis-a-vis the post-mortem examination report, it is clear that the ocular evidence runs contrary to the medical evidence. Even the participation of four named Appellants in the FI. R. in the assault of the deceased is also doubtful inasmuch as the deceased has sustained only three injuries. The statement of P.W.10 in F.I.R. as well as in Court that apart from the forenamed persons, others also assaulted to the deceased is not corroborated by the medical evidence. Similarly the statement made in the FI. R. as well as in Court by P.W.10 that sharp cutting weapons were used is falsified by the medical evidence. Neither there is any mention in the F.I.R. about the use of sharp edged weapons from its blunt side nor any of the eye witnesses have stated regarding use of blunt side of the sharp cutting weapons in the assault of the deceased.

In case of Mohan Singh v. State of M.P. reported in 1999 Supreme Court. Cases (Criminal) 261, it is held as follows:

"11............. Mere variance of the prosecution story with the medical evidence, in all cases, should not lead to the conclusion, inevitably to reject the prosecution story. Efforts should be made to find the truth, this is the very object for which Courts are created. To search it out, the Courts have been removing the chaff from the grain. It has to disperse the suspicious cloud & dust out the smear of dust as all these things clog the very truth. So long as chaff, cloud & dust remain, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely conclude & leave the case the moment suspicions are created. It is the onerous duty of the Court, within permissible limit, to find out the truth. It means on the one hand, no innocent man should be punished but on the other hand, to see no person committing an offence should get scot-free. If in spite of such effort, suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited to the accused. For this, one has to comprehend the totality of the facts & circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of eye witnesses including the medical evidence, of course, after excluding those parts of the evidence which are vague & uncertain. There is no mathematical formula through which the truthfulness of a prosecution or a defence case could be concretised. It would depend on the evidence of each case including the manner of deposition & his demeans, clarity, corroboration of witnesses & overall, the conscience of a Judge evoked by the evidence on record. So Courts have to proceed further & make genuine efforts within the judicial sphere to search out the truth & not stop at the threshold of creation of doubt to confer benefit of doubt".

We proceed to examine the evidence of each of the eye witnesses vis-a-vis the medical evidence & other surrounding circumstances to test whether it is possible to separate grain from the chaff & to fix liability on the specific accused persons so far as the assault on the deceased is concerned.

P.W.2 Gadadhar Mohapatra

P.W.2 has stated that the deceased was assaulted by Appellants No.1, 5, 9 & 11 on his head by means of lathi & farsa. This evidence is contradicted by the post mortem report Ext. 1 in as much as there are only three injuries on the deceased, out of which two lacerated wounds were on the head & one abrasion was on the right shoulder joint. There is no such injury on the deceased which can be caused by farsa from its sharp side. No doubt the doctor (PW.1) has stated that the external injuries No.1 & 2 with its corresponding internal injuries are possible by a lathi blow or by the blunt side of the farsa with considerable force but PW.2 has not stated that farsa was used by any of the Appellants from its blunt side.

In case Hallu v. State of Madhya Pradesh reported in AIR 1974 SC 1936, it is held as follows:

"11. According to the High Court, axes & spears may have been used from the blunt side & therefore the evidence of the eye witnesses could safely be accepted. We should have thought that normally when witness says that axe or spear is used, there is no warrant for supposing that what the witness means is that the blunt side of the weapon was used. If that be the implication, it is the duty of the prosecution to obtain a clarification from the witness as to whether a sharp-edged or a piercing instrument was used as a blunt weapon".

No such clarification from P.W.2 has been obtained by the prosecution as to whether farsa was used from its blunt side.

