Dinabandhu Vs State

IN THE HIGH COURT OF ORISSA, CUTTACK

CRA No.02 of 1998

An appeal from t h e judgment and order dated 19. 1 2.1997 passed by the Addl. Sessions Judge, Khurda in S.T. No.4 5 /475 of 1996.

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Dinabandhu Dehury

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Sridhar Be h era

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Tikina Pra d han @ Tikam Pradhan

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4.	GourangaP radha	n
5.	Gagan Prad han
6.	Madhab Be hera	.......	Appel lants
		-Versus-
Sta	te of Odisha	.......	Respo ndent
	For Appella nt:	-	Mr. Devashis Pa Advocate nda
	For Respon dent:	-	Mr. Jateswar Na Addl. Govt. Advo yak cate

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P R E S E N T:

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THE HONOURABLE MR. JUSTICE S.K. SAHOO

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AND

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THE HONOURABLE MR. JUSTICE CHITTARANJAN DASH

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---------------------- - ----------------------------------------- - ------Date of Hearing: 05 . 08.2025 Date of Judgment: 21. 0 8.2025 ---------------------- - ----------------------------------------- - -------

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S.K. Sahoo, J. A trivial incident of passing lewd comments t o a girl during video show i n the village followed by protest by th e family members of the girl escalated into an uncalled for tragic s cenario of murder of girl’s f a ther. Glaring examples are there in s c ripture when the game of d ice and subsequent humiliation of Draupadi stood out as a pivo t al incident that irrevocably set the s t age for Kurukshetra War. It is crucial to discern which minor disagreements hav e the potential to escalate so that it can be addressed early whi c h would prevent them from snowballing into more significant co n flicts or resentment, impacting relationships or broader social sy s tems.

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The ap p ellants Dinabandhu Dehury (A-1), Sridhar Behera (A-2), Tikin a Pradhan @ Tikam Pradhan (A-3), G o uranga Pradhan (A-4), Gag a n Pradhan (A-5) and Madhab Behe r a (A-6) along with Raja @ Rajkishore Dehuri preferred this appeal, however during pendency of the appeal, Raja @ Ra j kishore Dehuri expired and as such, as per order dated 18.12.2 0 00, the Criminal Appeal has been directed to be abated in respe c t of the said appellant. Th u s, this Criminal Appeal survives only in respect of six app e llants, namely, Dinabandhu Dehur y (A-1), Sridhar Behera (A- 2 ), Tikina Pradhan @ Tikam Pradha n (A-3), Gouranga Pradhan (A-4), Gagan Pradhan (A-5) and Madhab Behera (A-6).

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The appellants along with others, all total si x ty four accused persons fac e d trial in the Court of learned Addl. S essions Judge, Khurda in S .T. No.45/475 of 1996 for commi s sion of offences under sect i ons 147, 148, 337/149 and 302/14 9 of the Indian Penal Code ( h ereinafter ‘I.P.C.’) on the accusation that on 24.08.1994 at abou t 8.00 a.m. at village Tandalo under B egunia police station, they w ere the members of unlawful assembly and committed the off e nce of rioting being armed with deadly weapons and in pr o secution of the common object, the y pelted brickbats so rashly and negligently as to endanger hu m an life and thereby caused hurt to Ramesh Naik (P.W.6), Madhu Behera (P.W.15) and one Akhaya Kumar Panda and also co m mitted murder of Jadum a ni Behera (hereafter ‘the deceas e d’) by intentionally causin g his death.

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Further, A-1 Dinabandhu Dehury, A-2 Sridhar Behera, A-3 Tikina Pradhan @ Tikam Pradhan, A-4 G o uranga Pradhan, A-5 Gagan Pradhan and A-6 Madhab Behera al o ng with accused Tiki Naik a nd Raja Kishore Dehury (since dea d ) were charged for the offe n ce under section 302 of I.P.C. for as s aulting and committing mu r der of the deceased by intentionally causing his death and we r e further charged for commission of the offence punishable u nder section 337 of I.P.C. for causing hurt to Ramesh Naik (P.W. 6 ), Madhu Behera (P.W.15) and one Akhaya

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Kumar Panda by pelting brickbats so rashly and negligently so as to endanger human life and personal safety of others.

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The lear n ed trial Court vide impugned judgm e nt and order dated 19.12 . 1997, while acquitting the other a ccused persons of all the c harges as aforesaid, found A-1 Dinabandhu Dehury, A-2 Sridh a r Behera, A-3 Tikina Pradhan @ Tikam Pradhan, A-4 Gour a nga Pradhan, A-5 Gagan Pradhan a nd A-6 Madhab Behera an d Raja Kishore Dehury (since dead ) guilty under sections 147 , 148, 302/149 of the I.P.C. and se n tenced each of them to undergo rigorous imprisonment for life for the offence under secti o n 302/149 of the I.P.C., but no separate sentence has been a warded for the offences under secti o ns 147 and 148 of the I.P.C.

