Raju and Others vs State of Orissa

Raghubir Dash, J.—Both the appeals, heard analogously, are against the judgment dated 30.07.2009 passed by the learned 1st Additional Sessions Judge, Puri in S.T. Case No. 35/283 of 2006 convicting the Appellants in both the appeals finding them guilty under Section 302 /294 /34 of IPC and Section 9(B) of the Explosive Act and sentencing each of them to serve life imprisonment with fine of Rs. 10,000/-, in default to undergo R.I. for two years for the offence punishable under Section 302 /34 of IPC, S.I. for three months for the offence punishable under Section 294 /34 of IPC and S.I. for two years for the offence punishable under Section 9(B) of the Explosive Act, 1884 with direction that the sentences shall run concurrently.

On 29.08.2005 at about 2.20 P.M. an F.I.R. was submitted by one Ananta Parida at Hat Delanga Out Post, which was, subsequently, registered as Delanga P.S. Case No. 95 of 2005 under Sections 302 /294 /34 of IPC, Section 25 /27 of Arms Act and Section 9(B) of Explosive Act. In the F.I.R., it is stated that on the same date at about 1.30 P.M. informant''s brother Bijay Parida came to their house to inform that Raju Dash, Sudarsan Barik, Sukanta Mallik, Kasia Sahoo, Hemanta Barik, Suratha Behera, Puria Behera, Subash Mallick and Akrula Behera killed their brother Ajay Parida by means of sword, gun and bomb.

Upon receipt of such information the informant rushed to the spot and shifted the deceased to the Hospital at Delanga where the doctor declared that the deceased was brought dead. It is stated in the F.I.R. that because of previous enmity the accused persons killed the deceased.

Investigation was taken up by the O.I.C. of the Police Station. In course of investigation inquest over the dead body was held, witnesses were examined, dead body of the deceased was sent for postmortem, spot was visited and spot map was prepared, incriminating objects were seized from the spot, the Appellants were arrested and forwarded to the Court, some other articles connected with the case were also seized, the seized articles along with blood stained apparels of the deceased were sent for chemical examination and on completion of investigation charge-sheet was submitted on 30.12.2005 sending up the Appellants for trial showing the other accused persons as absconders. To avoid delay in the trial of the Appellants, who were in custody, the case against them was split up and they were committed to the Court of Session to stand their trial. On 5.09.2006 charges were framed against the Appellants under Sections 302 /294 /34 of IPC and Section 9(B) of the Explosive Act.

The defence plea is one of false implication.

Out of the 21 prosecution witnesses, P.Ws. 3 to 7, 9, 11 and 20 are eye witnesses. P.Ws. 9 and 20 (the mother and the elder brother of the deceased, respectively) implicate the accused persons, but remaining of the eye witnesses do not implicate them. P.W. 8 is the informant. P.W. 17 is a doctor who conducted postmortem examination. P.W. 15 is a doctor who examined P.W. 5 who allegedly sustained injury due to explosion of a bomb. P.W. 16 is the A.S.I. of Police who was attached to Hat Delanga Bazar Police Out Post. P.W. 21 is the Investigating Officer. P.Ws. 18 and 19 are witnesses to the inquest. Rest of the witnesses are witnesses to different seizure made by the I.O. in course of investigation.

The defence declined to adduce any evidence.

Relying on the ocular testimony of P.W. 20 and finding that P.W. 20, to some extent, has been corroborated by P.Ws. 8, 9 and 17, learned trial Court held the prosecution case satisfactorily established as against the Appellants and passed the impugned judgment.

Reiterating the grounds taken in the appeal memo in Crl. A. No. 331 of 2009 learned counsel for the Appellant argues that the findings recorded by the learned Sessions Court are against the weight of materials available on record, that the witnesses relied on by the learned lower court stand at variance with each other, that the evidence of the witnesses relied on by the learned lower court is devoid of any substance, that learned Sessions Court has wrongly taken assistance of the evidence of hostile witnesses and that the evidence available on record are not sufficient to prove the charges beyond reasonable doubts.

Supporting the aforestated arguments, learned counsel for the Appellants in Crl. A. No. 349 of 2009 further submits that the judgment impugned herein is based on surmises and presumptions, that no specific overt act has been attributed to any of the Appellants, that the evidence of hostile witnesses going in favour of the Appellants has not been given due weightage, that none of the independent eye-witnesses supports the prosecution case whereas the eye-witnesses, who are the family members of the deceased, are not found to be trustworthy and that the judgment is rendered in a mechanical manner.

Learned counsel for the State, on the other hand, supports the findings recorded by the learned Sessions Court submitting that the testimony of P.Ws. 9 and 20, two of the eyewitnesses, stands undemolished and corroborated by medical evidence.

It is not in dispute that the deceased met with a homicidal death. The doctor (P.W. 17) who conducted post-mortem examination found the following external and internal injuries:--

"(i) Incised wound of size 1/2" x 1/2" x 1/2" on left fore-arm on ventral aspect.

(ii) Incised wound 4" above the right ankle cutting both the bones of the leg leaving only a tag of skin uncut.

