Hig High Court
Case Details
IN THE HIG HIGH COURT OF ORISSA, CUTTACK CRA No.02 of 1998 An appeal from the passed by the Addl. 1996. the judgment and order dated 19.12 dl. Sessions Judge, Khurda in S.T. No.45/ 9.12.1997 45/475 of --------------------- 1. Dinabandhu dhu Dehury 2. Sridhar Behe Behera 3. Tikina Pradh radhan @ Tikam Pradhan 4. Gouranga Pr Pradhan 5. Gagan Pradh radhan 6. Madhab Beh Behera ....... Appella pellants -Versus- State of Odisha ....... Respon spondent For Appellan llant: - Mr. Devashis Pan Advocate Panda For Respond ondent: - Mr. Jateswar Nay Addl. Govt. Advoc Nayak dvocate --------------------- P R E S E N T: THE HONOU OURABLE MR. JUSTICE S.K. SAHOO AND THE HONOURABL BLE MR. JUSTICE CHITTARANJAN DA DASH ------------------------ Date of Hearing: 05.0 ------------------------ ---------------------------------------------- 05.08.2025 Date of Judgment: 21.08 ---------------------------------------------- ---------- .08.2025 ---------- S.K. Sahoo, J. A trivial in ial incident of passing lewd comments to s to a girl during video show in in the village followed by protest by the the family members of the girl irl escalated into an uncalled for tragic sc c scenario of murder of girl’s fat father. Glaring examples are there in scr scripture when the game of di f dice and subsequent humiliation of Dra Draupadi stood out as a pivota votal incident that irrevocably set the sta stage for Kurukshetra War. r. It is crucial to discern which ch minor disagreements have ve the potential to escalate so that it c it can be addressed early which hich would prevent them from snowballin alling into more significant confl onflicts or resentment, impacting relatio ationships or broader social syst systems. The appe ppellants Dinabandhu Dehury (A-1), , Sridhar Behera (A-2), Tikina ina Pradhan @ Tikam Pradhan (A-3), Gou Gouranga Pradhan (A-4), Gagan agan Pradhan (A-5) and Madhab Behera era (A-6) along with Raja @ @ Rajkishore Dehuri preferred this a is appeal, however during pen pendency of the appeal, Raja @ Rajk Rajkishore Dehuri expired and a d as such, as per order dated 18.12.200 .2000, the Criminal Appeal has been directed to be abated in respect ect of the said appellant. Thus Thus, this Criminal Appeal survives o s only in respect of six appel ppellants, namely, Dinabandhu Dehury ry (A-1), Sridhar Behera (A-2) 2), Tikina Pradhan @ Tikam Pradhan an (A-3), Gouranga Pradhan (A-4), Gagan Pradhan (A-5) and M Madhab Behera (A-6). The appe ppellants along with others, all total sixt sixty four accused persons faced aced trial in the Court of learned Addl. Se . Sessions Judge, Khurda in S. S.T. No.45/475 of 1996 for commiss ission of offences under sectio ctions 147, 148, 337/149 and 302/149 49 of the Indian Penal Code (he (hereinafter ‘I.P.C.’) on the accusation t on that on 24.08.1994 at about out 8.00 a.m. at village Tandalo under Be r Begunia police station, they w were the members of unlawful assemb mbly and committed the offen offence of rioting being armed with d th deadly weapons and in pros rosecution of the common object, they ey pelted brickbats so rashly a ly and negligently as to endanger huma uman life and thereby caused hurt to Ramesh Naik (P.W.6), Madhu Behera (P.W.15) and one A e Akhaya Kumar Panda and also com ommitted murder of Jaduman mani Behera (hereafter ‘the deceased ased’) by intentionally causing h ing his death. Further, r, A-1 Dinabandhu Dehury, A-2 Sridhar Behera, A-3 Tikina Pradhan @ Tikam Pradhan, A-4 Gou Gouranga Pradhan, A-5 Gagan an Pradhan and A-6 Madhab Behera alon along with accused Tiki Naik an and Raja Kishore Dehury (since dead) ead) were charged for the offenc ffence under section 302 of I.P.C. for assa assaulting and committing murd urder of the deceased by intentionally ca ly causing his death and were ere further charged for commission o n of the offence punishable un e under section 337 of I.P.C. for causing ng hurt to Ramesh Naik (P.W.6) .6), Madhu Behera (P.W.15) and one A e Akhaya Kumar Panda by pelti pelting brickbats so rashly and negligently ntly so as to endanger human li an life and personal safety of others. The learne arned trial Court vide impugned judgmen ment and order dated 19.12.1 12.1997, while acquitting the other ac r accused persons of all the ch charges as aforesaid, found A-1 Dinab inabandhu Dehury, A-2 Sridhar dhar Behera, A-3 Tikina Pradhan @ @ Tikam Pradhan, A-4 Gouran uranga Pradhan, A-5 Gagan Pradhan an and A-6 Madhab Behera and and Raja Kishore Dehury (since dead) ad) guilty under sections 147, 47, 148, 302/149 of the I.P.C. and sent sentenced each of them to und undergo rigorous imprisonment for life ife for the offence under section ction 302/149 of the I.P.C., but no se separate sentence has been aw n awarded for the offences under section ctions 147 .C. and 148 of the I.P.C. Prosecution Case: 2. The prose rosecution case, as per the first inform formation report (hereinafter ‘th r ‘the F.I.R.’) (Ext.1) lodged by Madhu Behera (P.W.15), in short, is rt, is that on 22.08.1994 at about 8.00 .00 p.m., some children of the the village Tandal Bada Sahi were arran rranging a video show near a ma a mandap and Basanti Behera (P.W.10), , who is the daughter of the the deceased and also niece of P.W.15 .15 along with other children w n was witnessing the same. During such uch video show, A-1 passed so some lewd comments to P.W.10 for for which P.W.10 left the plac place of video show and came to repo eport the matter to P.W.13 M 3 Mathura Behera, the younger broth rother of P.W.15, who in turn urn informed it to the father of A-1 and and asked him to settle the ma matter. Accordingly, in the evening hou hours on 23.08.1994, a meetin eeting was convened to settle the matte atter, but due to quarrel betwee tween A-1 and P.W.13, the matter could uld not be resolved, rather the the people of Bada Sahi threw brick rick bats towards the basti of of the informant (P.W.15). It is further her stated in the F.I.R. that on on that very night, the people of Adivasi asi Sahi, Tandal Sabarna Sahi, ahi, Nua Sahi and Kachera convened a m a meeting and on the next day day morning i.e. on 24.08.1994 at abou bout 8.00 a.m., the people of of all those four basti (slum) includin uding the accused persons bein being armed with deadly weapons like ike Farsa, Kanta, Katari etc. fo . formed an unlawful assembly, came e to the basti of P.W.15, demo emolished and ransacked the houses of of P.W.15 and other persons of s of their basti and assaulted basti peopl eople with the weapons of offenc ffence with which they were armed with. S th. Seeing the aggressive mood ood of the accused persons, the decease eased out of fear fled away from from his house and took shelter in the ho e house of Pandari Naik (P.W.3) .3) by bolting the door from inside. Ho However accused Bidyadhar Sahu of village Kachera detected cted the presence of deceased ased inside the house of P.W.3 and inform nformed it to the other accused used persons. Some of the accused pe d persons forcibly entered into into the house of P.W.3 being armed med with weapons and took th k the deceased to the nearby paddy fiel field and assaulted him with w th weapons and after committing murder rder, they threw his dead body ody in the paddy field. It is also stated t ed that at the time of such ass assault, A-1 and A-2 were armed with h Katari, A-3 with Tangia, A- -4 with Farsa, A-5 with Kunta and A A-6 with Farsa. P.W.16 Gi 6 Girija Prasad Das who was working as as C.I. of Police at Khurda re received information through V.H.F. H.F. from Begunia police statio ation that a rioting had taken place in in village Tandal and one man man of that village had died in the rio riot and accordingly, he proc proceeded to village Tandal with forc force and reached there at 11 11.30 a.m. and there on the oral rep report of Madhu Behera (P.W.1 .W.15), he drew up a plain paper F.I.R. I.R. and it was read over and e d explained to P.W.15, who affixed his his L.T.I. and the written repor eport was sent to Begunia police station ion where one N.C. Sethy, Of Officer in-charge of Begunia police s e station registered Begunia P ia P.S. Case No.95 dated 24.08.1994 94 under sections 147/148/149 /149/336/337/380/427/307/302 of I.P.C I.P.C. and P.W.16 himself took u ok up investigation. 3. During the the course of investigation, P.W.16 foun found the dead body of the dec deceased was kept on the street locally ally called Jemabanta Dei. He He held inquest over the dead body o dy of the deceased in presenc sence of the Addl. Tahasildar, Khurda urda and witnesses and prepar pared inquest report Ext.27. On 24.08.19 8.1994 he sent the dead bo body of the deceased for post-m mortem examination through ugh a constable as per the dead body c dy challan (Ext.6) also prepared ared the spot map (Ext.28). On 24.08.19 8.1994 he also sent requisitions s to Kantabad P.H.C. and Khurda Hospi ospital for medical examination tion in respect of the injured persons a ns as per Exts.16/2 to 23/2. On 24.08.1994 he also seized the he blood- stained earth and sam sample earth from the paddy field of Pad Padmalav Sahu in presence of of the witnesses as per seizure list Ext Ext.11/1. On 24.08.1994 he als also made a house search of A-1 and se d seized a Katari as per seizure ure list Ext.12/1 in presence of the witn witnesses. On 24.08.1994 he als also searched the house of accused Mura uralidhar Naik and recovered a ed a ‘gupti’ and seized the same as per s er seizure list Ext.13/1. On 24.0 24.08.1994 he also seized two aluminium nium pots (Dekchi) and one leaf leaf of a door from the village danda in fr in front of the house of Mangu nguli Naik as per seizure list Ext.25/ .25/1. On 24.08.1994 he also s lso seized 20 nos. of small and big size size brick bats and some split plit bamboos from the village danda of of village Jemabanta Dei in pre presence of the witnesses as per seizu eizure list Ext.4. On 25.08.199 .1994 he sent injury requisition (Ext.2 xt.29) in respect of the injured ured Ramesh Naik (P.W.6) to Kantabad ad P.H.C. and also issued anoth nother requisition (Ext.30) in favour of of P.W.15 to Begunia hospital. H . He also issued injury requisition (Ext. Ext.31) in respect of the injure jured Akhaya Kumar Panda, seized a a blood- stained lungi, two red red coloured towels, one yellow coloured red saree on production by Bud Budei Naik at Khurda medical campus a us as per seizure list Ext.24/1 4/1 and sent M.O.I and M.O.II to the M e Medical Officer (P.W.8), who ho conducted post mortem examination ation over the dead body of dece deceased seeking for opinion as to wheth hether the death of deceased cou could be possible by such M.Os. P.W.16 ha 6 handed over the charge of investigat igation to P.W.17 Braja Kishore ore Patra, Circle Inspector of Police, Khur Khurda on 10.11.1994, who arr arrested some of the accused person rsons and forwarded them to to Court. He also examined some witn witnesses, arrested more accu ccused persons on 23.01.1995, seize eized the command certificate ate from Havildar Balaram Mohanty, wh who had carried the dead bod body of the deceased to Government Ho t Hospital, Khurda for post mor mortem examination as per seizure list list Ext.9 and on completion of investigation, submitted charge rge sheet against the appellant llants along with other accused persons ons under sections 147/148/30 8/302/307/455/380/323/324/427 ead with read .C. section 149 of I.P.C. Framing of Charges rges: 4. On receip eceipt of the charge sheet, the case case was committed to the C e Court of Session following due proc rocedure, where the learned ed trial Court framed charges agains ainst the appellants as aforesa resaid. The appellants pleaded not guilt guilty and claimed to be tried an d and accordingly, the sessions trial proc procedure was resorted to estab stablish their guilt. Prosecution Witnes tnesses, Exhibits & Material Objects: 5. In order t er to prove its case, the prosecution exa examined as many as nineteen en numbers of witnesses. P.W.1 Jh Jhuni Behera, who is the daughter o er of the informant (P.W.15) 5), P.W.6 Ramesh Naik and the info informant (P.W.15) himself are are the eye witnesses to the occurrenc rence and they supported the pr e prosecution case. P.W.2 Pan Panu Parida stated to have seen the ac e accused persons damaging his g his house. He further stated that the ac e accused persons had enmity