No doubt the defence plea regarding accidental dash of the head of the deceased with a wooden beam as stated by D.W.2, D.W.4, D.W.5 & D.W.8 is not acceptable in view of the evidence of doctor PW.1, but merely because the defence plea is not proved or found to be false that would not automatically proves the prosecution case. It is well-settled that the prosecution has to stand on its own legs & no weakness in the defence case can come to its rescue so far as the burden of proof of the guilt of the accused is concerned. Infirmity of the defence case will not lead to the proof of the prosecution case. The prosecution has to prove, by cogent evidence, beyond all reasonable doubt the case against the accused & if they are unable to prove it, merely because the accused side had failed to prove its defence case, the case of the prosecution will not be proved automatically. If both the parties are unable to prove their case & if any doubt is created in the case of the prosecution, benefit would be given to the accused.

The Learned Counsel for the State submitted that since PW.2 is an injured eye witness, his evidence to be accepted as truthful. We are not inclined to accept the submission made by the State. In case of Badrilal v. State of M.P. reported in (2010) 47 Orissa Criminal Reports (SC) 638, it is held that injuries to a witness do indicate his presence at the time of incident, but from that it does not flow that his evidence is to be accepted automatically.

Therefore the evidence of PW.2 so far as assault on the deceased is concerned, is contradicted by the medical evidence & it is difficult to accept that four persons assaulted on the head of the deceased by means of lathi & farsa & it is also difficult to accept that any farsa was used for assaulting the deceased. In such a situation, it is not possible to separate grain from the chaff in the evidence of P.W.2 & accordingly we cannot act upon such evidence so far as the assault on the deceased is concerned.

P.W.3 Madan Rana

P.W.3 has stated that Appellants Nos. 1, 5, 9 & 11 were assaulting the deceased to his head & the other accused persons were shouting to finish the deceased. The instigation part by the other accused persons has not been spoken to by P.W2. P.W3 has not stated about the type of weapons used by the four Appellants for assaulting the deceased. His evidence regarding participation of four persons in the assault of the deceased is also contradicted by the medical evidence.

P.W3 has stated in his cross-examination that when he reached at the spot, the incident of assault had already started & he reached at the spot before arrival of Kalia (PW.4) & Nima. The Learned Trial Court has held that hearing hullah when P.W.3 came to the spot, by that time the assault on Manoj (P.W.10), Gadadhar (P.W.2) & Tutu (deceased) were already over & he had come to the spot thereafter. We have gone through the evidence of P.W.3. In view of the timing of his arrival at the spot, we are also of the view that P.W3 has reached at the spot after the assault on the deceased & therefore his evidence ''as an eye witness so far as assault on the deceased is concerned cannot be accepted.

P.W.4 Kalia Rana

P.W4 has stated that the deceased was assaulted by Appellants Nos. 1, 5, 9 & 11 by thenga & farsa & other accused persons being armed with thenga gheraoed the deceased. This gherao theory which was introduced by PW.4 has neither been stated by PW2 nor by PW.3. He has further stated that the deceased was given about 20 to 25 lathi blows to every part of his body & was further assaulted by farsa on its sharp side. The manner of assault & use of farsa by Its sharp side for assaulting the deceased as stated by P.W4 is falsified by the medical evidence.

It is the prosecution case that by the time P.W4 arrived at the spot, P.W3 was present at the spot. The Learned Trial Court has held that when PW.4 came to the spot hearing hullah along with Debraj Rana, by that time the assault on P.W3, PW.10 & the deceased were already over. We have also gone through the evidence of P.W4. In view of timing of arrival of P.W.4 at the spot, we are of the view that he cannot be said to be an eye witness to the assault on the deceased.

P.W.5 Pradip Mohapatra

P.W5 has stated that Appellants Nos. 5, 9 & 11 assaulted the deceased by means of farsa & thenga. Thus he is the witness who has not implicated Appellant No.1 in the assault of the deceased. The use of farsa in the assault of the deceased as stated by this witness is not corroborated by the medical evidence.

The Learned Trial Court has held that P.W.2, 3, 4 & 10 have not mentioned about the presence of this witness at the initial stage of assault. It is further held that his evidence would indicate that he came to the Chhak hearing hue & try after the assault on the deceased.

We have gone through the evidence of PW.5 & we are also of the view that in view of his timing of arrival at the spot, he cannot be accepted as an eye witness to the assault on the deceased.