(iii) Lacerated wound of size 2 1/2" x 1/2" x 1/2" on the dorsal aspect of right thumb.

(iv) Penetrating wound of size of 1" x 1/2" communicating to the thoracic cavity on right side in the back at the level of 4 1/2" below the interior angel of scapula.

(v) Incised wound of size 5 1/2" x 4" communicating to the cranial cavity in the occipital region. On opening, the occipital bone was found cut which is of the size 3" x 3 1/2" with laceration of the membrane and brain matter.

(vi) On dissection, haematoma over the entire anterior chest wall in left side was found. On opening of the thoracic cavity, the cavity was found filled with blood and one metallic bullet was found in the lung tissue. The lungs (lower and middle lobe) lacerated with the lower lobe of the left lung."

The doctor opined all the injuries to be ante-mortem in nature and the cause of death was stated to be shock and haemorrhage due to injuries to vital structures like brain and lungs and the injuries to the leg.

Though several persons are cited in the charge-sheet as eye-witnesses, only the mother (P.W. 9) and a brother (P.W. 20) of the deceased implicated the accused persons. Most of the witnesses, who were supposed to depose as eye-witnesses have either turned hostile or do not implicate the accused persons in the commission of the crime. Learned trial court has relied on the testimony of P.Ws. 9 and 20. P.W. 9, the mother of the deceased, was permitted by the trial court to be examined under Section 154 of the Evidence Act. But, a careful reading of her deposition would reveal that actually she is not a hostile witness. Learned Public Prosecutor should not have sought for permission of the Court to examine her under the provisions of Section 154 of Evidence Act. The entire of her deposition does not reveal her hostile attitude. She entirely supported the prosecution case. But being an old lady she was not able to narrate the occurrence elaborately. Perhaps for that reason learned Public Prosecutor wanted to cross-examine her to elicit something more from her mouth. It appears, the learned Trial Court in a routine manner allowed such prayer of the prosecution. When she was being examined under Section 154 of Evidence Act the learned Public Prosecutor started putting leading questions to her and she admitted that while being examined by the police she had stated all those facts which are there in her Section 161 , Cr.P.C. statement. Since she has not shown any hostility, she cannot be branded as a hostile witness. However, a close scrutiny of her testimony compels us to opine that her evidence is halting and/or shaky in nature and it is not safe to place reliance on her testimony. Reasons for giving such an opinion may be narrated hereunder.

It is not challenged by the prosecution that at the relevant time deceased''s father was staying in a house situate in the vicinity of the spot.

In her direct examination she has stated that while she was going to her husband''s house that situates near the spot, she saw the accused persons chasing her son Ajay (the deceased) who was in injured condition and was profusely bleeding. She further says that she saw accused Rajendra (Appellant in Crl. A. No. 331 of 2009) fired a shot from his pistol at the deceased and, thereafter, rest of the accused persons assaulted the deceased giving indiscriminate blows by means of sword and other weapons. In her cross-examination she has stated that she happened to see the incident while she was cleaning utensils near her husband''s quarters and that just prior to her witnessing the incident, she was inside that quarters. Both the versions are contrary to each other and cannot be reconciled.

As per the prosecution case one of the co-accused, namely, Sudarsan Barik (an absconder) was armed with one pistol and it was Sudarsan Barik who fired at the deceased from his behind. It is never the case of the prosecution that accused Raju being armed with a pistol chased the deceased and fired at him. Through the I.O. this material omission in Section 161 , Cr.P.C. statement of P.W. 9 has been proved. Therefore, the testimony of P.W. 9 that accused Raju fired at the deceased gives rise to a reasonable doubt over her claim as an ocular witness.

Now, we shall proceed to consider the reliability of the remaining eye-witness who has supported the prosecution case. He is none other than the elder brother of the deceased. He claims to have witnessed a part of the incident. According to him, while he was present on his own field, which is about 500 feet away from the spot, he heard the sound of bomb explosion and hearing such sound he rushed towards the nearby level crossing. According to this witness this level crossing is about 150 feet away from the spot where his deceased brother was being assaulted by the assailants. He claims that he saw accused Raju Dash, Sudarsan Barik and Kashinath Sahu, riding on a Hero Honda Motorcycle, came from deceased''s behind and dashed the motorcycle against him as a result of which he fell down and thereafter said Sudarsan and Kashinath, getting down the motorcycle, assaulted the deceased by means of sword. He further says that other accused persons, namely, Sukanta Mallick, Suratha Behera, Purushottam Behera, Kashinath Barik, Akura Behera and Subash Mallick later arrived at the spot being armed with weapons like sword and assaulted the deceased. He has further stated that all the accused persons except Raju Dash, assaulted his brother. He further says that what he first saw was the chasing of the deceased.