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Prosecution Case :

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The pro s ecution case, as per the first info r mation report (hereinafter ‘the F.I.R.’) (Ext.1) lodged by Madhu Behera (P.W.15), in short, is that on 22.08.1994 at about 8.0 0 p.m., some children of th e village Tandal Bada Sahi were arranging a video show near a m andap and Basanti Behera (P.W.10) , who is the daughter of th e deceased and also niece of P.W.1 5 along with other children w as witnessing the same. During su c h video show, A-1 passed s ome lewd comments to P.W.10 fo r which

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P.W.10 left the pl a ce of video show and came to re p ort the matter to P.W.13 Mathura Behera, the younger bro t her of P.W.15, who in tur n informed it to the father of A-1 an d asked him to settle the m atter. Accordingly, in the evening h o urs on 23.08.1994, a mee t ing was convened to settle the mat t er, but due to quarrel betw e en A-1 and P.W.13, the matter coul d not be resolved, rather t h e people of Bada Sahi threw bri c k bats towards the basti o f the informant (P.W.15). It is furthe r stated in the F.I.R. that o n that very night, the people of Adivasi Sahi, Tandal Sabarna Sahi, Nua Sahi and Kachera convened a m eeting and on the next da y morning i.e. on 24.08.1994 at about 8.00 a.m., the people of all those four basti (slum) including the accused persons b e ing armed with deadly weapons lik e Farsa, Kanta, Katari etc. f ormed an unlawful assembly, came to the basti of P.W.15, de m olished and ransacked the houses of P.W.15 and other persons o f their basti and assaulted basti peo p le with the weapons of offe n ce with which they were armed with. Seeing the aggressive mood of the accused persons, the deceased out of fear fled away fr o m his house and took shelter in the h ouse of Pandari Naik (P.W. 3 ) by bolting the door from inside. H owever accused Bidyadhar Sahu of village Kachera detect e d the presence of deceas e d inside the house of P.W.3 and inf o rmed it to the other accus e d persons. Some of the accused p ersons

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forcibly entered in t o the house of P.W.3 being arm e d with weapons and took t he deceased to the nearby paddy fi e ld and assaulted him with weapons and after committing murd e r, they threw his dead bod y in the paddy field. It is also stated that at the time of such a s sault, A-1 and A-2 were armed with Katari, A-3 with Tangia, A - 4 with Farsa, A-5 with Kunta and A -6 with Farsa.

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P.W.16 G irija Prasad Das who was working a s C.I. of Police at Khurda received information through V.H. F . from Begunia police station that a rioting had taken place in village Tandal and one m a n of that village had died in the r iot and accordingly, he pr o ceeded to village Tandal with fo r ce and reached there at 11.30 a.m. and there on the oral r e port of Madhu Behera (P.W.15), he drew up a plain paper F.I.R. and it was read over and explained to P.W.15, who affixed his L.T.I. and the written rep o rt was sent to Begunia police statio n where one N.C. Sethy, O fficer in-charge of Begunia police station registered Begunia P.S. Case No.95 dated 24.08.199 4 under sections 147/148/1 4 9/336/337/380/427/307/302 of I.P.C. and P.W.16 himself took up investigation.

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During t h e course of investigation, P.W.16 fo u nd the dead body of the d e ceased was kept on the street locall y called

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Jemabanta Dei. H e held inquest over the dead body of the deceased in prese n ce of the Addl. Tahasildar, Khur d a and witnesses and prep a red inquest report Ext.27. On 24.08. 1 994 he sent the dead b ody of the deceased for post- m ortem examination throug h a constable as per the dead body challan (Ext.6) also prepar e d the spot map (Ext.28). On 24.08. 1 994 he also sent requisitions to Kantabad P.H.C. and Khurda Hos p ital for medical examinatio n in respect of the injured persons as per Exts.16/2 to 23/2. On 24.08.1994 he also seized the bloodstained earth and s a mple earth from the paddy field of P a dmalav Sahu in presence o f the witnesses as per seizure list E x t.11/1. On 24.08.1994 he also made a house search of A-1 and s eized a Katari as per seizur e list Ext.12/1 in presence of the wi t nesses. On 24.08.1994 he also searched the house of accused Muralidhar Naik and recovered a ‘gupti’ and seized the same as per seizure list Ext.13/1. On 24.08.1994 he also seized two alumini u m pots (Dekchi) and one le a f of a door from the village danda in front of the house of Man g uli Naik as per seizure list Ext.2 5 /1. On 24.08.1994 he also seized 20 nos. of small and big si z e brick bats and some spli t bamboos from the village danda o f village Jemabanta Dei in presence of the witnesses as per sei z ure list Ext.4. On 25.08.1 9 94 he sent injury requisition (Ex t .29) in respect of the injur e d Ramesh Naik (P.W.6) to Kantaba d P.H.C.

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and also issued another requisition (Ext.30) in favour of P.W.15 to Begunia hospital. He also issued injury requisition (Ext.31) in respect of the injured Akhaya Kumar Panda, seized a bloodstained lungi, two r e d coloured towels, one yellow colour e d saree on production by B u dei Naik at Khurda medical campus as per seizure list Ext.24/ 1 and sent M.O.I and M.O.II to the Medical Officer (P.W.8), wh o conducted post mortem examinati o n over the dead body of deceased seeking for opinion as to whe t her the death of deceased c o uld be possible by such M.Os.

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P.W.16 handed over the charge of investig a tion to P.W.17 Braja Kishore Patra, Circle Inspector of Police, Kh u rda on 10.11.1994, who arrested some of the accused pers o ns and forwarded them to Court. He also examined some wi t nesses, arrested more accused persons on 23.01.1995, sei z ed the command certificat e from Havildar Balaram Mohanty, w ho had carried the dead body of the deceased to Government H ospital, Khurda for post m o rtem examination as per seizure li s t Ext.9 and on completion of investigation, submitted charg e sheet against the appella n ts along with other accused person s under sections 147/148/ 3 02/307/455/380/323/324/427 rea d with section 149 of I.P.C.

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Framing of Charges :

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On rec e ipt of the charge sheet, the ca s e was committed to the Court of Session following due pr o cedure, where the learned trial Court framed charges agai n st the appellants as afore s aid. The appellants pleaded not gu i lty and claimed to be tried a nd accordingly, the sessions trial pr o cedure was resorted to est a blish their guilt.

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Prosecution Witnesses, Exhibits & Material Objects :

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In order to prove its case, the prosecution e x amined as many as ninetee n numbers of witnesses.