P.W.6 Satyabadi Rana

P.W6 has stated that Appellants Nos. 1, 5, 9 & 11 assaulted the deceased by means of thenga & farsa. This witness has not stated that any of the accused persons gheraoed the deceased as stated by P.W4 or that the Appellants were instigated by other accused persons to finish the deceased as stated by P.W3. The evidence of PW6 regarding participation of number of accused persons in the assault of the deceased as well as use of farsa as a weapon of offence is not corroborated by the medical evidence. Thus we are unable to accept PW.6 as an eye witness to the occurrence.

P.W.7 Prasant Rana

P.W7 has stated that Appellants Nos.1, 5, 9 & 11 assaulted the deceased by means of thenga & farsa to his head for which he sustained fracture injury on his head & fell down having bleeding Injury on his head. The evidence of this witness regarding the participation of four accused persons in the assault of the deceased so also use of farsa in such assault is also contradicted by the medical evidence.

The Learned Trial Court has held that it is established from the evidence that at the time of assault on P.W4, this witness was not at the spot & he came only thereafter & therefore he had no occasion to witness the assault on P.W.2, P.W.10 & the deceased which took place prior to the assault on P.W.4. We have also gone through the evidence of P.W.7 & we are also of the view that at the time of assault on the deceased, PW.7 was not present.

P.W.8 Tirthabasi Rana

PW8 has stated that Appellants Nos.1, 5, 9 & 11 assaulted the deceased to his head causing fracture injury & due to injury, he fell down having profuse bleeding. The evidence of this witness is also contradicted by the medical evidence regarding participation of four accused persons in the assault. P.W.8 has not stated which weapons were used by these four Appellants in the assault of the deceased & he has also not stated that any of the accused gheraoed the deceased as stated by P.W.4 or that the Appellants were instigated by other accused persons to finish the deceased as stated by PW3.

The Learned Trial Court after discussing the evidence held that PW.8 has arrived at the spot after the assault on P.W.4 & by that time the assault on P.W.10 & the deceased was already over & therefore PW.8 had no occasion to see the assault either on the P.W.10 or on the deceased.

After going through the evidence of P.W8, in view of his timing of arrival at the spot, we are of the view that PW.8 cannot be said to be a witness to the assault on the deceased.

P.W.10 Manoj Mohapatra @ Rana

P.W.10 has stated that all the accused persons gheraoed the deceased & Appellants Nos.1, 5, 9 & 11 assaulted the deceased on his head & other accused persons also assaulted the deceased on other parts of his body & Appellant No.9 assaulted the deceased by means of a farsa & due to assault, the deceased fell down receiving fracture injury on his head & there was profuse bleeding on his head. The number of accused persons stated to have participated in the assault of the deceased so also the use of weapon like farsa is falsified by the medical evidence. PW10 is the only witness who stated that apart from Appellants Nos.1, 5, 9 & 11, other accused persons also assaulted on the other parts of the body of the deceased. In view of such evidence, we are not inclined to accept the evidence of P.W1 0 that the deceased was assaulted by Appellants Nos.1, 5, 9 & 11 & also by other accused persons.

Sum up evidence relating to assault on deceased

The Learned Trial Court has held that among P.W.2 to 10, only the evidence of P.W.2, 6 & 10 can be considered so far as the assault on the deceased is concerned. After scanning the evidence of these three eye witnesses, we find that though P.W.2 & P.W.6 have implicated four Appellants specifically in the assault of the deceased but P.W.10 has stated that apart from those four Appellants, other accused persons also assaulted to the deceased on the other parts of the body. Similarly though P.W.10 has stated that all the accused persons gheraoed the deceased but neither P.W.2 nor P.W.6 have stated about such aspects.