ity with the villagers of Tandal and his his house along with the belon elongings was also ransacked by the ac e accused persons. He is a witne itness to the seizure of blood stained ear earth and sample earth from th the land of Padmalav Sahu as per seizu eizure list marked as Ext.11, se , seizure of blood stained Katuri from the the house of Dinabandhu Dehur ehuri as per seizure list marked as Ext.1 xt.12 and blood stained Gupti f pti from the house of accused Muli Naik aik as per seizure list marked as d as Ext.13. P.W.3 Pa Pandari Naik, who is a co-villager o er of the deceased has state tated that at the time of occurrence ence, the appellants along with with other accused persons being armed rmed with different deadly weap eapons, chased the deceased and seein eeing the violent mood of the a he accused persons, he fled away throug rough the backside of his house ouse and he came back after three days ays to his house and found his is house to have been razed to the grou ground by ns. the accused persons. P.W.4 Bud Budhei Dei, wife of P.W.11 is a co-villa villager of the deceased and sh she has stated that she found the ac e accused persons to have asse assembled at the house of the deceased sed being armed with different rent deadly weapons. She further state tated that while some accused sed persons were breaking the house se of the deceased, a group up of accused persons came to her h er house, damaged her house a se and cut the green trees from her bar bari. She further stated that w t when she along with her husband Cha Chaitanya (P.W.11) went out o ut of the house, the accused persons r ns rushed towards her husband and and accused Kaibalya dealt a Katur aturi blow on the right side scap scapula of her husband causing bleeding ing injury. She further stated th d that when she went to rescue her hus husband, accused Bhagaban Behera dealt a lathi blow (thenga) o a) on her head, accused Bilua d ua dealt a lathi blow to the right side wri wrist and backside of the palm palm of her hand for which she sus sustained bleeding injury on her her head and fell down on the ground an d and lost her sense. P.W.5 Su Surenda Dehuri, who is a co-villager er of the deceased, has stated ted that he found the accused persons to s to have assembled at the h e house of the deceased being armed med with deadly weapons. He s He stated that the accused persons chase hased the deceased and his fa s family members pelting brick bats an and the accused persons in a in a body went inside the house of Pandar ndari Naik (P.W.3), pulled down own his house and damaged the same, me, which he witnessed from t m the backside of his house. Thereafte after, the accused Bidyadhar Sa Sahu climbed up the roof of P.W.3, pull pulled out the straws from the r he roof to find out who had taken shelter elter there in the house of P.W. .W.3 and all the accused persons went ent there and participated in t in the damage and destruction. He ha has also narrated the reasons sons of ill-feeling between the villagers ers of his village as well as the the villagers of Bada Saar Sahi and Sa d Sabarna Sahi belonging to th the accused persons. He further state tated that the dispute was pacifi acified on the intervention of Grama Rakh akhi. P.W.7 Ku Kulamani Behera, who is the father o er of the deceased, has stated ated that while the incident occurred, h d, he had been to the house of e of Pandari Naik (P.W.3) and on hearin earing the hue and cry near hi r his house, he came back to his hous ouse and found the accused p d persons to have assembled near his his house being armed with lat lathi, bhali, kanta, pharsa and other d er deadly weapons. He further s er stated that while he was going to the the rescue of the wife of his yo youngest son, Mathura, who had delive elivered a baby prior to the oc occurrence, accused Maharagia (since nce dead) pulled him out of his his house and accused Jogi Behera dealt alt a lathi blow to his left forear rearm and thereafter accused Bhagaban ban poked two blows to his lef left scapula, for which he fell down o n on the ground. He further st r stated that all his family members alon along with children ran to the ho e house of Pandari Naik (P.W.3) to take sh e shelter. He further stated that that the accused persons ransacked his g is grocery shop completely. P.W.8 Dr Dr. Bholeswar Panda was the Pae Paediatric Specialist of G.B.S. S. Hospital, Khurda, who conducted cted post mortem examination tion over the dead body of the decease ased and proved the P.M. repor eport Ext.14. P.W.9 Dr Dr. Harihar Patnaik, who was the M e Medical Officer, Kantabad Add Additional P.H.C. treated the injured pe persons, namely, Budhei Dei ( ei (P.W.4), Kulamani Behera (P.W.7), C Chaitan Naik (P.W.11), Basan santa Naik (P.W.18), Kumar Naik (P.W.19 W.19) and others on police requ requisition and proved the injury repor ports. He further stated that al t all the injuries embodied in the reports orts were simple in nature. He f He further stated that though the injured red Dama Majhi was referred by d by the police for medical examination, b on, but he refused to be medica dically examined. He proved the certific tificate to that effect vide Ext.23 t.23. P.W.10 B Basanti Dei, the daughter of the dece deceased, has stated regarding ding the misbehaviour shown to her r by A-1 during the video show show in the village and there was an alter altercation between his father a er and uncle with A-1 in the village me meeting. She further stated t d that she had been to the agriculture lture field when the incident oc t occurred and on hearing the news reg regarding the attack on her ho house by the accused persons, she ret returned back and found that hat her deceased father was being chas chased by the accused persons sons, being armed with deadly weapon pons like Katuri, Kanta, Axe an and Bhujali. P.W.11 Ch Chaitan Naik, who is one of the injure jured, has stated that on the d he date and time of occurrence, the ac e accused persons after destroy oying the houses in Sana Sara Sahi, ca i, came to his house and started rted destroying the green trees of his bar bari. Out of fear, he along with with his family members wanted to take s ke shelter in the house of P.W. P.W.3, but they were confronted by the the some accused persons bein being armed with deadly weapons. At that that time, accused Kaibalya Deh Dehury dealt one blow by means of a K a Kati on his right foot causing sing a bleeding injury, accused Tiki Naik Naik dealt another blow by mea means of a Farsa on his right forearm ca m causing bleeding injury and t nd thereafter, A-3 dealt a tangia blow ow on his right hand shoulder der joint causing serious bleeding injur injury. He further stated that wh t when his wife Budhei Dei (P.W.4) came me to his rescue, she was also lso assaulted for which she sustained ble d bleeding injuries on her head a ad and on her right palm on the dorsal a al aspect. He further stated tha that he saw the deceased running towar wards the field after coming out out of the house of Pandari Naik (P.W.3) .3) being chased by A-1, A-2, A-3, A-4, A-5, Raja Dehuri (dead), Tik Tiki Naik and others being arm armed with deadly weapons. P.W.12 P 2 Prafulla Majhi, who is a co-villager o er of the deceased, claimed to
Facts
d to have seen the first part of the occu ccurrence regarding demolition tion of the house of the deceased and ch d chasing the deceased towards ards the field by the accused persons. H s. He is a witness to the seizu eizure of blood stained clothes produc duced by Budhei Dei (P.W.4) as as per seizure list Ext.24. P.W.13 M 3 Mathura Behera, who is a co-villager ger of the deceased, has state tated regarding the misbehaviour show shown to P.W.10 during the vid e video show and he is a witness to the the village meeting over the said said issue. He further stated that on the the date and time of occurren rrence, he had been to his paddy field a ld and on hearing hue and cry cry in the village, he rushed to the spo spot and found that some per persons of Bada Saara Sahi were dam damaging their houses and out out of fear, he did not enter into the v e village, rather rushed to Begu Begunia police station to report the matte atter and sought police assistan stance on the issue immediately. P.W.14 Magi Dehuri is a witness to the seiz seizure of split bamboos and br d brick bats as per seizure list Ext.4. He He is also a witness to the seiz seizure of aluminium pots as per seizu eizure list Ext.25. P.W.16 Gi Girija Prasad Das, who was the C.I. of . of Police at Khurda, was the in se. initial Investigating Officer of the case. P.W.17 7 Braja Kishore Patra was the C.I. of of Police, Khurda, who took ov over the charge of investigation from P m P.W.16 and submitted charge . arge sheet against the accused persons. P.W.18 Ba 8 Basanta Naik is an injured witness who ho stated that the accused pers persons came in a body, damaged the h he houses belonging to differen erent persons of his village and durin uring the occurrence, he was a as assaulted by Naba Naik, Sarat Naik, aik, Bilua Naik by means of lat f lathi and accused Kailash Naik dealt a lt a katuri blow to his right leg c eg causing bleeding injury. P.W.19 Ku 9 Kumar Naik is another injured witness ess to the occurrence who stat stated that on the date of occurrence ence, the accused persons cam came in a body and damaged the house ouses and other properties of h of his village and in course of such inc incident, accused Niranjan Nai Naik assaulted him by means of a lathi athi to his left ear causing bleed leeding injury. The pros osecution proved thirty one numbe mbers of documents as exhibi hibits. Ext.1 is the Formal F.I.R, Ext.2 t.2 is the Chemical Examinati ination Report, Ext.3 is the Sero erological Examination Report, , Exts.4, 5, 9, 11/1, 12/1, 13/1, 24/ 24/1 and 25/1 are the seizure l re lists, Ext.6 is the dead body challan, E , Ext.7 is the spot visit report, ort, Ext.8 is the forwarding report of S.D. S.D.J.M to State F.S.L., Ext.10 10 is the command certificate, Ext.14 14 is the post-mortem report, , Ext 15 is the reply to the query by P by P.W 8, Ext.16 is the injury ce y certificate of Chaitan Naik (P.W.11), Ex Ext.17 is the injury certificate o te of Kartik Naik, Ext.18 is the injury cert certificate of Basant Naik (P.W.1 .W.18), Ext.19 is the injury certificate of B of Budhei Dei (P.W.4), Ext.20 t.20 is the injury certificate of Kumar mar Naik (P.W.19), Ext.21 is is the injury certificate of Kulamani Behera (P.W.7), Ext.22 is the the injury certificate of Lochan Behera, ra, Ext.23 is the certificate of Da f Dama Majhi, Ext.26 is the F.I.R., Ext.27 t.27 is the inquest report, Ext.2 xt.28 is the spot map, Ext.29 is the the injury requisition of Rame amesh Naik (P.W.6), Ext.30 is the he injury requisition of Madhu dhu Behera (P.W.15) and Ext.31 is the the injury requisition of Akshay y Kumar Panda. The prose rosecution also proved two numbers of m f material objects. M.O.I is the uri. he Gupti (knife) and M.O.II is the Katuri. Defence Plea: 6. The defen efence plea of the appellants is one of com complete denial to the prosecu ecution case and they further pleaded to d to have been entangled falsely . lsely in the case due to previous rivalry. Findings of the Tria Trial Court: 7. The learn arned trial Court, after assessing the o e oral as well as documentary ary evidence on record, came to hold th d that the evidence of P.Ws.1, 6 1, 6 and 15 to the effect that on the d e date of occurrence, the appe ppellant Raj Kishore Dehury (since dead ead), A-1, A-2, A-3, A-4, A-5 an 5 and A-6 being armed with Lathi, Farsa, rsa, Kanta and Bhali etc. commi mmitted murder of the deceased over th r the land of Padmalav Sahu, is , is clear and convincing and it did not fin t find any reason to discard the their evidence on this score. While bel believing the evidence of P.W.3 .W.3 Pandari Naik, learned trial Court ha t has held that merely because use after escaping from the house, he d e did not go to the police statio ation to report the matter, is not a grou ground to discard his evidence o ce on this score. The learned trial Court r urt relying on the evidence of P of P.W.10, has observed that the evide idence of P.Ws.1, 6 and 15 find find support from the evidence of P.W.10 .10 so far as chasing to the dec deceased by the accused persons. It wa was held that simply because P se P.W.6 was examined four to five days days after the occurrence cann annot be a ground to discard his ev evidence particularly when no nothing has been brought out in his his cross- examination to impea peach his testimony. It was further hel held that the evidence of P.W P.W.6 and P.W.15 indicate that some e of the accused persons we were also armed with lathi and in in such circumstances, the po e possibility that the injury no.