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P.W.1 Jhuni Behera, who is the daughter of the informant (P.W.15), P.W.6 Ramesh Naik and the in f ormant (P.W.15) himself a r e the eye witnesses to the occurre n ce and they supported the p rosecution case.

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P.W.2 P a nu Parida stated to have seen the a ccused persons damaging h is house. He further stated that the a ccused persons had enmit y with the villagers of Tandal and hi s house along with the bel o ngings was also ransacked by the a ccused persons. He is a wit n ess to the seizure of blood stained e a rth and sample earth from t he land of Padmalav Sahu as per sei z ure list marked as Ext.11, seizure of blood stained Katuri from th e house of Dinabandhu Deh u ri as per seizure list marked as Ext . 12 and

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blood stained Gupti from the house of accused Muli Nai k as per seizure list marked a s Ext.13.

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P.W.3 P andari Naik, who is a co-villager of the

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deceased has stated that at the time of occurren c e, the appellants along wi t h other accused persons being arm e d with different deadly we a pons, chased the deceased and se e ing the violent mood of the accused persons, he fled away thro u gh the backside of his hou s e and he came back after three days to his house and found hi s house to have been razed to the gr o und by the accused person s .

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P.W.4 B u dhei Dei, wife of P.W.11 is a co-vil l ager of the deceased and s he has stated that she found the a ccused persons to have as s embled at the house of the deceased being armed with differe n t deadly weapons. She further stat e d that while some accuse d persons were breaking the house of the deceased, a group of accused persons came to her house, damaged her house and cut the green trees from her b a ri. She further stated that w hen she along with her husband C h aitanya (P.W.11) went out of the house, the accused persons rushed towards her husba n d and accused Kaibalya dealt a Kat u ri blow on the right side sc a pula of her husband causing bleedin g injury. She further stated t hat when she went to rescue her h u sband,

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accused Bhagaban Behera dealt a lathi blow (thenga) on her head, accused Bilua dealt a lathi blow to the right side wrist and backside of the p a lm of her hand for which she s u stained bleeding injury on h e r head and fell down on the ground a nd lost her sense.

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P.W.5 Surenda Dehuri, who is a co-villager of the deceased, has state d that he found the accused persons to have assembled at the house of the deceased being arm e d with deadly weapons. H e stated that the accused persons chased the deceased and his f amily members pelting brick bats a nd the accused persons in a body went inside the house of Pand a ri Naik (P.W.3), pulled do w n his house and damaged the sam e , which he witnessed from the backside of his house. Thereaf t er, the accused Bidyadhar S ahu climbed up the roof of P.W.3, pulled out the straws from the roof to find out who had taken shelt e r there in the house of P. W .3 and all the accused persons we n t there and participated in the damage and destruction. He has also narrated the reaso n s of ill-feeling between the villager s of his village as well as t h e villagers of Bada Saar Sahi and S abarna Sahi belonging to the accused persons. He further sta t ed that the dispute was pac i fied on the intervention of Grama Ra k hi.

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P.W.7 K ulamani Behera, who is the father of the deceased, has stat e d that while the incident occurred, he had been to the house o f Pandari Naik (P.W.3) and on hea r ing the hue and cry near h is house, he came back to his ho u se and found the accused persons to have assembled near hi s house being armed with l a thi, bhali, kanta, pharsa and other deadly weapons. He furthe r stated that while he was going to th e rescue of the wife of his youngest son, Mathura, who had deli v ered a baby prior to the o ccurrence, accused Maharagia (sinc e dead) pulled him out of hi s house and accused Jogi Behera deal t a lathi blow to his left fore a rm and thereafter accused Bhagaba n poked two blows to his l e ft scapula, for which he fell down on the ground. He further s tated that all his family members along with children ran to the h ouse of Pandari Naik (P.W.3) to take shelter. He further stated th a t the accused persons ransacked his grocery shop completely.

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P.W.8 D r. Bholeswar Panda was the P a ediatric Specialist of G.B. S . Hospital, Khurda, who conduct e d post mortem examinatio n over the dead body of the decea s ed and proved the P.M. rep o rt Ext.14.

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P.W.9 D r. Harihar Patnaik, who was the Medical Officer, Kantabad A d ditional P.H.C. treated the injured p ersons,

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namely, Budhei Dei (P.W.4), Kulamani Behera (P.W.7), Chaitan Naik (P.W.11), Basanta Naik (P.W.18), Kumar Naik (P.W. 1 9) and others on police re q uisition and proved the injury rep o rts. He further stated that a ll the injuries embodied in the repo r ts were simple in nature. H e further stated that though the injure d Dama Majhi was referred b y the police for medical examination , but he refused to be medi c ally examined. He proved the certif i cate to that effect vide Ext. 2 3.

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P.W.10 B asanti Dei, the daughter of the deceased, has stated regardi n g the misbehaviour shown to her by A-1 during the video sh o w in the village and there was an alt e rcation between his father and uncle with A-1 in the village m eeting. She further stated that she had been to the agriculture field when the incident o ccurred and on hearing the news regarding the attack on her h ouse by the accused persons, she r e turned back and found that her deceased father was being ch a sed by the accused perso n s, being armed with deadly weap o ns like Katuri, Kanta, Axe and Bhujali.