After carefully assessing the evidence on record, we find that relating to the assault on the deceased, there is variance in the evidence of the witnesses relating to number of accused persons participated in such assault. The evidence relating gherao or instigation by the other accused persons are also contradictory. The use of weapon like farsa or any sharp cutting weapon in the assault of the deceased is also not corroborated by the medical evidence. There is no evidence on record that the farsa was used from its blunt side. Thus when the oral testimony relating to the assault on the deceased is found to be not truthful & reliable & there is inconsistency between the medical & ocular testimony & since in such a situation, it is difficult to separate grain from the chaff, it would be very difficult to fix liability on any of the accused persons particularly on the named Appellants in the assault of the deceased. Though the witnesses have implicated four Appellants i.e., Appellants No.1, 5, 9 & 11 in the assault of the deceased but if each of these Appellants is attributed with just one blow on the deceased then also the injuries noticed as per post-mortem report fall short of the assault. It rather shows that at least one out of the four named Appellants had not assaulted the deceased. Thus we cannot accept the evidence of the prosecution witnesses that Appellants No.1, 5, 9 & 11 have assaulted the deceased by lathi & farsa & that to in prosecution of the common object of an unlawful assembly. Law is well settled specific overt act on the part of the members of the unlawful assembly need not be proved. Prior knowledge that the offence was likely to be committed is sufficient. Each member is to be treated as a principal for the acts of each & all. However the word "knew" used in the second branch of Section 149 IPC implies something more than a possibility & it cannot be made to bear the sense of "might have been known". A mere possibility of commission of offence would not necessarily enable the Court to draw an inference that the likelihood of commission of such offence was within the knowledge of each member of the unlawful assembly. An Inference may be drawn from background of the incident, the motive, the nature of assembly, the nature of arms carried by the members of the assembly, their common object & the behaviour of the members soon before, at or after the actual commission of the crime. The prosecution has to prove that the person concerned was not only a member of the unlawful assembly at some stage but also at all crucial stages. Overt act test need not be a decisive test but it is one of the legitimate tests to be applied while scrutinizing the evidence.

Keeping in view the settled principle of law, we assessed the evidence on record with eagle eyes but we found that there is absence of any material to show that the assault on the deceased was committed in prosecution of the common object of an unlawful assembly or that there was any knowledge of the members of the assembly that the offence was likely to be committed in prosecution of any common object. The observation of the Learned Trial Court that the accused persons were lying in wait at the place of occurrence & that specific overt act has been attributed against all the accused persons is based on no evidence rather it is a mere speculation. The deceased was not in the picture from the beginning. It is the prosecution case that he came to the spot after some of the injured persons were assaulted. The attempt made by the prosecution to create evidence against other Appellants apart from the four Appellants that they gheraoed or instigated is found to be not acceptable. We are of the view that even participation of four named Appellants in the assault of the deceased is a doubtful feature. We therefore set aside the conviction of all the Appellants for offence 302/149 Indian Penal Code.

The Appellants were specifically charged under Section 147 & 148 IPC. When there is rioting simpliciter, offence is punishable under Section 147 IPC. When such rioting is committed by a particular accused or persons having deadly weapons or with anything which, used as a weapon of offence is likely to cause death, offence is punishable under Section 148 IPC. Rioting has been defined under Section 146 IPC which lays down that whenever force or violence is used by an unlawful assembly, or any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of offence of rioting.