It is not denied by the defence that P.W. 20 has got a piece of land at a distance of 500 feet from the spot. However, when asked about the particulars of that land he expressed his inability to give its plot number and the name of the person in whose name the land stands recorded. It is not in dispute that on the other side of the level-crossing village of P.W. 20 situates at a distance between 1/2 Km. and 1 Km. Therefore, the testimony of P.W. 20 that his family members have a piece of land near the level-crossing cannot be disbelieved. Since it is not suggested to the witness that they do not have any land anywhere in the vicinity of the level-crossing, there is no reason as to why it should be disbelieved that when the sound of explosion of bomb was heard he was present at a place which is about 500 feet away from the spot.

Learned counsels for the Appellants challenge the veracity of this witness, pointing out some statements he has made during his cross-examination. According to P.W. 20 the level-crossing is 15 feet higher than the nearby fields. Therefore, it is argued, it cannot be believed that P.W. 20 could see the assault either standing on his land or while approaching to the spot. As stated by P.W. 20, when he heard the sound of bomb explosion he was at a distance of 500 feet from the level crossing. According to the prosecution case, the spot where the bomb explosion took place is somewhere inside the market area of Delanga Hat Bazar. P.W. 5, though a hostile witness, has stated that while she was returning from her school and was at Delanga Hat Bazar, there was some explosion and in that explosion she sustained injury in her right leg. In this regard P.W. 6 corroborates P.W. 5. According to the prosecution, the accused persons, finding the deceased at Delanga Bazar, chased him and on being so chased the deceased ran towards the level-crossing to save his life. Thus, it is quite presumable that it took some time for the deceased and the assailants to reach at the spot of assault from the place where bombs exploded. That, in the Bazar area bomb explosion took place is proved by the fact that due to such explosion P.W. 5 sustained one lacerated injury. Some other witnesses also speak about bomb explosion in the market area. P.W. 20 claims that having heard the sound of explosion he rushed towards the level crossing. The distance being only about 350 feet it is quite possible that he, having reached at the level-crossing, could see the incident when the deceased was still chased by the assailants. Therefore, evidence of P.W. 20 cannot be disbelieved merely for the reason that the level crossing is about 15 feet higher in level than the nearby fields.

P.W. 20 has stated in his cross-examination that he had seen the accused persons (except Raju Dash) assaulting the deceased while the deceased was lying on the ground facing downward being encircled by assailants. He claims to have seen the assault for about two minutes. He has further stated that outsiders numbering 100-200 were present at the spot encircling the deceased. Putting emphasis on the last mentioned statement of P.W. 20 learned counsel for the Appellants argued that when about 100-200 persons had encircled the spot where the deceased was lying, P.W. 20 cannot be believed to have had witnessed the actual assault with clear visibility so as to be able to identify the assailants. Arguing on P.W. 20''s ability to have clear vision of the assault, attention is invited to the deposition of P.W. 20 to the effect that his left eye got damaged about 4 years prior to his giving evidence in the Court. It was not asked to P.W. 20 as to whether his power of vision in the right eye is affected to any extent or not. A person may have nearly perfect eye sight in one of his eyes, the other being totally damaged. A one-eyed person can see objects clearly from a considerable distance. In the absence of further materials on record, there cannot be any reason for rejecting the testimony of P.W. 20 on the ground that his left eye is damaged. Reverting back to the gathering of a large crowd around the spot, sufficient materials could not be elicited from the mouth of witnesses to make out a case that before P.W. 20 could observe the assault on his brother, the onlookers, by large number, had already gathered there forming a wall around the spot. It is also not elicited from P.W. 20 that while the assault was going on the outsiders had already gathered there and they had encircled the spot. He has simply stated that about 100-200 persons were present at the spot encircling the deceased. It is but natural that the crowd increased gradually and it took some time for the outsiders to gather at the spot in such a large number but much prior to their gathering the assault had taken place. While appreciating the point raised by the learned counsel for the Appellants it has to be kept in mind that in his cross-examination P.W. 20 has further stated that the outsiders were standing at a distance of about 150 feet from the place of the assault and he himself was also standing at the same distance. There is no material showing that in between the place of assault and the place where P.W. 20 was standing, there was any object, including the members of the crowd, that obstructed P.W20''s vision. Having regard to all the attending circumstances, we are not persuaded by the submission made by the learned counsels for the Appellants to believe that P.W. 20 was not in a position to see the incident in the manner he has narrated.

Further argument challenging the reliability of P.W. 20 is that when the prosecution case is that the deceased had already received a bullet injury and was bleeding so much so that there was trail of blood from near the police Out Post upto the last place of assault, P.W. 20, in his cross-examination, stated that he did not notice any bleeding from the front side of the deceased while he was being chased by the assailants. No evidence is brought on record showing that the deceased was bleeding from his front side. According to the prosecution, the pistol shot was fired from behind the deceased and the bullet pierced into his body at his scapular region and it remained stuck inside the body thereby suggesting an interference that there was entry wound but there was no exit wound. Therefore, it is quite natural that the deceased was not bleeding from his front side. P.W. 20 has, in clear terms, stated that since he saw the deceased from his front side he did not see any bleeding when he first saw the deceased running towards the level-crossing. He does not say that the deceased was not bleeding from either front side or backside. Instead of demolishing evidentiary value of his testimony, the answer given by the witness in his cross-examination regarding any bleeding from front side of the deceased increases his credibility.