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P.W.11 C haitan Naik, who is one of the injured, has stated that on the date and time of occurrence, the a ccused persons after destr o ying the houses in Sana Sara Sahi, c ame to his house and start e d destroying the green trees of his b a ri. Out

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of fear, he along wi t h his family members wanted to take shelter in the house of P. W .3, but they were confronted by the some accused persons being armed with deadly weapons. At th a t time, accused Kaibalya D e hury dealt one blow by means of a Kati on his right foot causi n g a bleeding injury, accused Tiki Naik dealt another blow by m e ans of a Farsa on his right forearm causing bleeding injury and thereafter, A-3 dealt a tangia blow on his right hand shoulde r joint causing serious bleeding inj u ry. He further stated that w hen his wife Budhei Dei (P.W.4) came to his rescue, she was als o assaulted for which she sustained b leeding injuries on her hea d and on her right palm on the dorsal aspect. He further stated that he saw the deceased running tow a rds the field after coming o u t of the house of Pandari Naik (P.W. 3 ) being chased by A-1, A-2, A-3, A-4, A-5, Raja Dehuri (dead), T iki Naik and others being ar m ed with deadly weapons.

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P.W.12 Prafulla Majhi, who is a co-villager of the deceased, claimed t o have seen the first part of the occurrence regarding demolitio n of the house of the deceased and chasing the deceased towar d s the field by the accused persons. He is a witness to the sei z ure of blood stained clothes prod u ced by Budhei Dei (P.W.4) a s per seizure list Ext.24.

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P.W.13 M athura Behera, who is a co-village r of the

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deceased, has sta t ed regarding the misbehaviour sh o wn to P.W.10 during the v ideo show and he is a witness to th e village meeting over the s a id issue. He further stated that on t h e date and time of occurr e nce, he had been to his paddy field and on hearing hue and cr y in the village, he rushed to the s p ot and found that some p e rsons of Bada Saara Sahi were d a maging their houses and o u t of fear, he did not enter into the village, rather rushed to Be g unia police station to report the ma t ter and sought police assist a nce on the issue immediately.

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P.W.14 Magi Dehuri is a witness to the seizure of split bamboos and b rick bats as per seizure list Ext.4. H e is also a witness to the s e izure of aluminium pots as per sei z ure list Ext.25.

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P.W.16 G irija Prasad Das, who was the C.I. o f Police at Khurda, was the initial Investigating Officer of the case .

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P.W.17 Braja Kishore Patra was the C.I. o f Police, Khurda, who took o ver the charge of investigation from P.W.16 and submitted char g e sheet against the accused persons.

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P.W.18 B asanta Naik is an injured witness wh o stated that the accused p e rsons came in a body, damaged the houses belonging to differ e nt persons of his village and during the

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occurrence, he was assaulted by Naba Naik, Sarat Nai k , Bilua Naik by means of l a thi and accused Kailash Naik dealt a katuri blow to his right leg causing bleeding injury.

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P.W.19 K umar Naik is another injured witnes s to the occurrence who st a ted that on the date of occurren c e, the accused persons ca m e in a body and damaged the hou s es and other properties of his village and in course of such i n cident, accused Niranjan N a ik assaulted him by means of a lat h i to his left ear causing bleeding injury.

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The pr o secution proved thirty one num b ers of documents as exhi b its. Ext.1 is the Formal F.I.R, Ext. 2 is the Chemical Examination Report, Ext.3 is the Se r ological Examination Report, Exts.4, 5, 9, 11/1, 12/1, 13/1, 2 4 /1 and 25/1 are the seizur e lists, Ext.6 is the dead body challan, Ext.7 is the spot visit report, Ext.8 is the forwarding report of S. D .J.M to State F.S.L., Ext.1 0 is the command certificate, Ext.1 4 is the post-mortem report , Ext 15 is the reply to the query by P.W 8, Ext.16 is the injury c ertificate of Chaitan Naik (P.W.11), Ext.17 is the injury certificate of Kartik Naik, Ext.18 is the injury certificate of Basant Naik (P.W.18), Ext.19 is the injury certificate o f Budhei Dei (P.W.4), Ext.2 0 is the injury certificate of Kum a r Naik (P.W.19), Ext.21 i s the injury certificate of Kulamani Behera

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(P.W.7), Ext.22 is t h e injury certificate of Lochan Behera , Ext.23 is the certificate of D ama Majhi, Ext.26 is the F.I.R., Ext.27 is the inquest report, Ext.28 is the spot map, Ext.29 is th e injury requisition of Ra m esh Naik (P.W.6), Ext.30 is the injury requisition of Madh u Behera (P.W.15) and Ext.31 is th e injury requisition of Aksha y Kumar Panda.

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The pro s ecution also proved two numbers of m aterial objects. M.O.I is the Gupti (knife) and M.O.II is the Katuri.

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Defence Plea :

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The def e nce plea of the appellants is one of c o mplete denial to the prose c ution case and they further pleaded t o have been entangled fals e ly in the case due to previous rivalry.

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Findings of the Trial Court :

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The lea r ned trial Court, after assessing the oral as well as documentar y evidence on record, came to hold t hat the evidence of P.Ws.1, 6 and 15 to the effect that on the date of occurrence, the appellant Raj Kishore Dehury (since dea d ), A-1, A-2, A-3, A-4, A-5 a nd A-6 being armed with Lathi, Fars a , Kanta and Bhali etc. com m itted murder of the deceased over the land of Padmalav Sahu, is clear and convincing and it did not f ind any reason to discard t h eir evidence on this score. While believing the evidence of P. W .3 Pandari Naik, learned trial Court h as held