(ix) might ight have been caused by lat lathi cannot be ruled out. Relying o g on the evidence of the eye w ye witnesses, i.e. P.Ws.1, 6 and 15, which hich finds support from the evi evidence of other witnesses, the learne rned trial Court concluded that that on the date of occurrence, accuse cused Raj Kishore Dehury (sinc since dead), A-1, A-2, A-3, A-4, A-5 an and A-6 formed an unlawful ful assembly and being armed with th deadly weapons, committed ted murder of the deceased in prosecut ecution of their common object ject. The learned trial Court further obs observed that the names of th f the seven appellants find place in the the F.I.R. lodged at the spot wit t within one hour of the occurrence, which hich rules out possibility of any any false implication of these appellants a ts at that stage and according rdingly, found them guilty of the of offences charged. The learn earned trial Court relying on the eviden idence of P.Ws.7, 9, 18 and 19 d 19, came to hold that the evidence of e of these witnesses cannot be be accepted to come to a definite conc conclusion that at the time of i of incident, any of the other accused pe d persons except the seven { {the present appellants along with R Raja @ Rajakishore Dehury ry (since dead)} referred to above, s e, shared common intention in n in prosecution of the common object ect of the unlawful assembly an y and accordingly, acquitted the other ac r accused persons of all the cha charges. The learned trial Court held that that there is no evidence that t due to pelting of stones by the ac e accused persons, any witness ess sustained injury and thus, the charge rge under section 337/149 of I.P f I.P.C. fails to the ground. Contentions of the P the Parties: 8.
Legal Reasoning
. Thus, we are of the view that the learne arned trial Court has rightly plac placed reliance on her evidence. P.W.6 Ramesh Nai aik: 12. He stated ated that on the occurrence day, he wa was at a distance of 25 ft. from from the house of the deceased and the the house of P.W.3 was at a a distance of 50 ft. from his house. se. While returning from his cu s cultivable land, he found the accused pe d persons were armed with dead deadly weapons and assembled at the ho e house of the deceased and co completely demolished his house. He f He further stated that then the the accused persons came to his hous ouse and started demolishing t ng the same and when he protested, h d, he was assaulted by two acc accused persons, namely, Brundaban Dehury and Niranjan. He fur further stated that when accused Bidy dyadhar Sahu climbed up the the roof of P.W.3, made a hole on the tha thatched roof, located the dec deceased and his family members insid inside the house of P.W.3 and t nd then shouted and drew the attention ion of the co-accused persons a ns about the presence of the deceased ed inside. He further stated tha that the accused persons started demo molishing the house of P.W.3 fo 3 for which the deceased fled away throu rough the backdoor and all the a the appellants along with appellant Raja D ja Dehury (dead) chased the d e deceased being armed with Katuri, ri, Farsa, Kanta, Tangia and la d lathi. The deceased ran towards the la e land of Padmanav Sahu whe where he was overpowered. The appe appellants brutally assaulted the the deceased with the arms, which they they were holding. In the cro cross-examination, P.W.6 has stated th d that he was examined by the the I.O. between four to six days. He He stated that he was sent to the hospital by the police for m r medical examination on the the following day of the incident. He f e further stated that he could uld not say which of the accused assault aulted on which part of the bo e body of the deceased. He further sta stated to have witnessed the en e entire incident sitting near his house. It has be been confronted to him and proved th d through the I.O. (P.W.16) tha that he had not stated before police th that the accused persons dem demolished the house of the deceased ed and he had also not stated ated that accused Bidyadhar told the the other accused persons to c to come to the house of P.W.3 stating th g that the deceased had concea cealed his presence there and that he ha e had also not stated that the the other accused persons apart from from the appellants chased the the deceased. Learned c ed counsel for the appellants contended nded that since P.W.6 was exam xamined by the I.O. at a belated stage a ge and no cogent explanation is n is coming forth in that respect, his ev evidence should be viewed with with suspicion. On the ot e other hand, the learned counsel for the the State argued that there is n is no evidence on record as to when P.W. P.W.6 was examined by the I.O. I.O. and no question has been put to th o the I.O. for delayed examinat ination of P.W.6 and thus, the defence c ce cannot take any advantage o ge of the delayed examination, if any. It appears ears that not a single question has been en put by the defence to the I.O e I.O. (P.W.16) as to when he examined ned P.W.6 and why there was de s delay in recording his statement. Learned c ed counsel for the appellants for canvassi assing his point on delayed disc disclosure emphatically placed reliance ce in the case of Ganesh Bh Bhavan Patel (supra), wherein the H e Hon'ble Supreme Court has he held as follows:- “15……Del Delay of a few hours, simpliciter, i r, in recording ing the statements of eye witnesses ma may not, be e itself, amount to a serious infirmity i ity in the prosec osecution case. But it may assume such uch a character cter if there are concomitant circumstance ances to sugges gest that the investigator was deliberate rately marking t ng time with a view to decide about th t the shape to to be given to the case and the ey eye witnesses ses to be introduced.” In the ca case of Brahmananda Nanda (supra upra), the Hon’ble Supreme Cou Court held as follows:- “2……..Tho Though according to this witness, she sa e saw the murd urderous assault on Hrudananda by th y the responden ndent and she also saw the responden ndent coming ou g out of the adjoining house of Nityanand anda where the the rest of the murders were committed itted, she did no id not mention the name of the responden ndent as the a e assailant for a day and a half. Th The murders w rs were committed in the night of June 13 e 13, 1969 and and yet she did not come out with th h the name of of the respondent until the morning o ng of June 15, 15, 1969. It is not possible to accept th t the explanatio ation sought to be given on behalf of th f the prosecutio cution that she did not disclose the nam name of the res respondent as the assailant earlier tha than June 15, 15, 1969 on account of fear of th f the responden ndent. There could be no question of an f any fear from rom the respondent because in the firs first place, the the respondent was not known to be be a gangster hom ter or a confirmed criminal about whom people wo would be afraid, secondly, the police ha e had already a y arrived at the scene and they wer were stationed ned in the clubhouse which was jus just opposite t ite to the house of the witness and thirdly irdly, A.S.I. Ma Madan Das was her nephew and he ha had come to t to the village in connection with the cas case and had ad also visited her house on June 14 14, 1969. It It is indeed difficult to believe that th t this witness sh s should not have disclosed the name o e of the respo espondent to the police or even to AS ASI Madan D Das and should have waited till th l the morning ng of June 15, 1969 for giving out th t the name of t of the respondent. This is a very seriou rious infirmity ity which destroys the credibility of th f the evidence o ce of this witness.” In the cas case of Gunduchi Patnaik (supra), a D a Division Bench of this Court ha has held as follows:- “14. We We would next come to the evidence o ce of P.W.7. N . Neither P.W.7 had spoken about th t the presence nce of P.Ws.2 and 6 on the spot no t nor P.Ws.2 an 2 and 6 had spoken about the presence o ce of P.W.7 at at the time of occurrence. It would b ld be seen from from the evidence of the Investigatin ating Officer th r that this witness was examined in th n the course of e of investigation as late as on August 25 t 25, 1979. Th There was no evidence that he ha had disclosed sed the occurrence to any one until h il his d belated examination in the course of o investigat igation. If the police officer had come t e to the scen ene of occurrence on August 12, 1979 an 9 and P.W.7 ha had witnessed the occurrence, he cou could have volunteered vo a statement to the th Investigat tigating Officer. No explanation whatsoeve oever had been een given by P.W.7 as to why he did no d not disclose t se the occurrence to anyone. He could no d not have had had a sense of loss after the Investigatin ating police offi officer had come to the scene. There wa e was no eviden idence that any of the accused persons ha s had threatene ened him at the time of assault on th n the person o n of the deceased not to disclose th the occurrenc rence to anyone. The learned Session sions Judge has has observed that the general tendency o cy of the peopl ople of the present day is to remain awa away from polic police interrogation and dusty law court ourts' one of wh f which was being presided over by him a im at the trial. ial. No reasonable explanation had bee been offered b d by P.W.7 as to why he made a lat late disclosure sure about the occurrence at the stage o ge of investigat igation. In such circumstances, it would b ld be unsafe an e and hazardous to accept the evidence o ce of P.W.7 wit with regard to the occurrence.” In the ca case of Lahu Kamlakar Patil (supra pra), the Hon'ble Supreme Cou Court held as follows:- “22. From From the aforesaid grounds, the primar imary attack of of the learned Counsel for the Appellant llants is that the t there has been delay in the examinatio ation of the sa said witness and he has contributed fo d for such dela delay and, hence, his testimony should b ld be discredite dited. 23. In M Mohd. Khalid -Vs.- State of W.B. .B. : (2002) 2) 7 Supreme Court Cases 334, , a contention ntion was raised that three witnesse sses, namely, ly, P.Ws.40, 67 and 68, could not b t be termed to d to be reliable. Such a contention wa was advanced ced as regards P.W.68 that there ha had been del delay in his examination. The Cou Court observed ved that mere delay in examination of th f the witnesses sses for a few days cannot in all cases b es be termed fa d fatal so far as prosecution is concerned rned. There ma may be several reasons and when th n the delay is e is explained, whatever the length of delay elay, the Cour ourt can act on the testimony of th f the witnesses sses, if it is found to be cogent an and le. credible. xxx xxx xxx xxx 26. From rom the aforesaid pronouncements, it it is vivid that that witnesses to certain crimes may ru y run away from from the scene and may also leave th e the place due due to fear and if there is any delay i lay in their exam examination, the testimony should not b ot be discarded ded. That apart, a Court has to keep ep in mind tha that different witnesses react different rently under diff different situations. Some witnesses get get a shock, so , some become perplexed, some sta start wailing an g and some run away from the scene an e and yet some me who have the courage and convictio iction come forw forward either to lodge an F.I.R. or ge r get themselve elves examined immediately. Thus, s, it differs fr from individuals to individuals. Ther There cannot be t be uniformity in human reaction. Whi While the said p aid principle has to be kept in mind, it , it is also to be o be borne in mind that if the conduct o ct of the witne itness is so unnatural and is not in accor ccord with acce acceptable human behaviour allowing o ng of variations ions, then his testimony become omes questiona ionable and is likely to be discarded.” In the cas case of Madan Kanhar @ Mitu -Vrs.