P.W. 20 admits in his cross-examination that after the murder of his brother (the deceased) he was booked under NSA. He further admits that there are 8-9 criminal cases registered against him in Delanga Police Station. Inviting attention to the criminal antecedent of the witness it is argued that evidence of such a witness does not inspire credibility. P.W. 20 has deposed in a credible manner. No contradiction or omission on material facts could be brought on record to discard his testimony. He is none other than the brother of the deceased. There is no reason as to why he should falsely implicate the accused persons thereby allowing the real culprits to escape. If his evidence is otherwise found to be reliable and creditworthy it cannot be discarded merely on the ground that he is an anti-social or a person having criminal background.

Though P.W. 20 has stated that accused Raju was riding on a motorcycle, with accused Sudarsan and Kasinath as pillion riders, and while chasing the deceased accused Raju dashed the motorcycle against the deceased, cross-examination of this witness on behalf of accused Raju has been declined. Learned counsel appearing for Appellant-Raju has argued that since P.W. 20 has stated that all the accused persons, except Raju, were assaulting the deceased, the Appellant-Raju is not the another of the crime and therefore, the finding of the learned Sessions Court holding Raju guilty of murder is not sustainable and must be set aside. Declining to cross-examine P.W. 20 by or on behalf of accused Raju leaves the testimony of the witness unchallenged and the totality of what P.W. 20 has deposed to in the Court makes Raju vicariously liable for the commission of the crime of murder, provided it is ultimately held that the assailants did the act in furtherance of their common intention.

It is emphasized that all the independent eye witnesses do not support the prosecution case, that some of them rule out the participation of the accused persons in the commission of the crime and that one of them has even gone to the extent of saying that the assailants had covered their faces rendering their identification impossible. Under such circumstances, it is submitted, the testimony of P.W. 20 cannot be relied on. To deal with this point the deposition of the eye witness has to be scrutinized. P.W. 3 is an eye-witness to a part of the occurrence that took place in the Delanga market. He does not support the prosecution case but states that at about 1.30 P.M. when he was present in Delanga Bazar there was explosion of a bomb and then people ran helter-skelter and out of fear he himself ran to his house. P.W. 4, another eye-witness, who has not supported the prosecution case and has been declared hostile, has corroborated the prosecution case to the extent that while he was in his shop located in Delanga Hat Chhak he heard a sound and about 5-10 minutes thereafter he saw the deceased running towards Kanasa being chased by 5-10 persons who were armed with deadly weapons. This witness has shown his hostility by stating that none of the accused persons were seen amongst those who were chasing the deceased. P.Ws. 5 and 6 were present in Delanga Bazar at about 1.30 P.M. when there was some explosion. Both of them say that in that explosion P.W. 5 sustained injury in her right leg. They were not supposed to give evidence on the identity of the assailants but they were supposed to say that immediately after the explosion of the bomb they saw 8-9 persons, being armed with weapons, were chasing another person. Since they did not depose to that effect they were declared hostile. However, they have supported a part of the prosecution case saying that on the occurrence day at about 1.30 P.M. there was explosion of bomb in Delanga Bazaar area. P.W. 7, a Havildar, was then attached to Hat Delanga Police Out Post near which the incident occurred. He says that at the time of explosion of bomb he was present in the Out Post. He further says that hearing the sound when they came out of the Out Post they saw 7-8 persons, being armed with deadly weapons, were assaulting the deceased. He further says that when he reached at the spot the culprits fled away. He says that he could not identify the assailants. But then, he does not claim that he had previous acquaintance with the accused persons. P.W. 11, a constable, was then attached to Hat Delanga Out Post. He has stated that while he was in the Out Post he heard the sound of explosion of bomb and then saw the deceased being chased by four persons all having covered their faces with napkins. This witness claims that he had prior acquaintance with the accused persons. In his Section 161 Cr.P.C. statement he named all the accused persons as the assailants. Banking on the testimony of this witness it is argued that if the culprits had covered their faces to conceal their identity, P.W. 20 cannot be believed that he could identify the accused persons as the assailants. But this witness is found to have consciously made attempt to demolish the prosecution case. While the date of incident is 29.8.2005, he repeatedly stated in his direct examination that the date of occurrence was 29.5.2005. When it was confronted to this witness during his examination under Section 154 of Evidence Act that while making statement before the I.O. he mentioned the date of occurrence as 29.8.2005, he initially admitted to have stated so but subsequently he denied to have stated before the I.O. that the date of occurrence was 29.8.2005. He could have stated that because of lapse of time he was not sure about the date of occurrence. Instead, he insisted that the occurrence took place on 29.5.2005. When none of the eye-witnesses, including those who have turned hostile, have stated that the assailants, who were chasing the deceased being armed with weapons, had concealed their identity by covering their faces, this witness gave a sudden twist to the prosecution story stating that the persons who were chasing the deceased had covered their faces. He had not made such a statement before the I.O. In his examination-in-chief he stated that the person who being armed with a pistol was chasing the deceased had covered his face with a napkin. Though he stated in his direct exam that three others also chased the deceased, he did not say at that time that all the three had covered their faces. But in his cross-examination he told that all the persons who were chasing the deceased had covered their respective face with black cloth. This is nothing but a clear case of a conscious attempt to demolish the prosecution case. This witness is a police constable. He does not say that he was not interrogated by the I.O. The I.O. was the then Officer-in-Charge of Delanga Police Station. The latter was the immediate authority of the former. There is no reason to as to why the I.O. would have incorrectly recorded the statement of the constable. While stating before the I.O. P.W. 11 did not state that all or any of the culprits had concealed their identity by putting napkin over their faces. Before the I.O. he stated that he had seen the assault as well. Since number of eye-witnesses were available to the I.O., he would not have cited this police constable as an eyewitness if the latter had not claimed to have witnessed the incident. The incident occurred near the Out Post when this witness was admittedly on duty. The I.O. is expected to record the statement of this witness correctly. Since the real assault took place near the police Out Post and since this witness has claimed that coming out of the Out Post he saw that the deceased was being chased by some persons he must have had seen the assault part as well. But he has not stated in the court anything about the actual assault. He has not explained as to why he did not get the occasion to see the assault. Under such circumstances, P.W. 11 is found to have made false statements before the Court to demolish the prosecution case. Since veracity of this witness is highly doubtful and it is found that he attempted to demolish the prosecution case, the evidence of P.W. 20 cannot be disbelieved on the basis of deposition of P.W. 11.