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that merely becaus e after escaping from the house, he did not go to the police sta t ion to report the matter, is not a gr o und to discard his evidence on this score. The learned trial Cour t relying on the evidence of P.W.10, has observed that the evidence of P.Ws.1, 6 and 15 fi n d support from the evidence of P.W.10 so far as chasing to the d e ceased by the accused persons. It w as held that simply becaus e P.W.6 was examined four to five da y s after the occurrence ca n not be a ground to discard his evidence particularly when nothing has been brought out in hi s crossexamination to imp e ach his testimony. It was further h e ld that the evidence of P. W .6 and P.W.15 indicate that some of the accused persons w ere also armed with lathi and in such circumstances, the p ossibility that the injury no.(ix) might have been caused by l a thi cannot be ruled out. Relying on the evidence of the eye witnesses, i.e. P.Ws.1, 6 and 15, whi c h finds support from the e v idence of other witnesses, the lear n ed trial Court concluded th a t on the date of occurrence, accu s ed Raj Kishore Dehury (si n ce dead), A-1, A-2, A-3, A-4, A-5 a nd A-6 formed an unlawful assembly and being armed with deadly weapons, committe d murder of the deceased in prosec u tion of their common obje c t. The learned trial Court further o b served that the names of t he seven appellants find place in th e F.I.R. lodged at the spot w ithin one hour of the occurrence, whi c h rules

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out possibility of an y false implication of these appellants at that stage and accordi n gly, found them guilty of the o ffences charged.

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The lea r ned trial Court relying on the evid e nce of P.Ws.7, 9, 18 and 1 9, came to hold that the evidence o f these witnesses cannot b e accepted to come to a definite co n clusion that at the time of incident, any of the other accused p ersons except the seven { the present appellants along with Raja @ Rajakishore Dehur y (since dead)} referred to above, shared common intention in prosecution of the common objec t of the unlawful assembly a nd accordingly, acquitted the other a ccused persons of all the charges. The learned trial Court held th a t there is no evidence tha t due to pelting of stones by the a ccused persons, any witnes s sustained injury and thus, the charge under section 337/149 of I.P.C. fails to the ground.

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Contentions of the Parties :

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Mr. Dev a shis Panda, learned counsel appearing on behalf of the appell a nts argued that the learned trial Cou r t found the appellants guilt y on the basis of evidence adduced b y three eye witnesses i.e. P .Ws.1, 6 and 15, but there are ot h er eye witnesses like P.Ws.2, 3, 4, 5, 7, 10, 11, 12, 13, 18 and 19 who have not implead e d the appellants in the assault of the

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deceased. He furth e r argued that the evidence of the doctor (P.W.8) who conducted post-mortem examination falsi f ies the assault made by so many appellants with different weap o ns. He argued that the pla c es from where the eye witnesses claimed to have seen the assa u lt on the deceased is a doubtful feat u re and none of the eye witnesses speaks about the presence of the other at the time o f assault on the deceased on the land of Padmanav Sahu. H e further argued that P.W.6 was exa m ined at a belated stage b y the I.O. and no cogent explan a tion is forthcoming in that respect. P.W.6 has stated to have s e en the entire incident sitti n g near his house, but the spot ma p would falsify this aspect. H e further argued that as per the evi d ence of P.W.1, P.W.15 had confined himself in the house of Manguli Nayak when the ass a ult was going on, which creates dou b t about the evidence of P. W .15 as an eye witness to the occurrence. He argued that accordi n g to the evidence of the eye witnes s es, the appellants were ar m ed with sharp cutting weapons, bu t injury no.(ix) is a lacerate d wound on the left frontal region above the left eye brow which according to the doctor (P.W.8) was the fatal injury, could not h a ve been caused by any such sharp cutting weapon rather it w as possible by fall as stated by P. W .8. He argued that though the deceased had sustained as many as nine injuries, but injurie s nos.(i) to (viii) were on the non-vit a l parts

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of the body and no n e of the eye witnesses has stated as to who caused the fatal i n jury i.e. injury no.(ix) on the head and therefore, even if f o r the sake of argument, it is accep t ed that the appellants assaulted the deceased, it is not a cas e which would come within the purview of section 302/149 o f I.P.C. rather it may at best come within culpable homicide not amounting to murd e r punishable under section 304 Par t -II/149 of I.P.C.

¶72

In supp o rt of his contention, learned counsel placed reliance in the cas e s of Ganesh Bhavan Patel and another -Vrs.- State of Maharashtra reported in (1978) 4 Supreme Court Cases 371, Muthu Naicker and others -Vrs.- State of Tamil Nadu reported in (1978) 4 Supreme Court Cases 385, Hallu and others -Vrs.- State of M.P. reported in (1974) 4 Supreme Court Cases 300, State of Orissa -Vrs.Brahmananda Nanda reported in (1976) 4 Supreme Court Cases 288, Gunduchi Patnaik and others -Vrs.- State of Orissa reported in 1985 (I) Orissa Law Reviews 480, Lahu Kamlakar Patil and another -Vrs.- State of Maharashtra reported in (2013) 6 Supreme Court Cases 417 and Nadodi Jayaraman and others -Vrs.- State of Tamil Nadu reported in 1992 Supp (3) Supreme Court Cases 161 .

¶73

Mr. Jate s war Nayak, learned Additional Gov e rnment Advocate appearing for the State, on the other hand, supported the impugned judg m ent and urged that the evidence of t h e three eye witnesses i.e. P .Ws.1, 6 and 15 have not been shat t ered in the cross-examinati o n rather it is getting corroboration f r om the medical evidence. A s per the evidence of the doctor (P.W.8), the post mortem report shows multiple fatal injuries consist e nt with assault by sharp-cu t ting and blunt weapons like Tangia, Katuri, Kanta, Farsa and L athis as described by the eye wi t nesses. Learned counsel f u rther submitted that the appellan t s were armed with deadly w eapons and their concerted action in chasing and assaulting the d eceased proves their active particip a tion in furtherance of their common object. He further submit t ed that the individual overt acts of the appellants are not requir e d to be proved separately a s long as their membership and parti c ipation in the unlawful as s embly is established. He further submitted that there is no in c onsistency between the ocular and medical version. He argued that the evidence of P.Ws.3, 10, 11 and 12 corroborate the ver s ion of the three eye witnesses and th e y have also impleaded the a ppellants. The other eye witnesses w ho had not seen the assaul t on the deceased on the land of Pa d manav Sahu, have depos e d about the pelting of brickbats by the accused persons, their own assault or assault on th e other