- - State of Orissa reported ted in (2025) 98 Orissa Criminal Re l Reports 781, this Bench has o as observed as follows: “13. In th n the instant case, the testimony of P.W.5 .W.5, the supp upposed eyewitness, fails to meet th t the standard ard of a ‘sterling witness’, as laid down b n by the Hon'b on'ble Supreme Court. The Court has he held that, an an eyewitness must be of the highes ghest quality an y and credibility, and their version shoul hould be so uni unimpeachable that it can be accepted a ed at its face ce value without hesitation. A sterlin erling witness m ss must provide a natural and consisten istent nt account that withstands rigorous ross- cross examinati ination and aligns with the overall case o se of the pros prosecution. A major flaw in P.W.5 W.5's statement ent is her delayed disclosure. She claim laims to have w ve witnessed the Appellant assaulting th g the deceased ictim sed with an axe and even heard the victim cry out, ut, "MITU HANI DELA." Despite alleged gedly seeing su form such a brutal act, she failed to inform anyone ab e about it until six days after the inciden ident. This dela delay in disclosure raises serious doubt oubts about the the credibility of her testimony. If she ha e had genuinely nely witnessed a murder, her silence ce is highly un unnatural and unexplained. The reaso eason given tha that she was threatened by the Appellan ellant appears w rs weak, as she was in the company o ny of two othe thers, who were also not examined a d as witnesses sses. Their absence in the trial furthe rther weakens ns her statement, as the prosecutio ution failed to b to bring forward independent witnesses t es to substantia antiate her claims. There is no evidence o ce on record th that the Appellant was having crimin minal backgroun round. The police was coming to th the village fro from the date of occurrence in connectio ction with the i he investigation of the case. Therefore, re, it is difficult icult to accept that, on account of threat reats given by by the Appellant, there was delaye layed disclosure sure. If, in spite of presence of the polic police in the vill village, she was in a state of fear as th s the Appellant lant had not been arrested, then how he her fear dispe ispersed when she gave her statement t nt to police six six days after the occurrence, as by tha that time the the Appellant was in large, which create eates doubt abo about the truthfulness of her version.” After goi going through the decisions cited b d by the learned counsel for for the appellants to discard the eviden idence of P.W.6 on the ground und of his delayed examination, we are are of the view that the testimo timony of a witness cannot become unr unreliable merely because ther there is a delay in the examination of n of such witness by police d e during investigation. Question of de delay in examining a witness ess during investigation is material only only when there are concomita itant circumstances to indicate and su d suggest that some unfair prac practice has been adopted by the investi estigating agency for the purp purpose of introducing a witness to to falsely support the prosecuti cution case or the investigator was delibe eliberately marking time with a h a view to decide about the shape to be be given to the case. Delay i ay in examination of witnesses is a va a variable factor which would de depend upon a number of circumstance ances like non-availability of wit f witnesses, the investigating officer bein being pre- occupied in some s e serious matters, the investigating ng officer me spending his time in arresting the accused, who o were absconding, being oc occupied in other spheres of investigat tigation of the same case, whic which may require his attention urgentl ently and importantly etc. How owever, in a case where commission of n of crime is alleged to have ve been seen by witnesses who are are easily available, a prudent ent investigator would give to the exami amination of such witnesses es precedence over the evidence of of other witnesses. (Ref: (20 (2005) 9 Supreme Court Cases 283: 83: Sunil Kumar -Vrs.- State tate of Rajasthan;(2012) 7 Supreme me Court Cases 646: Shyama amal Ghosh -Vrs.- State of West Be t Bengal; (2015) 9 Supreme eme Court Cases 588: V.K. Mishra ra -Vrs.- State of Uttarakhan hand) The pros prosecution is under obligation to offer to explanation for the the delay in recording the statement nt of an important witness a s and if the explanation is reasonabl able and plausible, testimony ony of the witness cannot be cons onsidered unacceptable because ause of his delayed interrogation. Apart part from this, the defence mus must put specific questions to the investi estigating officer for the delay lay in recording the statement and mus ust seek explanation from him him. The Hon’ble Supreme Court in the c he case of Banti @ Guddu -Vr Vrs.- State of M.P. reported in (20 2004) 1 Supreme Court Cas Cases 414 and State of U.P. -Vrs.- Satish reported in (2005) 05) 3 Supreme Court Cases 114 ha has held that unless the inves vestigating officer is categorically asked ked as to why there was dela delay in examination of the witnesses sses, the defence cannot gain ain any advantage therefrom. It cannot b ot be laid down as a rule of uni f universal application that if there is any any delay in examination of a f a particular witness, the prosecution v n version becomes suspect. It . It would depend upon several factors. rs. If the explanation offered fo d for the delayed examination is plausib usible and acceptable and the Co e Court accepts the same as plausible, th e, there is no reason not to a o accept the version and rely on it if it if it is trustworthy. Therefore fore, in the case in hand, when P.W. .W.6 has stated that he was e as examined by the I.O. between four our to six days and no questio estions have been put to the I.O. (P. (P.W.16) regarding delayed exa examination of P.W.6 and there is no ev evidence on record as to actua ctually when P.W.6 was examined by the the I.O., we are not able to a to accept the challenge made by the le e learned counsel for the app appellant regarding the acceptability o ty of the evidence of P.W.6 o 6 on the ground of his delayed examin mination. P.W.6 is an independ endent witness and he was having no ho o hostility with the appellants o ts or any of the accused persons to d to depose falsely against them m. His evidence has not been shaken in n in spite thorough and rigorous rous cross-examination. There ar are no such major contradictions in the evidence of P.W.6. The learn earned counsel for the appellants argue gued that P.W.6 claimed to hav have witnessed the entire incident sitting itting near his house as he was d as dealt a lathi blow by accused Niranjan jan on his right scapula, but th t the spot map (Ext.28) would indicate icate that there are houses in f in front of his house on the other side ide of the road and spot as sho shown in Ext.28 was at such a place ce that it could not have been een possible on the part of P.W.6 to noti notice the assault on the deceas ceased sitting near his house. The entire ntire argument on this score falls to the g he ground as nothing has been een brought out by way of cross-exami amination that sitting near his h his house, P.W.6 could not have witnesse essed the assault rather P.W.6 W.6 has stated that his house situates ates at a distance of 50 to 60 f 60 feet away from the land of Padmanav S av Sahu. It is argue rgued by the learned counsel for the appe appellants that though P.W.6 ha 6 has stated that accused Niranjan dealt alt a lathi blow to his right scap scapula for which he sat down due to pai pain, but there is no medical ev al evidence to that effect. We found und from the evidence of the I.O. (P.W.16 .16) that he issued requisition tion (Ext.29) for medical examination of of P.W.6 to Kantabad P.H.C. O C. On perusal of the other side of Ext.29 t.29, it is mentioned by the do e doctor in the report that no external nal injury noticed. However, the , the doctor has not been examined. Thus, we we are of the view that even though no no injury report is there to corr corroborate the evidence of P.W.6 that ac t accused Niranjan dealt a lath lathi blow to his right scapula, but the the same cannot be a ground to d to disbelieve his entire evidence. The le e learned trial Court has rightly htly relied upon the evidence of P.W.6. P.W.15 Madhu Behe ehera: 13. P.W.15 is 5 is the informant in the case and he he is the brother of the dec deceased. He stated that on the da date of occurrence, he was s as sitting on the varandah of his house use where the deceased was al s also residing. Apart from deposing th that the accused persons bein being armed with deadly weapons, damag maged his house and ransacked cked the properties, he stated that the he seeing the violent mood of of the accused persons, he along wi with his family members so a so also the deceased and his family me members left the house out of f of fear and took shelter in the house of P of P.W.3. He further stated tha that accused Bidyadhar Sahu came ov over the thatch of the house use of P.W.3 and pulled out the thatc hatch and announced to the oth other accused persons that the decease eased had taken shelter there. O re. Out of fear, they opened the back doo door and tried to escape, but but the deceased was chased by the ac e accused persons. He named a ed all the appellants to be armed with we weapons like Thenga, Bhali, K li, Kunta, Pharsa and Katuri while chasin asing the deceased. The dece deceased ran towards the paddy fie field of Padmanav Sahu wher here he fell down and there he was ass assaulted brutally by the appella ellants. He furthe rther stated that he was assaulted by ac y accused Brundaban Dehuri a ri and Gouranga Dehuri by brickbats bats and sustained bleeding in g injury in his both the legs for which he he could not come out to the r he rescue of his deceased brother. He sta stated to have struck up in the the bari of Manguli Naik because of assa assault on him. He specifically st ly stated that the land of Padmanav Sahu ahu (spot of assault) was clear learly visible to him from the bari of M f Manguli Naik which was at a at a distance of 200 cubits from the b e bari of Manguli Naik. He furthe rther stated that when the accused pe d persons dispersed, his family mily members came to the land of Padm Padmanav Sahu and brought th t the deceased and placed him near a co a coconut tree close to the hou house of P.W.3, but by then the decease eased was dead. He stated that hat the proximate cause of the incident w nt was the video show where A e A-1 passed some ugly comments to P to P.W.10 for which a meeting ting was convened in the village, but n t nothing could be settled. He s He stated to have lodged the oral report ort before police when they cam came to the spot which was reduced to wr o writing. In the cro cross-examination, he has stated that n at neither he was present in the the video show nor attended the meetin eeting. He stated that when he he got struck up in the bari of Manguli guli Naik, the family members o rs of Manguli Naik shifted him to the fron front side of their house. He st e stated that paddy was sown on the la e land of Padmalochan Sahu a u and it was muddy then and paddy s y sapling had come up. He stat stated that the deceased was not assaul saulted by any of the accused p ed persons before he fell down on the la e land of Padmanav. He has d s denied the suggestion given by the de e defence that the deceased die d died as because he fell down on the la he land of Padmanav and that n at no one had assaulted him after he fell fell down there. The evide vidence of this witness was challenged b ed by the learned counsel for for the appellants on the ground th that his daughter (P.W.1) h has stated that her father (P.W.15 15) had confined himself insi inside the house of Manguli Naik whe when the deceased was assault aulted on the land of Padmanav and ther therefore, his evidence as an e n eye-witness to the occurrence is a do a doubtful feature. This submi mission is not acceptable as P.W.15 h 5 himself states that he was st s struck off in the bari of Manguli Naik an ik and the land of Padmanav Sa Sahu was clearly visible to him from th the bari of Manguli Naik whic