The occurrence took place at about 1.30 P.M. The police station is about 4 Kilometre from the spot. P.W. 20 having seen the incident rushed to his house to inform his elder brother, P.W. 8. Thereafter, they arranged a vehicle, came to the spot and shifted the deceased from the spot to the hospital at Delanga where the deceased was declared to have been brought dead. Thereafter, F.I.R. was lodged by P.W. 8 at 2.20 P.M. at the station Bazar Out Post. The police station is at Delanga where the hospital is located. P.W. 8, says that the O.I.C., Delanga Police Station, had also come to the hospital after the dead body was taken to the hospital. He further says that the doctor did not agree to attend to the deceased as no report was yet made to the police and advised him to first lodge a report. Most probably, on the advice of the police P.W. 8 had to go back to Delanga Hat Bazar Out Post to lodge the FIR there and not at the police station. If all these facts are taken into consideration, then it cannot be said that there was any delay in lodging the FIR. Making report to police without unreasonable delay leaves little scope for concoction and embellishment. In this case the assailants have been named in the F.I.R. The deceased and his supports at one hand and the accused persons on the other hand were in group rivalry as well as political rivalry. Under such circumstances, it is not surprised that independent witnesses opted to maintain distance by not naming the assailants. Therefore, independent witnesses turning hostile is not a ground to disbelieve the testimony of the sole eyewitness for the reason that he is a close relation of the deceased.

Inviting attention to the testimony of P.W. 15 learned counsel for the Appellant in Crl. A. No. 331 of 2009 has argued that when the deceased was first brought to the hospital at Delanga there was no injury on his person whereas the doctor who conducted post-mortem has surprisingly found multiple external and internal injuries which gives rise to grave doubt as to how and when the injuries were caused. P.W. 15, the Assistant Surgeon attached to U.G.P.H.C., Delanga first attended to the deceased. In his direct examination he has stated as follows:--

"On 29.8.2005 I was Asst. Surgeon, U.G.P.H.C. Delang in the district of Puri. On that day at about 1.50 P.M. I received the dead body of Ajaya Parida aged 32 years son of Sagar Parida which was brought by his relatives. I detected blood stain on different parts of the clothings of the dead body. I examined the body to confirm whether it was a dead body or not and I did not observe any injury on the dead body. I informed the matter to O.I.C., Delang P.S. through A.S.I., Hata Bazar outpost."

Learned counsel for the State rightly submits that the manner of recording of the deposition of P.W. 15 is somewhat confusing and, therefore, the defence should not be allowed to fish in the troubled water. The argument advanced by the learned counsel for the Appellant is based on the statement of P.W. 15 to the effect that he "did not observe any injury on the dead body", but considering the entire of his deposition it can be read between the lines that he was supposed to examine whether the body brought to the hospital was a dead body or not and he was not supposed to report as to whether any injuries were there on the dead body and, therefore, he did not make any observation as to whether any injury was found on the dead body. The doctor''s report, marked as Ext. 9, reflects that the doctor simply informed the police that the dead body of one Ajay Parida was received at the hospital at 1.50 P.M. No requisition was issued to the doctor asking him to submit any injury report. Nothing was mentioned in Ext. 9 about the presence of any injury on the dead body. Therefore, while deposing in the Court the doctor, by referring to Ext. 9, has stated that he had examined the dead body of Ajay Parida to confirm whether it was dead or not. While cross-examining P.W. 15 no question was put to P.W. 15 as to whether he had noticed any mark of injury on the dead body. The other doctor who conducted post-mortem (P.W. 17) opined that all the injuries were ante-mortem in nature. No suggestion was put to him that all the injuries found on the dead body were post-mortem in nature. The argument advanced by the learned counsel, which was not raised before the trial court, is without any substance.