¶74

injured or the first p art of the occurrence when the houses of the villagers were dam a ged and properties were ransacked, which gives a complete pi c ture about the entire occurrence right from the beginning till end. He argued that nothing has been b rought out by way of cross - examination of the three eye witnes s es that the places from wh e re they stated to have seen the as s ault on the deceased are d o ubtful feature. The three eye witness e s were at three different places when the assault on the decea s ed was going on and ther e fore, each of them while focusing on the assault might not h a ve noticed the presence of the other s at the time of occurrence. He argued that nothing has been brought on record as to when P.W.6 was examined and no question h as also been put to the I . O. for delayed examination of P. W .6 and therefore, the defe n ce cannot take advantage of the same. He further argued that the vague statement of P.W.1 that P.W.15 had confined himself in the house of Manguli Nayak w h en the assault was going on, cannot be a ground to disbeli e ve the position of P.W.15 a t the time of occurrence or his evid e nce as an eye witness to t he assault on the deceased on the land of Padmanav Sahu. H e argued that the cause of death of the deceased was not o nly the head injury which caused la c eration of the brain matt e r but associated with multiple injuries on different parts of b o dy as per the evidence of the P.M. doctor

¶75

(P.W.8) and theref o re, the learned trial Court has righ t ly held that the case falls within section 302/149 of I.P.C. The ap p ellants were the members of unlawful assembly and committed rioting being armed with d eadly weapons and thus the learned trial Court has rightly held the appellants guilty under s ections 147/148/302/149 o f the I.P.C.

¶76

In supp o rt of such submissions, learned cou n sel for the State has plac e d reliance on the decisions of the Hon’ble Supreme Court in t he cases of Masalti -Vrs.- State of U.P. reported in A.I.R. 1965 Supreme Court 202 .

¶77

Whether the deceased died of a homicidal death? :

¶78

Advertin g to the contentions raised by the learned counsel for the res p ective parties, let us first examine w hether the prosecution ha s successfully established that the d e ceased met with a homicidal death or not.

¶79

Apart fr o m the inquest report (Ext.27), it a ppears that P.W.8 conduc t ed the post-mortem examination o v er the dead body of the deceased on 25.08.1994 and noti c ed the following injuries:

¶80

“(i) Cut injury at the middle of right upper arm cutting t he skin and underlying muscle. Th e re was frac t ure of humerus bone at the middle, s ize of the in j ury was ½” x 3” x ½”;

¶81

(ii) Cut injury at the middle of left upper arm cutting t he skin and underline muscle. The s ize of the in j ury is 3” x ½”;

¶82

(iii) Cut injury 2” below lower angle of ri g ht scapula c utting skin and muscle. The size of t he injury is 3” x ½”;

¶83

(iv) Cut injury on the anterior aspect of right leg 4” belo w the right knee joint cutting skin a nd muscle. T he size of the injury is 2” x ½”;

¶84

(v) Cut injury on the anterior aspect of right leg 3” abov e right knee joint cutting the skin. T he size of t h e injury is 1” x ½”;

¶85

(vi) Cut injuries at three places on right foot of size var y ing from 1” to 3” long and ½” wi d e. There i s fracture of right second and t h ird metacar p al bones;

¶86

(vii) Cu t injury on the middle of the left leg cutting s kin. The size of the injury is 2” x ½”;

¶87

(viii) Cu t injury on the inner aspect of left f o ot skin de e p. The size of the injury is 2” x ½ ” x skin dee p ;

¶88

(ix) Lac e rated injury on the left frontal region 1” above t h e left eye brow causing fracture to t he underlin g frontal bone. The size of the injur y is 2” x ½”.

¶89

The doc t or further stated that on dissection, he found that the left frontal lobe of the brain matter and its thre e layers

¶90

of dura, pia and ar c hnoid matter were lacerated. He opi n ed that the injuries noted i n the report were ante mortem in nat u re and the cause of death w as due to laceration of the brain ma t ter and associated by multi p le injuries on different parts of the b o dy and the time of death w a s within 16 to 24 hours of the post- m ortem examination. The d o ctor proved the post-mortem report marked as Ext.14. He also e xamined the weapons of offence (on e Katuri and one Gupti) whi c h were sent to him by the I.O. for a query regarding possibilit y of the injuries sustained by the d e ceased with such weapon s and he answered vide Ext.15 t h at the external injury nos.(i), (vi) and (ix) could be caused b y Katuri and the rest of the e xternal injuries could be caused by G u pti. He further stated that t he injuries were sufficient in ordinar y course of nature to cause d e ath.

¶91

In view o f the inquest report (Ext.27) and fin d ings in the post-mortem r e port (Ext.14) coupled with the evid e nce of the doctor (P.W.8) who conducted post-mortem examination, which has remaine d unchallenged in the cross-examination and other evidence on r ecord, we are of the humble view t hat the learned trial Cour t is quite justified in holding t h at the prosecution has successfully proved that the deceased m et with homicidal death.