which was at a distance of 200 cubits. s. P.W.1 might not be in a pos position from the place where she was sta s standing underneath a mango ngo tree to mark where her father was as at the time of assault on th n the deceased and she might be thinkin nking that her father had confin nfined himself inside the house of Mangu nguli Naik at the time of assault sault on the deceased. We are of the view view that on the basis of the s e statement of P.W.1, the evidence of P of P.W.15 as an eye witness to t ed. to the occurrence cannot be disbelieved. The next ext ground of attack on the evidence of P of P.W.15 by the learned coun counsel for the appellants is that thou hough he stated to have been a en assaulted by two of the accused perso ersons by means of brickbattin atting, i.e., Brundaban Dehuri and Gou Gouranga Pradhan (A-4) and s d sustained bleeding injuries on both hi h his legs and further stated th d that he had also told the police that h at he had been assaulted and g nd got injured due to brickbatting, but th t there is no medical evidence ence to corroborate that he was an i n injured witness rather it has as been proved through the I.O. (P.W.16 16) that he had not stated to h to have received injuries due to brickbatt batting. Such subm submission is very difficult to be accept cepted as the I.O. (P.W.16) has has stated that he issued requisition (E n (Ext.30) in favour of P.W.15 .15 to Begunia Hospital. On the other er side of Ext.30, the injuries su s sustained by P.W.15 are mentioned, ho , however the concerned docto octor from Begunia Hospital could n d not be examined to prove it. e it. The evide vidence of P.W.15 as an eye witness to the assault on the decea ceased cannot be doubted merely becau ecause he failed to state before fore the I.O. that he himself sustained ned injury due to brickbatting or or that his injury report could not be p e proved. The evidence given n by this witness relating to the assault o ult on the deceased is getting c g corroboration from the medical eviden ence. No doubt the doctor (P.W (P.W.8) has stated that external injury n ry no.(ix) could be caused by fa y fall but the contention of the learned co d counsel for the appellants tha that all the injuries were possible by fall fall is not acceptable, as those ose were cut injuries on different parts rts of the body like left upper per arm, right scapula, right leg, right ight knee, right foot, right leg an g and left foot of different sizes. Thus, we ar are of the view that the learned trial cou court has rightly placed reliance ance on the evidence of P.W.15. Corroborating evid evidence to the evidence of three hree eye witnesses: 14. The learn earned counsel for the appellants cont contended that apart from P.Ws .Ws.1, 6 and 15, the other eye witnesse esses like P.Ws.2, 3, 4, 5, 7, 10 , 10, 11, 12, 13, 18 and 19 have not impl impleaded the appellants in th the assault of the deceased, wherea ereas the learned counsel for for the State argued that the othe ther eye witnesses who had no d not seen the assault on the deceased o ed on the land of Padmanav Sa v Sahu have stated about the other aspe aspects of the prosecution case ase and moreover, the evidence of P.Ws. .Ws.3, 10, 11 and 12 corrobora borate the version of the three eye witn witnesses regarding the particip ticipation of the appellants in the occurren rrence. As is rev revealed from the sequence of events ents that transpired, on the da date of occurrence in the morning at ab t about 8 a.m., the accused p d persons assembled near the house se of the deceased being arm armed with different weapons, damage aged the house of the decease eased and ransacked the properties. The They also caused similar activit tivities in respect of the houses of some ome other villagers. When the he deceased and his family members rs leaving their house, entered red inside the house of P.W.3 Pandari Na i Naik out of fear to take shelt helter, one of the accused namely, Bidy Bidyadhar Sahu came over the the thatch of P.W.3, pulled out the tha thatch to make a hole on the the thatched roof, located the deceased sed inside the house of P.W.3, a .3, announced the presence of the deceas ceased for which some accused sed persons started breaking and demo molishing the house of P.W.3. .3. The deceased tried to escape throug rough the back door of the hou house of P.W.3, but the appellants chase hased him being armed with di different weapons, overpowered him o im on the land of Padmanav Sah Sahu and then assaulted him to death. Apart fro from the eye witnesses P.Ws.1, 6 an 6 and 15 whose evidence we we have already discussed, the fol following witnesses also state tate about the various roles played b d by the appellants on the date date of occurrence. P.W.3 Pan Pandari Naik has stated that he was as in his house at the time of of occurrence which took place at 8 a.m a.m. The accused persons brok broke and damaged the house of the dec deceased and P.W.15, chased sed them and their family members rs to his house. The family m y members of the deceased got panicke icked and rushed to his house t se to take shelter and shut themselves in s inside a room and closed the the front door. He further stated that A t A-1 was armed with a Katuri turi, A-2 was armed with a Pharsa, A , A-3 was armed with a Tangia ngia, A-4 was armed with a Katuri, A , A-5 was armed with a Kanta, ta, A-6 was armed with a Pharsa and app appellant Raja Dehuri (dead) w ) was armed with a Pharsa. The other a r accused persons were armed ed with thenga, lathi and different kin t kinds of lethal weapons. He fu e further stated that seeing the violent m t mood of the accused persons, ons, he fled away through the back side ide of the house. P.W.10 B 0 Basanti Dei, the daughter of the dec deceased has stated that her h er house was razed to the ground, her her father was chased by A-1, A 1, A-2, A-3, A-4, A-5, A-6 and appellan llant Raja Dehuri (dead) toward ards the land of Padmanav Sahu being ing armed with deadly weapons ons like Katuri, Kanta, Axe and Bhujali, b li, but she could not go to the re e rescue of her father. P.W.11 Ch Chaitan Naik has stated that on the d e date of occurrence, after he he and his wife were assaulted, he sa saw the deceased was runnin nning towards Gahira after coming out ut of the house of P.W.3 bei being chased by A-1, A-2, A-3, A-4, 4, A-5, appellant Raja Dehuri ns. huri (dead) armed with deadly weapons. P.W.12 P 2 Prafulla Majhi has stated that ac accused Bidyadhar climbed on d on the thatch roof of P.W.3, made a pee peep hole and announced that t at the deceased had taken shelter there here, as a result of which some me of the accused persons started breaki eaking the house of P.W.3. He He further stated that the deceased es d escaped towards Gahira and nd he was chased by appellant Raja D ja Dehuri (dead), A-1, A-2, A-3 3, A-4, A-5, A-6 being armed with weap weapons. While ass assessing the evidence of the eye witn witnesses P.Ws.1, 6 and 15 reg regarding the participation of the appella pellants in the assault of the dec deceased and other corroborating evide vidence of P.Ws.3, 10, 11 and 12, we have kept in view the ratio laid laid down by the Hon'ble Supre upreme Court in the case of Muthu Na Naicker (supra), wherein it is it is held as follows:- “6. Where here there is a melee and a large numbe mber of assaila ailants and number of witnesses claim to have witn witnessed the occurrence from differen ferent places and and at different stages of the occurrenc rence and wher here the evidence as in this case se is undoubted btedly partisan evidence, the distin stinct possibility ility of innocent being falsely included wit with guilty can ction- cannot be easily ruled out. In a faction ridden soc society where an occurrence takes plac place involving ing rival factions, it is but inevitable tha that the evide vidence would be of a partisan nature. I re. In such a sit situation to reject the entire evidence o ce on the sole ole ground that it is partisan is to shu shut one's eye eyes to the realities of the rural life in ou n our country. ry. Large number of accused would g ld go unpunishe ished if such an easy course is charted arted. Simultane taneously, it is to be borne in mind that hat in a situatio ation as it unfolds in the case before u e us, the easy t sy tendency to involve as many persons o ns of the oppo pposite faction as possible by mere erely naming th g them as having been seen in the mele elee is a tend endency which is more often discernib rnible and is to s to be eschewed and, therefore, th , the evidence ce has to be examined with utmost car care and cauti aution. It is in such a situation that th t this Court in in Masalti -Vrs.- State of U.P. : A.I.R A.I.R. 1965 S.C S.C. 202 adopted the course of adoptin pting a workabl kable test for being assured about the ro e role attributed ted to every accused.” The Hon’b on’ble Supreme Court in the case of M Masalti (supra) has held as fo s follows:- “15…..Wh Where a crowd of assailants who ar are members ers of an unlawful assembly proceeds t ds to commit an it an offence of murder in pursuance of th of the common on object of the unlawful assembly, it it is often not not possible for witnesses to describ scribe accurately tely the part played by each one of th f the assailants ants. Besides, if a large crowd of perso erson armed w with weapons assaults the intende nded victims, it them s, it may not be necessary that all of them have to ta to take part in the actual assault.” In the cas case of State of Maharashtra -Vrs.- R Ramlal Devappa Rathod od and others reported in (2015 015) 15 Supreme Court Cas Cases 77, it is held as follows:- “24. The The liability of those members of th f the unlawful ful assembly who actually committed th d the offence w e would depend upon the nature an and acceptabi tability of the evidence on record. Th . The difficulty lty may however arise, while considerin ering the liabili ability and extent of culpability of thos those who may may not have actually committed th the offence b e but were members of that assembly mbly. What bin binds them and makes them vicarious iously liable is t is the common object in prosecution o on of which th the offence was committed by othe other members ers of the unlawful assembly. Existence o ce of common on object can be ascertained from th the attending ing facts and circumstances. For example mple, if more th re than five persons storm into the hous house of the vic victim where only few of them are arme rmed while the the others are not and the armed person rsons open an an assault, even unarmed persons ar s are vicariously ously liable for the acts committed b d by those arm armed persons. In such a situation it ma t may not be d e difficult to ascertain the existence o ce of common on object as all the persons had storme rmed into the he house of the victim and it could b ld be assessed sed with certainty that all were guided b ed by the comm them mmon object, making every one of them liable. Th Thus when the persons forming th the assembly bly are shown to be having same intere terest in pursua rsuance of which some of them com come armed, w , while others may not be so armed, suc such unarmed ed persons if they share the sam same common on object, are liable for the ac acts committed itted by the armed persons.” Thus the the learned counsel for the State is right ight in his submission that the the evidence of P.Ws.3, 10, 11 an and 12 corroborate the versio ersion of the three eye witnesses P.Ws.1, s.1, 6 and 15 regarding the s he participation of the appellants in the in occurrence. In the f e face of such clear, consistent and c d cogent evidence on record, rd, we are of the view that on the d e date of occurrence, the appe appellants being armed with deadly we weapons formed an unlawful ful assembly, forcibly damaged the hou house of P.W.3, chased the d e deceased who tried to escape throug rough the back door of the hou house of P.W.3 and overpowered him im on the land of Padmanav Sa v Sahu and assaulted him with weapons ons as a result of which the the deceased succumbed to the in injuries. Scrutinising the evide vidence cautiously, we found that it is t is not a case of mere presenc ence of the appellants in the unlawful ass assembly as members of the u he unlawful assembly or as curious spec spectators but it indicates thei their participation in the commission o on of the offence by overt act act or knowing that the offence whic hich was committed was likely ikely to be committed by any member er of the unlawful assembly in y in prosecution of the common object ect of the unlawful assembly a ly and that they becoming or continu tinuing to remain members of th of the unlawful assembly and their partici rticipation by the overt act is sat satisfactorily established. The learn arned counsel for the appellants argue gued that the weapons held by by the appellants were sharp cutting we weapons and therefore, the in e injury no.