It is further argued that though it is the case of the prosecution that Appellant Raju was driving the motorcycle the I.O. failed to ascertain as to whether said accused knew how to drive a motorcycle. It is further submitted that though one motorcycle lying abandoned at the spot was seized by the police, investigation was not conducted to ascertain whether the said accused, who allegedly left the motorcycle at the spot, was the owner of the motorcycle. When an eye-witness (P.W. 20) has stated that accused Raju was driving the motorcycle while chasing the deceased from behind and when the eye-witness is found to be reliable and trustworthy, evidence as to whether the accused knew driving a motorcycle is not necessary. Similarly, failure on the part of the I.O. to ascertain the ownership of the motorcycle does not affect the veracity of the eye-witness.

Inviting attention to the chemical examiner''s report (Ext. 17) it is further argued that absence of gunshot residue on the shirt (wearing apparels of the deceased) belies the prosecution story that the deceased had sustained any gunshot injury. Learned counsel submitted that if a shot was fired from the pistol and the bullet pierced into the body of the deceased then the shirt which the deceased was wearing at the relevant time must have contained gunshot residue. Such argument is also found to be without any substance. The doctor conducting post-mortem recovered one bullet from the deceased''s lung and he has opined that bullet injury caused to the deceased was anti-mortem in nature and that the bullet injury along with other injuries caused hemorrhage resulting in the death of the deceased. The C.E. report reveals that the deceased''s shirt was having one hole at the backside of the middle portion of size 18 c.m. x 6 c.m. which indicates that entry of the bullet caused this hole. Thus existence of the hole supports the prosecution case regarding the bullet injury. May be due to excessive bleeding, the gunshot residue got washed away as a result of which the Chemical Examiner could not find presence of any gunshot residue on the shirt.

Further argument advanced by the learned counsels is on the admissibility of the F.I.R. marked as Ext. 4. It is argued that the first report in point of time has been suppressed and Ext. 4, which is marked as the F.I.R., is a subsequent report. When the I.O. was in the witness box he has stated in his cross-examination that the A.S.I. of Out Post (P.W. 16) had informed him about the occurrence in writing and that information is the first information regarding the occurrence. Answering to another question put to I.O., he has denied that Ananta Parida (P.W. 8) had orally reported to him about the incident which he reduced to writing but he suppressed the same. P.W. 16 has stated that on 29.8.2005 at 2.00 P.M. he received a report from the Medical Officer, U.G.P.H.C., Delanga that dead body of one Ajay Parida was received at the hospital. On receipt of such a report P.W. 16 made Station Diary Entry No. 415/29.8.2005 and thereafter he informed the matter to the Officer-in-Charge of Delanga Police Station. He does not claim that he submitted any information in writing. It is not elicited from either P.W. 16 or P.W. 21 as to what were the contents of the information given by P.W. 16 so as to ascertain as to whether such information can be said to be a report as contemplated under Section 154 of Cr.P.C. in the absence of such materials the opinion of the I.O. (P.W. 21) that the information given by A.S.I. in writing is the F.I.R. regarding the occurrence cannot be accepted as correct. It appears from the case diary, so also the evidence of the witnesses, that on receipt of the written report of P.W. 8, which is marked Ext. 4, the investigation was set to motion and there are no convincing materials giving rise to an inference that any report prior to lodging of Ext. 4 was presented to the police about the commission of the crime and that report has been suppressed.

Attacking on the reliability of P.W. 20, it is further pointed out that if his ocular accounts were correct, then the deceased would have received many more number of injuries than the postmortem report reflects. This argument appears to be having some force. Therefore, this needs careful consideration. The fact that a number of persons were chasing the deceased who started running from the market area towards the level crossing is stated by some of the hostile witnesses such as P.Ws. 3, 4 and 11. P.W. 7, one Havildar, has stated that when he came out from the Outpost he saw 7 to 8 persons armed with weapons were assaulting the deceased. P.W. 7 saw that part of the occurrence which took place near the level crossing about which P.W. 20 also has testified. P.W. 20 gets corroboration to the extent that not only the three persons, who came riding on a motor-cycle, had participated in the assault but also there were other persons who had participated in the chasing of the deceased and, thereafter, they assaulted him. P.W. 20 has named those persons who participated in the assault. Since three persons came riding on a motor-cycle they first intercepted the deceased and after making him fall on the ground two of them got down and started assaulting the deceased. Others, who were running while chasing the deceased, reached at the spot of assault being armed with weapons and joined with the two assailants who were assaulting the deceased. It is quite probable that many of them did not give actual blows and for that reason the deceased sustained one lacerated and three incised injuries. P.W. 20 and, for that matter, P.W. 7 seem to have made exaggeration by claiming that 7 to 8 persons had assaulted the deceased. But it cannot be said that while claiming that all the accused persons had participated in the commission of the crime they took resort to falsehood to implicate all or any of the accused persons even though they were not in the group of assailants.