Analysing the evidence led by the prosecution, we found that the evidence of PW.2 & P.W.10 indicate that the occurrence took place in village chhak & at the spot there were number of shops. The accused persons had their shops at the spot. The people of the village used to spend their time in village chhak & during eventing hours the people of all castes use to come to the village chhak. PW. 10 has stated that on the date of occurrence, they had all been to police station & returned from Police Station at 3 to 3.30 p.m. & after they returned, they all got down at village chhak & went to their respective houses & at that time he had not seen any of the accused persons in village chhak. It is also the prosecution case that on the date of occurrence P W.10 had been to village chhak to bring tiffin when he was assaulted by two Appellants. Thus it cannot be said that the visit of PW.10 to the spot for a particular purpose was within the knowledge of the Appellant. It also cannot be found that they were aware that injured persons & the deceased would arrive at the spot one after another. Though in the FIR, it is mentioned in an omnibus manner that the accused persons were armed with thenga, knife, farsa, tangia & iron rod but in Court PW.10 has tried to be more specific stating that all the Appellants except Appellants Nos.9 & 10 were holding lathies & Appellant No.9 was holding farsa & Appellant 10 was holding iron rod. The other eye witnesses have not specifically stated regarding holding of weapons by each of the Appellants. There is absence of evidence that the Appellants formed an unlawful assembly & in prosecution of the common object of such assembly, force or violence was used by such assembly. There is also absence of evidence as to whether each of them was armed with deadly weapon or a weapon which is likely to cause death. Therefore the order of conviction under Section 147 & 148 IPC cannot be sustained. We therefore set aside the conviction of all the Appellants for offences under Section 147 & 148 Indian Penal Code.

Coming to the evidence of assault on the other injured persons, we found that :

(i) P.W.2 Gadadhar Mohapatra is one of the injured. He has stated that he was assaulted by A-2, A-3, A-5 & A-6 by means of thenga on his right fore arm, left elbow, left thigh & to the right side head.

As per the evidence of the doctor P.W13, P.W2 has sustained a lacerated wound on the scalp & swellings on the right fore arm, right calf, left thigh & left elbow & the injuries were opined to be simple in nature. The doctor has also stated that the injuries might have been caused by blunt weapon & the age of injuries is within four to six hours of his examination. The injury report has been proved as Ext.4/1. The evidence of P.W2 is corroborated by P.W.10 who has also stated that Appellate Nos. 2, 3, 5 & 6 assaulted P.W2 by means of thenga.

Thus, considering the statements of eye witnesses & the injured so also the corroborative medical evidence, we find that the prosecution has established that Appellants Nos. 2, 3, 5 & 6 have assaulted P.W.2 in furtherance of their common intention.

(ii) P.W.3 Madan Rana has stated that he was assaulted by Appellants No.6, 7 & 9 for which he received swelling injuries on left hand, right thigh & bleeding injury on the right elbow joint

As per the evidence of doctor P.W 13, PW.3 has sustained only one lacerated wound on the right elbow which is simple in nature & the patient complained of pain over the right thigh & left hand. The injury report has been marked as Ext.5/1. No other witness has stated about the assault on P.W3 by these three Appellants. In view of such evidence, we are unable to fix any liability on any of the Appellants relating to the assault on P.W3.

(iii) PW.4 Kalia Rana has stated that he was assaulted by Appellants No.3, 6, 8 & 9 by thenga & farsa.

The doctor PW 13 has noticed only one incised wound on the scalp of P.W4 which has been opined to be simple in nature. The injury report has been marked as Ext.6/1 No other witness has implicated these four Appellants in the assault of P.W4. Since the medical evidence contradicts the evidence of PW.4, we are unable to fix any liability against any of the Appellants so far as the assault on PW.4 is concerned.

(iv) P.W. 7 Prasanta Rana has stated that he was assaulted by Appellant Nos. 1, 5 & 10 on his right leg & left knee by means of thenga.

The doctor P.W.13 who examined P.W.7 has found a lacerated wound over the right skin of tibia & a swelling on the left knee & both these injuries have been opined to be simple in nature. The injury report has been marked as Ext.9/1. No other witness has specifically stated about the assault on P.W.7 by these three Appellants. Since the medical evidence runs contrary to the ocular testimony of P.W7, we don''t think it proper to fix any ability against any of the Appellants so far as the assault on PW.7 is concerned.

(v) P.W8 Trithabasi Rana has stated that he was assaulted by Appellant No.6 on his hand & back side by means of a thenga.