(ix) as per the post mortem em report which is a lacerated i ed injury could not have been possible by any of such weapons. H s. He placed reliance in the case of of Hallu (supra), the Hon'ble S ble Supreme Court held as follows:- “11. The p he post-mortem report prepared by Dr. N r. N. Jain show hows that on the body of Jagdeo wer were found thr three bruises and a haematoma. On th n the body of of Padum were found four lacerate rated wounds a s and two bruises. According to the ey e eye witnesses ses, the two men were attacked wit with lathis, spe spears and axes but that clearly stand tands falsified b d by the medical evidence. Not one of th f the injuries f s found on the person of Jagdeo an and Padum co could be caused by a spear or an axe axe. The High igh Court however refused to attach an any importanc tance to this aspect of the matter b r by saying th that the witnesses had not stated tha that “the miscr harp- iscreants dealt axe blows from the sharp side or us r used the spear as a piercing weapon pon.” According ding to the High Court, axes and spear pears may have have been used from the blunt side an and therefore, ore, the evidence of the eyewitnesse esses could saf safely be accepted. We should hav have thought t ht that normally, when the witness say says that an a n axe or a spear is used, there is n is no warrant f nt for supposing that what the witnes itness means is s is that the blunt side of the weapon wa was used. If th If that be the implication, it is the duty o ty of the prosec osecution to obtain a clarification from th the witness a s as to whether a sharp-edged or or a g piercing instrument was used as a blun blunt ” weapon.” In the cas case in hand, the doctor (P.W.8) has as noticed eight cut injuries on on different parts of the deceased which hich were possible by sharp cu cutting weapons. The doctor has spec pecifically stated that injury no. no.(ix) could be caused by Katuri and h nd he has stated that M.O.II w I was the Katuri produced before him f im for his opinion. Therefore, t e, the oral evidence and post mortem em report findings in the case ase of Hallu (supra) and the case in h n hand is nt. completely different. Whether the act o ct of the appellants fall within 302 302/149 I.P.C. or 304 Part- -II/149 I.P.C.: 15. The post ost-mortem report (Ext.14) proved by by P.W.8 indicates that out of of the nine injuries, eight injuries were o ere on the non-vital parts of th f the body like left upper arm, right sc t scapula, right leg, right foot, l ot, left leg, left foot and only one injury w ry was on the left frontal region. ion. Of course, the doctor has stated that that there was fracture of hume umerus bone at its middle and fracture o re of right second and third m d metacarpal bones. However, none o e of the injuries has been o n opined to be individually or colle ollectively sufficient in the ordin ordinary course of nature to cause death eath. The weapons which were ere in the hands of the appellants were d re deadly weapons and they co y could have easily caused injuries on th n the vital parts of the body of t of the deceased and more in numbers ha had they got intention to com commit murder of the deceased. There ere is no evidence as to who c ho caused the fatal injury on the head. T d. Though the cause of death w th was opined due to laceration of the the brain matter and associate iated by multiple injuries on different pa t parts of the body, but the doc doctor admits in the cross-examination t on that he had not mentioned in d in Ext.14 that the death of the decease eased was due to shock and cum cumulative effect of all the injuries. In E In Ext.14, it is mentioned that t at the death was due to injury to head ca d causing laceration of brain ma matter. In the ca e case of Nadodi Jayaraman (supra pra), the Hon’ble Supreme Cou Court held as follows: “19.....A c A critical analysis of the injuries receive eived by the d e deceased, which have been extracte acted elsewhere here in the judgment, goes to show tha that the decea eceased had suffered 15 lacerations, 1 s, 12 bruises an s and five contusions. Injuries 1 to 11 ha 1 had been caus caused on his legs, knees, ankle etc., whi while injuries 2 s 26 to 29 were on the thigh and lowe lower part of th f the abdomen. Injuries 12 to 17 and 3 d 32 had been een caused on the forearm, elbow and th d the possibility ility of those injuries having been receive eived by the de e deceased while trying to ward off th f the blows on on the vital parts of his body cannot b ot be ruled out out. The remaining injuries were tw two bruises on s on the front and on the right side of th f the chest and and two lacerations of 2 x 1 cms. near th r the right side side of the nose and the inner end of th f the right eyeb eyebrow. There were two lacerations o s on the right ght temporal region and one on the righ right occipital region. It was only injury No.22 vi viz. "laceration ation on the back of the left side of th f the frontal re l region, 5 x 2 cms. bone deep, fissure sured fracture re 10 cms. vertical of frontal bone bone, extending ding to base with commentated fracture o re of the left o ft orbital place", which was found to b to be sufficient ent to cause death in the ordinary cours ourse of nature. ure. According to the medical witness, all the injurie juries, except injury No.22, were simple i ple in nature an and could not have by themselves cause used death but but those injuries could have precipitate itated the deat death. Since, the evidence of the th prosecutio cution unmistakably asserts that injurie juries had been een caused to the deceased by all the s e six accused a ed and some injuries had been cause used exclusivel ively by A-2 and A-3 alternatively, durin uring the third ird part of the occurrence, it cannot b ot be said with with certainty that the intention of th f the accused w ed was to cause death of Pratap Chandra ndran deceased. sed. This is more so because according t ng to the medic edical evidence, the deceased had die died "due to s to shock and haemorrhage on account o nt of le multiple injuries", and according to the th prosecutio cution version all the seven accused ha had caused th d the injuries and not only A-2 and A A-3. The accus ccused party was armed according to th o the prosecutio cution evidence, with iron rods and pipe pipes and not w ot with any other lethal weapon. If th f the accused h ed had the intention to cause death of th f the deceased, sed, they would have probably com come armed wi with more formidable weapons. Again gain, looking to g to the nature of injuries, which excep xcept for injury ury No. 22, were only simple and no othe other grievous i us injury was even caused, it appears t rs to us that th t the accused possibly wanted to chastis astise the decea eceased for his trade union activities. Th . The seat of th f the injuries as also their nature fortifie rtifies our view. iew. According to the prosecution cas case itself, afte after Pratap Chandran had fallen down i wn in the third hird part of the incident, none of th f the accused t ed took advantage and caused any othe other injury to to him. Most of the injuries, as alread ready noticed, w d, were on non-vital parts of the body body. From the the evidence and circumstances of th f the case, the the appellants do not appear to have ha e had the intent tention causing the death of the decease eased or even c n causing such bodily injury as was like likely to cause use death. They can at the best b t be attributed ted with the knowledge that their act wa t was likely to to cause death or to cause such bodi odily injury as as was likely to cause death, since ce a number o er of injuries had been caused and injur injury No.22 wa was sufficient in the ordinary course o se of nature to to cause death. It is not as if A-2 and A d A-3 alone wer were armed with iron rods and pipes, wit , with which th the injuries were caused and the their acquitted ted co-accused were unarmed. Th The ted acquitted co-accused, according to the th prosecutio cution evidence, were also armed with iro iron rods and and pipes and as such it would b d be hazardous dous to guess as to which blow was cause used by which ich accused. If common intention to caus cause death had had been established in the case, th , the prosecutio cution would not have been required t ed to prove whi which of the injuries was caused by whic which accused to ed to sustain the conviction of the accuse cused with the a he aid of Section 34 I.P.C., but in a cas case like this, his, where five of the co-accused stan stand acquitted ted and the common intention to caus cause death is is not established beyond a reasonab nable doubt, the , the prosecution must establish the exac exact nature of of the injuries caused to the deceased b ed by the accuse cused with a view to sustain the convictio iction of that a at accused for inflicting that particula icular injury. Th . The evidence on the record does not lea t lead to the con conclusion that A-2 and A-3 alone cause aused all the inju injuries to the deceased with the intentio ntion to cause se his death. The broad circumstances o es of the case ase impel us to hold that the commo mon intention ion of A-2 and A-3 was not to cause th e the death of of the victim and therefore, neither o er of them can can be held guilty of the offence unde under Section 3 n 302/34 IPC. Since, the deceased d d did succumb mb to the injuries, caused collectively, th , the appellants ants can only be held guilty of committin itting culpable h le homicide not amounting to murder. Th . The act can be n be said to have been committed by th y the accused w ed with the knowledge that it was likely t ely to cause dea death or to cause such bodily injury a ry as was likely ikely to cause death of Pratap Chandran dran. Learned C ed Counsel for the appellants have no not been able able to persuade us to subscribe to th o the view that that A-2 and A-3 can only be clothed wit with the intention of inte causing grievous hur hurt, punishable able under Section 325/34 IPC. Th The offence of e of the appellants would, in our opinion inion, squarely ely fall under Section 304 Part II IPC IPC. Thus, se setting aside the conviction of th the appellants ants for an offence under Section 302/3 2/34 IPC, we them we alter their conviction and hold them both guilty uilty of the offence under Section 304 Pa Part II IPC.” In the ca case of Molu and others -Vrs.- Sta State of Harayana reported rted in A.I.R 1976 Supreme Court 2 rt 2499 : (1978) 4 Supreme me Court Cases 362, it has been held t eld that in a situation where th e the multiple injuries were caused on the deceased by lathis an s and were of minor character and there w re was no material to show th that the accused did not intend to to cause deliberate murder, th r, the accused is said to have committ mitted an offence under Section ction 304, Part-II, I.P.C and not under S er Section 302, I.P.C. In the cas case Chuttan and others -Vrs.