In the light of the discussion made above, P.W. 20, though interested in the prosecution, is not a witness to be distrusted. Most of the grounds taken in the Appeal memo in both the CRLAs are without any substance. When P.W. 20 is found to be reliable and trustworthy, the findings recorded by the learned Sessions Court cannot be said to be against the weight of materials available on record or that his evidence is devoid of any substance. It is also wrong to say that the findings of the learned Sessions Court are based on surmises and presumption. It is true that independent witnesses did not support the prosecution case but there is an eye witness whose testimony stands the test of cross-examination and, save and except his interestness, there is no other reason why his evidence should not be relied on.

Inviting attention to the evidence of hostile witnesses it is argued that the learned Sessions Judge has not given any weight to those parts of their evidence which are favourable to the defence and, on the other hand, the learned Sessions Court has taken the assistance of the evidence of the hostile witnesses. We have dealt with the testimony of each of the hostile witness and assigned reasons as to why their evidence, which appear to be favourable to the defence, cannot be used in favour of the Appellant and how the testimony of some of the hostile witnesses supports the prosecution case to the extent that in the Hata Delanga Bazaar area there was bomb explosion and thereafter, the deceased was found chased by several persons. We do not find the learned Sessions Court to have committed any illegality while dealing with the testimony of the hostile witnesses.

Having dealt with each and every point raised by the learned counsels we do not find a cloud of reasonable doubt covering the prosecution case. P.W. 20 is found to be reliable and trustworthy. Therefore, the next step to be taken is to find out whether on the basis of the testimony of P.W. 20 the Appellant can be said to have committed offences punishable under Sections 302 /294 /34 of I.P.C. and Section 9(B) of Explosive Act.

As regards the offence under Section 294 of I.P.C. the learned Sessions Judge appears to have convicted the Appellant under Section 294 of I.P.C. solely on the basis of the evidence of P.W. 9 who has stated that when she pleaded with the accused persons not to assault her son, accused Raju Dash uttered some obscene words. She has stated that Raju instigated rest of the accused persons saying "GIHALI BEDHA KU PUA SANGARE HANIDEBI". This accusation is against accused Raju Dash only and it cannot be used against rest of the accused persons. Therefore, finding all the Appellants guilty of the offence under Section 294 of I.P.C., applying Section 34 of I.P.C., is incorrected. Neither P.W. 9 nor any other witness has stated any other facts that may be taken into consideration while considering as to whether the ingredients of the offence punishable under Section 294 of I.P.C. have been made out or not. The words "GIHALI" and "BEDHA" are vulgar in nature but used as abusive words. Those are not in the nature of obscene words. The test of obscenity is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and mere platitudinous utterances signifying the enraged state of the person''s mind would not be sufficient to attract the application of the provisions of Section 294 of Indian Penal Code (Om Prakash v. State of M.P.: 1989 (3) Crimes 589). The words "GIHALI" and "BEDHA" allegedly uttered by one of the accused are trite utterances often made in even minor quarrels and they do not tend to deprave and corrupt anyone''s mind. That apart, there is no evidence that utterance of such abusive words, even if those are accepted as obscene words, had caused annoyance to others including P.W. 9. The evidence of P.W. 9 fails to make out all the ingredients of Section 294 of I.P.C. Also her evidence is found to be not trustworthy. In the result, the order of conviction as regards the offence punishable under Section 294 of I.P.C. is not sustainable.

Coming to the order of conviction under Section 302 /34 of I.P.C., P.W. 20 deposes only on one part of the occurrence. He saw the deceased being chased by Appellant Raju Dash, Appellant Kalia @ Kasinath Sahoo and non-Appellant Sudarsan Barik on a motorcycle, and ultimately the deceased was knocked down by the motorcycle, which was being driven by Appellant Raju Dash. After the deceased had fallen on the ground, Sudarsan and Kasinath got down the motor-cycle and assaulted the deceased by means of sword. Thereafter, rest of the accused persons, including Appellants Gedua @ Suratha Behera and Puria@ Purusottam Behera, reached at the spot being armed with weapon and assaulted the deceased. The witness categorically states that Raju Dash did not take part in the actual assault.

According to P.W. 20, nine persons participated in the commission of the crime. He clearly states that one of them (Raju) did not take part in the assault. Thus, according to him eight persons being armed with sharp cutting weapons assaulted the deceased but as already stated the deceased was found to have sustained three incised wounds and one laceration. According to the medical report the deceased had also received one gun shot injury (penetrating wound) evidenced by, inter alia, one metallic bullet found struck in one of the lungs of the deceased. The doctor has opined that the cause of death is shock and hemorrhage caused by the injuries to brain, lungs and leg. There is no evidence as to who fired at the deceased causing the bullet injury. It is also not specifically stated as to who caused which injury. On behalf of the Appellant Raju it is submitted that he, being not an assailant, is not liable for the death of the deceased. Learned counsel, arguing on behalf of the Appellants in CRLA No. 349 of 2009, namely, Kalia @ Kasinath Sahoo, Surath @ Gedua Behera and Puria @ Purusottam Behera, submits that in the absence of evidence as to who inflicted which injury and the number of assailants being eight as against three number of incised wounds, it cannot be said that any of the present Appellants had inflicted the injuries on the head affecting the brain and the right leg cutting both the bones of the leg which caused hemorrhage leading to the death of the deceased. Learned counsel for the State, on the other hand, submits that all the accused persons having participated in the commission of the crime by giving a good chase to the deceased and then assaulting him and causing injuries with sharp cutting weapons, all of them are liable for having committed the murder of the deceased.