¶92

Whether the evidence of eye witnesses P.Ws.1, 6 & 15 can

¶93

be acted upon? :

¶94

P.W.1 Jhuni Behera :

¶95

P.W.1 J h uni Behera is the daughter of the in f ormant (P.W.15). The dece a sed was her elder father. She stated that on the date of occurrence, when the accused persons wer e being armed with deadly w eapons like Bhali, Kanta and Pharsa started damaging their ho u se from 8 a.m. onwards, she hers e lf, her father (P.W.15), h e r elder father (deceased) and oth e rs fled away to the house o f P.W.3 out of fear to save their liv e s. They took shelter in the house of P.W.3. Accused Bidyadhar c limbed over the thatch of P .W.3 and made a hole taking out the straw and also shouted t hat the family of the deceased ha d taken shelter in the hous e of P.W.3. The other accused perso n s were standing in front of t he house of P.W.3 and they started b reaking the door of the ho u se of P.W.3. The deceased tried to escape through the back d o or of the house of P.W.3 and he was chased by the appellants a nd other accused persons. She sp e cifically stated that A-1 wa s holding Katari, A-2 was holding Kat a ri, A-3 was holding Tangia , A-4 was holding Pharsa, A-5 was holding Kanta and A-6 w a s holding Pharsa and the other a ccused persons were hold i ng lathi and other deadly weapo n s. She

¶96

further stated that the deceased was overpowered on the land of Padmanav Sahu. R aj Dehury (Dead) attacked on the right shoulder of deceased by Pharsa, A-1 assaulted the dece a sed by katari on the right h and, A-3 dealt blows on the right le g of the deceased by Tangia and other appellants assaulted the d e ceased with the weapons with which they were armed and the appellants had also surrounded the deceased. She stated that coming out of the h ouse of P.W.3, she came close to a mango tree which was about 40 yards from the spot, stood th e re and watched the assa u lt by different accused persons on the deceased. She further stated that after half an hour of the assault, she came f r om underneath the mango tree and w ent to the land of Padma n av Sahu and found the deceased w a s lying dead with bleeding injuries all over his body which were on the right scapula, right leg, right hand, left hand, left leg a n d right frontal bone.

¶97

In the c ross-examination, she has stated t o have been examined by t h e police on the date of the occurren c e itself. She further stated that her father (P.W.15) had confined himself inside the house o f Manguli Naik, when the deceas e d was assaulted on the la n d of Padmanav. She further stated that no other villagers was s tanding near her and witnessing the i ncident

¶98

of assault on the d e ceased. She further stated that by t h e time the police came to t he spot, they had shifted the deceas e d from the land of Padmanav to a place which was in the fron t of the house of Pandari N aik (P.W.3) and kept the body u nder a coconut tree.

¶99

It has b e en confronted to her and proved through the I.O. (P.W.16) that he had not stated before police that her father and elder father ha d taken lease of govt. land and that s h e came out of the house o f P.W.3 and stood under a mango tree to witness the assault on the deceased and that she sa w a cut injury above the rig h t eye brow of the deceased.

¶100

Apart fr o m such minor contradictions, noth i ng has been brought out in the cross-examination of P.W.1 to af f ect her credibility. She was underneath a mango tree which wa s about 40 yards from th e spot and watching the assault on the deceased which mi g ht not have been noticed by the ot h er two eye witnesses. Her e vidence appears to be very natural a nd her position at the time of the assault on the deceased was s u ch that it could not be said t hat she was at such a distance that it would not have been pos s ible on her part to mark the assa u lt. The evidence of P.W.1 is also getting ample corroboration f r om the

¶101

medical evidence. T h us, we are of the view that the lear n ed trial Court has rightly pl a ced reliance on her evidence.

¶102

P.W.6 Ramesh Naik :

¶103

He stat e d that on the occurrence day, he was at a distance of 25 ft. fr o m the house of the deceased and th e house of P.W.3 was at a distance of 50 ft. from his house. While returning from his cultivable land, he found the accused p ersons were armed with deadly weapons and assembled at the h ouse of the deceased and c ompletely demolished his house. He further stated that then the accused persons came to his ho u se and started demolishing the same and when he protested, he was assaulted by two a c cused persons, namely, Brundaban Dehury and Niranjan. He f u rther stated that when accused Bi d yadhar Sahu climbed up th e roof of P.W.3, made a hole on the t h atched roof, located the d e ceased and his family members in s ide the house of P.W.3 and then shouted and drew the attentio n of the co-accused persons about the presence of the deceased inside. He further stated t h at the accused persons started demolishing the house of P.W.3 f or which the deceased fled away through the backdoor and all th e appellants along with appellant Raja Dehury (dead) chased the deceased being armed with Katuri, Farsa, Kanta, Tangia and l athi. The deceased ran towards the land of

¶104

Padmanav Sahu w h ere he was overpowered. The ap p ellants brutally assaulted t h e deceased with the arms, which th e y were holding.

¶105

In the cross-examination, P.W.6 has stated that he was examined by t h e I.O. between four to six days. H e stated that he was sent to the hospital by the police for medical examination on th e following day of the incident. He further stated that he coul d not say which of the accused assa u lted on which part of the b ody of the deceased. He further stated to have witnessed the e ntire incident sitting near his house.

¶106

It has b een confronted to him and proved t hrough the I.O. (P.W.16) t h at he had not stated before police t hat the accused persons demolished the house of the deceased and he had also not stat e d that accused Bidyadhar told th e other accused persons to come to the house of P.W.3 stating t hat the deceased had concealed his presence there and that he h ad also not stated that t h e other accused persons apart fr o m the appellants chased t h e deceased.

¶107

Learned counsel for the appellants contend e d that since P.W.6 was ex a mined by the I.O. at a belated stage and no cogent explanation is coming forth in that respect, his evidence should be viewed wi t h suspicion.

¶108

On the o ther hand, the learned counsel for t h e State argued that there is no evidence on record as to when P. W .6 was examined by the I. O . and no question has been put to t he I.O. for delayed examin a tion of P.W.6 and thus, the defence cannot take any advantage of the delayed examination, if any.

¶109

It appears that not a single question has bee n put by the defence to the I .O. (P.W.16) as to when he examine d P.W.6 and why there was d elay in recording his statement.