- Sta State of Madhya Pradesh, , reported in 1994 Criminal Law Jo Journal 2097 (SC) : 1994 S 94 Supreme Court Cases (Cri) 1801 01, it has been held that whe here the accused person inflicted injur njuries on the deceased by stick stick portion of the spear on any vitals p ls part of the body, the accused used had no intention to cause the death eath or to cause such injuries, w es, which were sufficient in ordinary cou course of nature to cause dea death, but had knowledge of causing sing such injuries they are lik likely to cause death of the deceased ased, the accused can be convic P.C. nvicted under section 304, Part-II, I.P.C. In the cas case of Dilip Kumar Pradhan & An Another -Vrs- State of Oriss rissa reported in (2000) 18 Orissa Cri riminal Reports 185, this Co s Court has observed as follows: “10. xxx xxx xxx From the evidence on record, it appear Fro pears that there here were no previous enmity between th n the parties an s and the assault was started after ther there was same ame altercation with regard to return o rn of the radio dio-cum-tape recorder to the deceased b ed by the accus ccused persons which, he delivered t d to them, fo eye- for purchase. According to the eye witnesses ses, the injuries were inflicted by a lath lathi and a web web belt by both the accused-appellant lants. In the c e circumstances, the accused person rsons cannot be t be imputed with the intention of causin using death of t of the deceased, but however, knowledg ledge could be be imputed to the accused that their ac ir act was likely ikely to cause death. Law is well settle ettled that wher here the multiple injuries received by th y the deceased sed were caused by blunt weapons lik like lathi and nd the injuries were not on any vital pa l part of the bo body and there in nothing to show tha that the accus ccused intended to cause the deliberat erate murder of r of the deceased, the offence attributab table to the ac accused persons will be under Sectio ction 304, Par Part-II and not under Section 302 302, I.P.C...... ..... 11. In the the case at hand, it has not been prove roved that anyo anyone of the injuries inflicted on th the deceased sed by the accused-appellants wer were sufficient ent in the ordinary course of nature t re to cause dea death, but the cumulative effect of th f the injuries in s inflicted was the cause of death. Th . The ocular ev evidence coupled with the medic edical evidence ce shows that the blows with lathi an i and web belt elt were given on different parts of th f the body inclu including in the palatine region and ther there was no no premeditation and it all happene ened because o se of the allegation against the accuse cused that the t he tape recorder-cum-radio sought to b to be sold its a s a stolen property and return of the sam same on deman mand by the deceased, the accused perso erson fall under der Section 304, Part-II, I.P.C. From th the nature of of the injuries and the weapons used lik d like lathi and nd web belt and the place of the injurie juries on the bo e body of the deceased, it cannot be sa said that the he accused-appellants intended to caus cause death. The . The knowledge that their act was likely t ely to cause dea death of the deceased however can b n be attribute ted and as such, we are of the considere dered opinion th n that in the facts and circumstances o es of the case, cas the accused-appellants have hav committed itted an offence under Section 304, par part- II/34, I.P I.P.C. and their conviction under Sectio ction 302/34, I 4, I.P.C. cannot be sustained. In view o ew of what has has been discussed in the proceedin eding paragraph raphs and the evidence on record, th , the conviction tion recorded by the learned Session sions Courts ha s has to be confirmed.” In the ca case of Kalinder Bharik -Vrs.- Sta State of Himachal Pradesh sh reported in 2000 Supreme Court urt Cases (Cri) 96, the Hon’ble ’ble Supreme Court has held as follows: “7. None one of the injuries can be said to b o be individuall ually or collectively sufficient in th the ordinary c ry course of nature to cause death. This his is a case w e where death became the consequenc uence because o se of excessive bleeding. Therefore, it it is not a case case which can be brought under any on y one of the fou four clauses under section 300 I.P.C. .C. It would rem remain only within the range of culpab pable homicide ide not amounting to murder. 7. We th e therefore, alter the conviction to sectio ction 304 Part I art II IPC.” In the ca case of Sudina Prasad and others ers -Vrs.- State of Bihar re reported in 2003 Supreme Court rt Cases (Cri) 1692, the Hon’ on’ble Supreme Court has held as follows lows: “5. Learne arned counsel for the appellants felt that hat it is more p re prudent to focus his arguments on th n the aspect of t of altering conviction from section 302 302, IPC. For For supporting his contention, learne arned counsel b el brought to our notice two importan rtant features in es in the evidence; one is that A-1 Sudin udina Prasad wa d was armed with a gun which was a liv a live gun and a nd accused Vashisht Gope was armed wit with a pistol. ol. In spite of such possession of leth lethal weapons, ns, neither of them used it. Learne arned counsel c el contended that if the intention wa was murder th r the deceased, at least A-1 would hav have fired the g he gun. 6. The s e second feature is that 11 out of 1 f 12 injuries d s did not cause any damage to th the internal or al organs. It is the horizontal bruise on th n the left side o de of the back, which possible would hav have caused th d the fracture of the ribs. 7. We fee feel that the aforesaid arguments base ased on the ab abovementioned two broad features is s is a strong cir circumstance for us to think that th t the common i on intention of the assailants was only t ly to thrash th the deceased and to inflict him wit with injuries. The grievous injury caused need no d not necessaril sarily have been intended by them. them Nonethele heless they should have been credited wit with the knowl owledge that such injuries could possib ssibly result in h in his death. 8. For the the aforesaid reasons, we are inclined t ed to accept the t the arguments of the learned counsel fo el for the appell pellant. We, therefore, alter the convictio iction from Sec Section 302 IPC to Section 304 Part- -II, IPC. Henc ence, we therefore, convict the appellan ellant for the sa e said offence read with Section 149 IP IPC instead of d of 302 IPC.” From the the evidence and circumstances of the cas case and the ratio laid down in n in the aforesaid citations, we are of the f the view that the appellants ts do not appear to have had the int intention causing the death of of the deceased or even causing such uch bodily injury as was likely ely to cause death. They can at the be e best be attributed with the kn e knowledge that their act was likely to to cause death or to cause suc such bodily injury as was likely to cause use death. We, therefore, alter t er the conviction of the appellants from s m section 302/149 of I.P.C. to . to section 304 Part-II I.P.C./149 of of I.P.C. There are enough ma materials on record that the appellants ants were not only the membe mbers of unlawful assembly as defined ed under section 142 of I.P.C. P.C., but they have used force or viole iolence in prosecution of the co e common object of such assembly and and thus committed offence o e of rioting as defined under section 1 n 146 of I.P.C. punishable un under section 147 of I.P.C. and they hey were armed with deadly w ly weapons and thus there is no error ror in the impugned judgment ent of the learned trial Court in convictin icting the appellants under sect sections 147 and 148 of I.P.C. The appe ppellants were taken into judicial custo ustody in connection with the ca e case on August 1994 and were released ased from judicial custody on ba n bail 19.05.1997 and after pronouncem cement of judgment by the lear learned trial Court on 19.12.1997, they they were again taken into judi judicial custody and were enlarged on b on bail by this Court vide order der dated 06.03.2000 in this CRLA and a d as such they have remained in custody for a period of five years. A s. A-1, A- 2 and A-4 are now ag aged more than 60 years and A-3, A-5 a 5 and A- 6 are now aged more ore than 55 years. No adverse report has has been produced against any any of the appellants though they are o re on bail for more than 25 yea years. The occurrence in question took pl k place in the year 1994 and in d in the meantime, more than 30 years ears have passed. Therefore, w e, we are of the view that no useful pu l purpose would be served in in sending the appellants to custody dy again. Keeping in view all th ll the facts and circumstances of the case, ase, while altering the conviction ction of the appellants from Section 302/ 02/149 of I.P.C. to Section 304 304 Part-II I.P.C./149 of I.P.C., the sente entence of imprisonment is dire directed to be reduced to the period a d already undergone. Conclusion: 16. In the res result, the Criminal Appeal is allowed in d in part. The conviction of the the appellants under section 302/149 49 of the I.P.C. is altered to o to one under section 304 Part-II/149 of the I.P.C. and the senten tence of imprisonment is reduced to the the period already undergone. . No separate sentence is awarded fo d for the conviction of the appe appellants under sections 147 and 148 of of I.P.C. 17. Before pa e parting with the case, we would like to p to put on record our appreciati ciation to Mr. Devashis Panda, learned d counsel for his preparation an n and presentation of the case before the the Court and rendering valuab luable help in arriving at the decision ion above mentioned. This Cou Court also appreciates the valuable hel help and assistance rendered ed by Mr. Jateswar Nayak, learned Add Additional Government Advocate cate for the State. ........................... ........... o, J. S.K. Sahoo, J. ............................. Chittaranjan Das .............. Dash, J. Orissa High Court, Cuttack The 21st August 2025/PKSahoo hoo Signature Not Verified Digitally Signed Signed by: PRAMOD KUMAR SAHOO Reason: Authentication Location: HIGH COURT OF ORISSA Date: 21-Aug-2025 11:30:10
Arguments
Mr. Devas evashis Panda, learned counsel appeari ring on behalf of the appellan llants argued that the learned trial Court ourt found the appellants guilty ilty on the basis of evidence adduced by by three eye witnesses i.e. P. P.Ws.1, 6 and 15, but there are othe other eye witnesses like P.Ws. s.2, 3, 4, 5, 7, 10, 11, 12, 13, 18 and 1 d 19 who have not impleaded aded the appellants in the assault o lt of the deceased. He further rther argued that the evidence of the he doctor (P.W.8) who conduct ducted post-mortem examination falsifie lsifies the assault made by so m so many appellants with different weapon apons. He argued that the place laces from where the eye witnesses claim claimed to have seen the assaul sault on the deceased is a doubtful featur ature and none of the eye wit witnesses speaks about the presence ce of the other at the time of e of assault on the deceased on the la e land of Padmanav Sahu. He He further argued that P.W.6 was examin mined at a belated stage by by the I.O. and no cogent explanat nation is forthcoming in that r at respect. P.W.6 has stated to have see seen the entire incident sitting tting near his house, but the spot map ap would falsify this aspect. He He further argued that as per the evide vidence of P.W.1, P.W.15 had ad confined himself in the house of M f Manguli Nayak when the assau ssault was going on, which creates doubt ubt about the evidence of P.W.1 .W.15 as an eye witness to the occurrenc rence. He argued that according ding to the evidence of the eye witnesse esses, the appellants were arme armed with sharp cutting weapons, but but injury no.(ix) is a lacerated ted wound on the left frontal region abo above the left eye brow which ch according to the doctor (P.W.8) was th s the fatal injury, could not hav have been caused by any such sharp c rp cutting weapon rather it wa was possible by fall as stated by P.W. P.W.8. He argued that though th h the deceased had sustained as many a ny as nine injuries, but injuries ies nos.(i) to (viii) were on the non-vital vital parts of the body and none one of the eye witnesses has stated as t as to who caused the fatal inj injury i.e. injury no.(ix) on the hea head and therefore, even if for f for the sake of argument, it is accepte pted that the appellants assau saulted the deceased, it is not a case ase which would come within in the purview of section 302/149 of of I.P.C. rather it may at t best come within culpable homicid icide not amounting to murder rder punishable under section 304 Part art-II/149 of I.P.C. In suppor port of his contention, learned counsel sel placed reliance in the cases ases of Ganesh Bhavan Patel and an another -Vrs.- State of Mah aharashtra reported in (1978) 4 Sup Supreme Court Cases 371, M Muthu Naicker and others -Vrs.