The doctor P.W.13 has noticed an abrasion on the left hand & two bruises on the back of P.W8. According to the doctor, the injuries are simple in nature & might have been caused by blunt weapon & the age of injuries was four to six hours of his examination. The injury report has been marked as Ext. 10/1. Since the evidence of P.W.8 is consistent with the medical evidence, we are of the view that the prosecution has proved that Appellant No.6 has assaulted P.W8 by means of a lathi for which he sustained simple injuries.

(vi) PW 10 Manoj Mohapatra @ Rana has stated that he was assaulted by Appellants No.10 & 11 on his head & left thigh by means of thenga & iron rod.

The doctor P.W 13 has examined P.W 10 & found one lacerated wound on the scalp & swelling injury on the left thigh & both the injuries were opined to be simple in nature. The doctor has stated that the injuries are possible by blunt weapon & the age of the injures was four to six hours by the time of his examination. The injury report has been marked as Ext.12/1. The evidence of assault on P.W 10 by Appellants No.10 & 11 is corroborated by the evidence of P.W2, PW5, P.W7 & P.W8. Thus considering the statements of eye witnesses & the injured so also the corroborative medical evidence, we are of the view that the prosecution has proved that the Appellants No.10 & 11 assaulted P.W.10 in furtherance of their common intention.

Sum up evidence relating to assault on injured persons

After careful analysis of the evidence of the witnesses relating to the assault on the injured persons, we are of the view that prosecution has successfully proved that P.W.2 Gadadhar Mohapatra was assaulted by Appellants No.2, 3, 5 & 6 in furtherance of their common intention; P.W.8 Tirthabasi Rana was assaulted by Appellant No.6 alone & P.W.10 Manoj Mohapatra @ Rana was assaulted by Appellants No.10 & 11 in furtherance of their common intention. The Appellants No.2, 3, 5, 6, 10 & 11 along with other Appellants were charged under Sections 325/149 & 307/149 Indian Penal Code for the assault on the injured persons but they were found guilty under Section 324/149 Indian Penal Code. No prejudice has been shown to have been caused for not framing a distinct charge with the aid of Section 34 IPC, as intention which is a question of fact, has to be gathered from the evidence & the evidence on record clearly establishes that the Appellants No.2, 3, 5, 6 did share the common intention for assaulting P.W.2 & Appellants No.10 & 11 did share the common intention for assaulting P.W.10. That apart Appellant No.6 alone assaulted P.W.8.

In case of Jivan Lal v. State of M.P. reported in (1997) 9 Supreme Court Cases 119, it is held that it is open to the Court to take recourse to Section 34 of IPC even if the said Section was not specifically mentioned in the charge & instead Section 149 IPC has been included & a finding that the assailant concerned had a common intention with the other accused is necessary for resorting to such a course. Thus instead of Section 324/149 IPC as held by the Learned Trial Court, we are of the view that the Appellants Nos. 2, 3, 5, 6, 10 & 11 are liable to be convicted under Section 324/34 IPC.

Accordingly, Appellant No.2 Bunu @ Kunjabihari Nayak, Appellant No.3 Endu @ Ramesh Pani, Appellant No.5 Sesa @ Seshadev Gochhi, Appellant No.6 Nanda @ Basanta Gochhi, Appellant No.10 Pradip Kumar Sahoo & Appellant No.11 Golakha Sahoo are sentenced to undergo R.I. for one year each for their conviction under Section 324/34 IPC.

The remaining Appellants i.e. Appellant No.1 Krushna Chandra Behera, Appellant No.4 Masani @ Satyabrata Nayak, Appellant No.7 Babu Gochhi, Appellant No.8 Surendra Attabudhi & Appellant No.9 Laxmidhar Gochhi are acquitted of the charge under Section 324/149 IPC.

In the result, the Criminal Appeal is allowed in part. The impugned Judgment & order of conviction of the Appellants under Section 147, 148 & 302/149 IPC & sentence passed thereunder against the Appellants are hereby set aside & they are acquitted of the charge under Section 147, 148 & 302/149 IPC.