Though there is no evidence as to who fired at the deceased causing the bullet injuries, there is no room for any doubt that while chasing the deceased one of the member of the group of the assailants fired at the deceased. Despite of receiving the bullet injury the deceased was running for his life but he was chased by the accused persons and ultimately on the spot of assault he was intercepted and then mercilessly assaulted. However, there is no material on record showing that the assailants, named in the F.I.R., were aware of the fact that one of the members of the group of the assailants was armed with a pistol. So, it cannot be presumed that all of them had at least the knowledge that the deceased was likely to be killed by the firearm. As regards the injuries inflicted on the deceased which caused excessive bleeding leading to the death of the deceased there is no evidence as to who inflicted which injury and whether all the assailants or some of them had shared the intention of any individual assailant to cause such injuries. The intention of any of the individual assailants cannot be presumed to have been shared by all. Though it is on record that all the assailants, named in the F.I.R., being armed with KHANDA TALWAR chased the deceased and gave blows with such weapon causing fatal injuries, it cannot be said that all of them had shared the intention to kill the deceased. But the fact that all of their common intention was to cause injuries to the deceased can be very well presumed from the participation of all the assailants in the manner aforestated. Some of them used their respective sharp cutting weapon to inflict injuries on the deceased but some of them did not. However, all of them had chased the deceased from the market area up to the spot being armed with weapons thereby taking part in the commission of the crime.

The following observations made in Afrahim Sheikh and Others Vs. State of West Bengal, may be referred to for guidance in the matter of application of Section 34 of I.P.C. to the facts and circumstances as narrated above:--

"(8) Section 34 , when it speaks of a criminal act done by several persons in furtherance of the common intention of all, has regard not to the offence as a whole, but to the criminal act, that is to say, the totality of the series of acts which result in the offence. In the case of a person assaulted by many accused, the criminal act is the offence which finally results, though the achievement of that criminal act may be the result of action of several persons. No doubt, a person is only responsible ordinarily for what he does and S.38 ensures that; but the law in S.34 (and also S.35) says that if the criminal act is the result of a common intention, then every person who did the criminal act with the common intention would be responsible for the total offence irrespective of the share which he had in its perpetration".

Applying this text to the present case it can be said that since all the Appellants have shared the common intention to beat the deceased and, in furtherance of such common intention, did diverse acts, the total effect of which resulted in the death of the deceased, they would be responsible for causing the death.

Since there is no evidence that all the assailants had shared the common intention of causing death or causing such bodily injury as is likely to cause death, it cannot be presumed that they had the intention to cause death or cause such bodily injury as is likely to cause death. Considering that the assailants were large in number who were armed with sharp cutting weapons and who gave a good chase to the deceased who was at last knocked down by one motorcycle used by some of the assailants and thereafter beaten by means of sharp cutting weapon, the inevitable presumption that can be raised is that each of them did individual act with the knowledge that death was the likely consequence of the criminal act. With this finding it has to be held that the order of conviction of all the accused persons under Section 302 read with Section 34 of I.P.C. is unsustainable, but they are liable to be convicted under Section 304 (Part-II) read with Section 34 of I.P.C.

There may arise a doubt as to whether application of Section 34 of I.P.C. would be permissible in a case where intention is not an essential ingredient. Because, second part of Section 304 of I.P.C. speaks of "knowledge" and does not refer to "intention", whereas Section 34 speaks of "common intention". In Afrahim Sheikh''s case (supra) this question has been answered in the affirmative. There, it is held that the common intention being with regard to the criminal act, i.e., the act of beating and the result of the beating is the death of the victim and if each of the assailants possessed the knowledge that death was the likely consequence of the criminal act, i.e., beating, there is no reason why Section 34 or Section 35 of I.P.C. should not be read with the second part of Section 304 to make each of the assailants liable individually for commission of the offence under Part-II of Section 304 of I.P.C. There is no sufficient evidence to fasten the culpability on any of the accused persons for the use of the explosive substance. Therefore, none of them can be said to be guilty of the offence punishable under Section 9(B) of the Explosive Act, 1884.

In the result, we allow the appeals in part. The order of conviction under Sections 302 and 294 read with Section 34 of I.P.C. and Section 9(B) of the Explosive Act, 1884 is set aside. The Appellants are convicted under Section 304 (II) read with Section 34 of I.P.C. and sentenced to undergo R.I. for ten years with a direction for setting off the period of detention each of the Appellants has already undergone.

Both the appeals are disposed of accordingly.

Vinod Prasad, J.

I agree.