- Sta State of Tamil Nadu report orted in (1978) 4 Supreme Court rt Cases 385, Hallu and ot others -Vrs.- State of M.P. report ported in (1974) 4 Supreme me Court Cases 300, State of Orissa ssa -Vrs.- Brahmananda Nand anda reported in (1976) 4 Supreme me Court Cases 288, Gunduc duchi Patnaik and others -Vrs.- Sta State of Orissa reported in in 1985 (I) Orissa Law Reviews 480 80, Lahu Kamlakar Patil and and another -Vrs.- State of Mahara harashtra reported in (2013) 13) 6 Supreme Court Cases 417 and N Nadodi Jayaraman and oth others -Vrs.- State of Tamil Nadu rep reported in 1992 Supp (3) Su ) Supreme Court Cases 161. 9. Mr. Jatesw teswar Nayak, learned Additional Gover vernment Advocate appearing for the State, on the other hand, supp supported the impugned judgme gment and urged that the evidence of the the three eye witnesses i.e. P.W . P.Ws.1, 6 and 15 have not been shatte attered in the cross-examination ation rather it is getting corroboration fro from the medical evidence. As . As per the evidence of the doctor (P.W.8 .W.8), the post mortem report ort shows multiple fatal injuries consisten stent with assault by sharp-cutt cutting and blunt weapons like Tangia, K ia, Katuri, Kanta, Farsa and La d Lathis as described by the eye witn witnesses. Learned counsel fur further submitted that the appellants nts were armed with deadly we y weapons and their concerted action in ch in chasing and assaulting the de e deceased proves their active participat ipation in furtherance of their c eir common object. He further submitte itted that the individual overt a rt acts of the appellants are not required ired to be proved separately as as long as their membership and partici rticipation in the unlawful asse ssembly is established. He further sub submitted that there is no inco inconsistency between the ocular and m d medical version. He argued th d that the evidence of P.Ws.3, 10, 11 a 1 and 12 corroborate the versio ersion of the three eye witnesses and they they have also impleaded the ap e appellants. The other eye witnesses wh who had not seen the assault ult on the deceased on the land of Padm Padmanav Sahu, have deposed osed about the pelting of brickbats b s by the accused persons, th , their own assault or assault on the the other injured or the first pa t part of the occurrence when the houses ses of the villagers were damag maged and properties were ransacked, ed, which gives a complete pict picture about the entire occurrence righ right from the beginning till end end. He argued that nothing has been br n brought out by way of cross- -examination of the three eye witnesse esses that the places from wher here they stated to have seen the assa assault on the deceased are dou doubtful feature. The three eye witnesses sses were at three different pla places when the assault on the decease ased was going on and theref erefore, each of them while focusing o g on the assault might not hav have noticed the presence of the others s at the time of occurrence. He argued that nothing has been broug rought on record as to when P.W P.W.6 was examined and no question ha n has also been put to the I.O I.O. for delayed examination of P.W. .W.6 and therefore, the defenc fence cannot take advantage of the sam same. He further argued that t at the vague statement of P.W.1 that P at P.W.15 had confined himself self in the house of Manguli Nayak whe when the assault was going o g on, cannot be a ground to disbeliev elieve the position of P.W.15 at 5 at the time of occurrence or his eviden idence as an eye witness to th o the assault on the deceased on the la e land of Padmanav Sahu. He He argued that the cause of death th of the deceased was not on t only the head injury which caused lace laceration of the brain matter tter but associated with multiple injuri juries on different parts of bod body as per the evidence of the P.M. .M. doctor (P.W.8) and therefor efore, the learned trial Court has rightly ghtly held that the case falls wit within section 302/149 of I.P.C. The appe appellants were the members o rs of unlawful assembly and committed ed rioting being armed with de h deadly weapons and thus the learne rned trial Court has rightly h y held the appellants guilty under se sections 147/148/302/149 of t of the I.P.C. In suppor port of such submissions, learned couns ounsel for the State has placed aced reliance on the decisions of the H e Hon’ble Supreme Court in th n the cases of Masalti -Vrs.- State of e of U.P. reported in A.I.R. 1 R. 1965 Supreme Court 202. Whether the deceas ceased died of a homicidal death?: 10. Adverting ting to the contentions raised by the le e learned counsel for the respe espective parties, let us first examine wh whether the prosecution has as successfully established that the dec deceased met with a homicidal idal death or not. Apart from from the inquest report (Ext.27), it ap it appears that P.W.8 conducte ucted the post-mortem examination ove over the dead body of the d e deceased on 25.08.1994 and notice ticed the following injuries: “(i) Cut in r arm ut injury at the middle of right upper arm cutting th g the skin and underlying muscle. Ther There was fractu acture of humerus bone at the middle, siz , size of the inju injury was ½” x 3” x ½”; (ii) Cut i arm ut injury at the middle of left upper arm cutting th g the skin and underline muscle. The siz size of the inju injury is 3” x ½”; (iii) Cut i ut injury 2” below lower angle of righ right scapula cu la cutting skin and muscle. The size of th f the injury is 3 is 3” x ½”; (iv) Cut in ut injury on the anterior aspect of right le ht leg 4” below low the right knee joint cutting skin an and muscle. Th e. The size of the injury is 2” x ½”; (v) Cut in ut injury on the anterior aspect of right le ht leg 3” above ove right knee joint cutting the skin. Th . The size of the f the injury is 1” x ½”; (vi) Cut in ut injuries at three places on right foot o ot of size varyi arying from 1” to 3” long and ½” wide wide. There is is fracture of right second and thir third metacarpa arpal bones; (vii) Cut ut injury on the middle of the left le ft leg cutting sk g skin. The size of the injury is 2” x ½”; (viii) Cut Cut injury on the inner aspect of left foo t foot skin deep eep. The size of the injury is 2” x ½” ½” x eep; skin deep; (ix) Lacer cerated injury on the left frontal region 1 on 1” above the the left eye brow causing fracture to th o the underling ling frontal bone. The size of the injury ury is 2” x ½”. The docto octor further stated that on dissection, he he found that the left frontal lo al lobe of the brain matter and its three ree layers of dura, pia and arch archnoid matter were lacerated. He opine pined that the injuries noted in in the report were ante mortem in natur ature and the cause of death wa h was due to laceration of the brain matte atter and associated by multiple ltiple injuries on different parts of the bod body and the time of death was was within 16 to 24 hours of the post-m mortem examination. The doc doctor proved the post-mortem report m rt marked as Ext.14. He also ex o examined the weapons of offence (one one Katuri and one Gupti) which hich were sent to him by the I.O. for a r a query regarding possibility lity of the injuries sustained by the dec deceased with such weapons s and he answered vide Ext.15 tha that the external injury nos. os.(i), (vi) and (ix) could be caused by by Katuri and the rest of the ex e external injuries could be caused by Gup Gupti. He further stated that th t the injuries were sufficient in ordinary c ry course of nature to cause dea death. In view of w of the inquest report (Ext.27) and findi findings in the post-mortem rep report (Ext.14) coupled with the eviden idence of the doctor (P.W.8) who conducted post-mortem examin mination, which has remained ed unchallenged in the cross-examinatio ation and other evidence on re n record, we are of the humble view th that the learned trial Court urt is quite justified in holding th that the prosecution has succe uccessfully proved that the deceased me met with homicidal death. Whether the eviden idence of eye witnesses P.Ws.1, 6 & 1 & 15 can be acted upon?: P.W.1 Jhuni Behera era: 11. P.W.1 Jhu Jhuni Behera is the daughter of the info informant (P.W.15). The deceas ceased was her elder father. She stated t ed that on the date of occurren rrence, when the accused persons were ere being armed with deadly we y weapons like Bhali, Kanta and Pharsa s sa started damaging their hous ouse from 8 a.m. onwards, she hersel rself, her father (P.W.15), her her elder father (deceased) and other thers fled away to the house of e of P.W.3 out of fear to save their lives ives. They took shelter in the h e house of P.W.3. Accused Bidyadhar cl r climbed over the thatch of P. f P.W.3 and made a hole taking out the the straw and also shouted t that the family of the deceased had had taken shelter in the house use of P.W.3. The other accused persons sons were standing in front of th of the house of P.W.3 and they started bre breaking the door of the hous house of P.W.3. The deceased tried to e to escape through the back doo door of the house of P.W.3 and he was c as chased by the appellants an s and other accused persons. She spec pecifically stated that A-1 was h as holding Katari, A-2 was holding Katar atari, A-3 was holding Tangia, ia, A-4 was holding Pharsa, A-5 was h s holding Kanta and A-6 was was holding Pharsa and the other ac r accused persons were holdin lding lathi and other deadly weapons ons. She further stated that th t the deceased was overpowered on the l he land of Padmanav Sahu. Ra Raj Dehury (Dead) attacked on the the right shoulder of deceased sed by Pharsa, A-1 assaulted the deceas ceased by katari on the right ha t hand, A-3 dealt blows on the right leg leg of the deceased by Tangia a ia and other appellants assaulted the dec deceased with the weapons ns with which they were armed an nd the appellants had also s lso surrounded the deceased. She state tated that coming out of the ho e house of P.W.3, she came close to a m a mango tree which was abou bout 40 yards from the spot, stood ther there and watched the assaul sault by different accused persons o s on the deceased. She furth urther stated that after half an hour o ur of the assault, she came fro from underneath the mango tree and w d went to the land of Padmana nav Sahu and found the deceased was was lying dead with bleeding in g injuries all over his body which were o re on the right scapula, right le ht leg, right hand, left hand, left leg and and right frontal bone. In the cr e cross-examination, she has stated to to have been examined by the y the police on the date of the occurrence nce itself. She further stated tha d that her father (P.W.15) had confined h ed himself inside the house of of Manguli Naik, when the deceased ased was assaulted on the land land of Padmanav. She further stated th d that no other villagers was st s standing near her and witnessing the in e incident of assault on the dec deceased. She further stated that by the the time the police came to th o the spot, they had shifted the deceased ased from the land of Padmana nav to a place which was in the front ont of the house of Pandari Na Naik (P.W.3) and kept the body un under a coconut tree. It has bee been confronted to her and proved throu rough the I.O. (P.W.16) that he t he had not stated before police that her her father and elder father had t ad taken lease of govt. land and that sh she came out of the house of of P.W.3 and stood under a mango t o tree to witness the assault ult on the deceased and that she saw aw a cut injury above the right ight eye brow of the deceased. Apart from from such minor contradictions, nothin thing has been brought out in t in the cross-examination of P.W.1 to affe affect her credibility. She was u as underneath a mango tree which was was about 40 yards from the the spot and watching the assault o lt on the deceased which migh ight not have been noticed by the othe other two eye witnesses. Her ev r evidence appears to be very natural an al and her position at the time e of the assault on the deceased was suc such that it could not be said th id that she was at such a distance that it it would not have been possi ossible on her part to mark the assaul sault. The evidence of P.W.1 is 1 is also getting ample corroboration fro from the medical evidence. Thu