The Appellant No. 1 Krushna Chandra Behera, Appellant No.4 Masani @ Satyabrata Nayak, Appellant No. 7 Babu Gochhi, Appellant No.8 Surendra Attabudhi & Appellant No.9 Laxmidhar Gochhi are also acquitted of the charge under Section 324/149 IPC.

The Appellant No. 2 Bunu @ Kunjabihari Nayak, Appellant No.3 Endu @ Ramesh Pani, Appellant No.5 Sesa @ Seshadev Gochhi, Appellant No.6 Nanda @ Basanta Gochhi, Appellant No.10 Pradip Kumar Sahoo & Appellant No. 11 Golakha Sahoo are convicted under Section 324/34 IPC & sentenced to undergo R.I. for one year each.

It seems that all the Appellants were on bail during trial & after the Judgment & order of conviction dated 11.05.2007, all of them are taken into custody. During pendency of the appeal, the Appellants Nos.2, 4, 6, 7, 8 & 10 were granted bail on 28.03.2008, Appellant No.3 was granted bail on 5.9.2008, Appellant No.11 was granted bail on 19.5.2009 & Appellant No.1 was granted bail on 17.8.2012 by virtue of the orders of this Court.

It further seems that out of the Appellants whom we have convicted, Appellant No.2 Bunu @ Kunjabihari Nayak was in jail from 25.11.2002 to 17.04.2003 during trial & also from 11.5.2007 till he was released in terms of the bail Order Dated 28.3.2008 of this Court & thus he has already served the sentence imposed by us & therefore he is not required to be taken into custody further in connection with this case. He is set at liberty & his personal & surety bonds are discharged.

Appellant No. 3 Endu @ Ramesh Pani was in jail from 25.11.2002 to 17.4.2003 during trial & also from 11.5.2007 till he was released in terms of the bail Order Dated 5.9.2008 of this Court & thus he has also served the sentence imposed by us & therefore he is not required to be taken into custody further in connection with this case. He is set at liberty & his personal & surety bonds are discharged. Appellant No.5 Sesa @ Seshadev Gochi was in jail from 18.8.2003 to 10.9.2003 during trial & also from 11.5.2007 till now & thus he has served out the sentence imposed on him & therefore he should be set at liberty forthwith if he is not required to be detained in any other case.

Appellant No. 6 Nanda @ Basanta Gochhi was in jail from 18.8.2003 to 16.9.2003 during trial & also from 11.5.2007 till he was released in terms of the bail Order Dated 28.3.2008 of this Court & thus he is directed to surrender forthwith before the Learned Trial Court to serve out the remaining period of sentence, if any, failing which the Learned Trial Court shall proceed against him in accordance with law.

Appellant No. 10 Pradip Kumar Sahoo was in jail from 18.8.2003 to 16.9.2003 during trial & also from 11.5.2007 till he was released in terms of the bail Order Dated 28.3.2008 of this Court & thus he is directed to surrender before the Learned Trial Court to serve out the remaining period of sentence, if any, failing which the Learned Trial Court shall proceed against him in accordance with law.

Appellant No. 11 Golakha Sahoo was in jail from 8.10.2003 to 16.10.2003 during trial & also from 11.5.2007 till he was released in terms of the bail Order Dated 19.5.2009 of this Court & thus he has also served the sentence imposed by us & therefore he is not required to be taken into custody further in connection with this case. He is set at liberty & his personal & surety bonds are discharged.

Appellant No. 1 Krushna Ch. Behera, Appellant No.4 Masani @ Satyabrata Nayak, Appellant No.7 Babu @ Sarat Kumar Gochhi & Appellant No.8 Surendra Atabudhi who are on bail are discharged from liability of their bail bond. Their personal & surety bond stand cancelled. Appellant No.9 Laxmidhar Gochhi who is jail custody after conviction should be set at liberty forthwith if he is not required to be detained in any other case.

Lower Court Records with a copy of this Judgment be sent down to the Learned Trial Court forthwith for information & necessary action.

Accordingly Criminal Appeal is allowed in part.

Vinod Prasad, J. - I agree.