¶110

Learned counsel for the appellants for canvas s ing his point on delayed disclosure emphatically placed relianc e in the case of Ganesh Bhavan Patel (supra), wherein the Hon'ble Supreme Court has h eld as follows:-

¶111

“15……D e lay of a few hours, simpliciter, in recordin g the statements of eye witnesses m ay not, be itself, amount to a serious infirmity in the prosecution case. But it may assume suc h a character if there are concomitant circumstan c es to sugg e st that the investigator was deliberately marking time with a view to decide about t he shape t o be given to the case and the e ye witness e s to be introduced.”

¶112

In the c ase of Brahmananda Nanda (sup r a), the

¶113

Hon’ble Supreme C o urt held as follows:-

¶114

“2……..T h ough according to this witness, she s aw the mu r derous assault on Hrudananda by t he respond e nt and she also saw the respond e nt coming o ut of the adjoining house of Nityana n da where t h e rest of the murders were committ e d, she did n ot mention the name of the respond e nt as the assailant for a day and a half. T he murders were committed in the night of June 1 3, 1969 a n d yet she did not come out with t he name o f the respondent until the morning of June 15 , 1969. It is not possible to accept t he explana t ion sought to be given on behalf of t he prosecu t ion that she did not disclose the na m e of the r e spondent as the assailant earlier t h an June 1 5 , 1969 on account of fear of t he respond e nt. There could be no question of a ny fear fro m the respondent because in the f i rst place, t h e respondent was not known to b e a gangste r or a confirmed criminal about wh o m people w ould be afraid, secondly, the police h ad already arrived at the scene and they w e re statione d in the clubhouse which was j u st opposite to the house of the witness and thir d ly, A.S.I. Madan Das was her nephew and he h ad come to the village in connection with the c a se and ha d also visited her house on June 1 4, 1969. I t is indeed difficult to believe that t his witness should not have disclosed the name of the res p ondent to the police or even to A SI Madan D as and should have waited till t he

¶115

morning of June 15, 1969 for giving out t he name o f the respondent. This is a very seri o us infirmity which destroys the credibility of t he evidenc e of this witness.”

¶116

In the c a se of Gunduchi Patnaik (supra), a D ivision

¶117

Bench of this Court h as held as follows:-

¶118

“14. W e would next come to the evidence of P.W.7. Neither P.W.7 had spoken about t he presenc e of P.Ws.2 and 6 on the spot n or P.Ws.2 a nd 6 had spoken about the presenc e of P.W.7 at the time of occurrence. It would be seen fr o m the evidence of the Investigating Officer t hat this witness was examined in t he course o f investigation as late as on August 2 5, 1979. T here was no evidence that he h ad disclose d the occurrence to any one until his belated examination in the course of investig a tion. If the police officer had come to the scene of occurrence on August 12, 1979 a nd P.W.7 had witnessed the occurrence, he could have v olunteered a statement to t he Investig a ting Officer. No explanation whatsoe v er had been given by P.W.7 as to why he did n ot disclose the occurrence to anyone. He could n ot have ha d a sense of loss after the Investigating police o f ficer had come to the scene. There w as no evid e nce that any of the accused persons h ad threatened him at the time of assault on t he person of the deceased not to disclose t he

¶119

occurre n ce to anyone. The learned Sessi o ns Judge h a s observed that the general tendenc y of the peo p le of the present day is to remain a w ay from police interrogation and dusty law cou r ts' one of w hich was being presided over by him at the trial. No reasonable explanation had b e en offered by P.W.7 as to why he made a l a te disclosu r e about the occurrence at the stage of investig a tion. In such circumstances, it would be unsafe a nd hazardous to accept the evidenc e of P.W.7 with regard to the occurrence.”

¶120

In the c ase of Lahu Kamlakar Patil (sup r a), the

¶121

Hon'ble Supreme C o urt held as follows:-

¶122

“22. Fr o m the aforesaid grounds, the prim a ry attack o f the learned Counsel for the Appella n ts is that there has been delay in the examination of the said witness and he has contributed for such delay and, hence, his testimony should be discredi t ed.

¶123

In Mohd. Khalid -Vs.- State of W.B. : (2002) 7 Supreme Court Cases 334 , a contenti o n was raised that three witnesses, namely, P.Ws.40, 67 and 68, could not be termed to be reliable. Such a contention w as advanced as regards P.W.68 that there h ad been d e lay in his examination. The Court observe d that mere delay in examination of t he witness e s for a few days cannot in all cases be termed f atal so far as prosecution is concern e d.

¶124

There m ay be several reasons and when t he delay is explained, whatever the length of del a y, the Co u rt can act on the testimony of t he witness e s, if it is found to be cogent a nd credible.

¶125

x x x xxx xxx

¶126

Fro m the aforesaid pronouncements, it is vivid th a t witnesses to certain crimes may r un away fr o m the scene and may also leave t he place d u e to fear and if there is any delay in their ex a mination, the testimony should not be discarded. That apart, a Court has to keep in mind that different witnesses react differe n tly under different situations. Some witnesses g e t a shock, some become perplexed, some s t art wailing a nd some run away from the scene a nd yet some who have the courage and conviction come f o rward either to lodge an F.I.R. or g et themsel v es examined immediately. Thus, it differs f rom individuals to individuals. Th e re cannot b e uniformity in human reaction. W h ile the said principle has to be kept in mind, i t is also to b e borne in mind that if the conduct of the witness is so unnatural and is not in acc o rd with ac c eptable human behaviour allowing of variatio n s, then his testimony beco m es questio n able and is likely to be discarded.”

¶127

In the c a se of Madan Kanhar @ Mitu -Vrs.- State

¶128

of Orissa reported in (2025) 98 Orissa Criminal Reports

¶129

781 , this Bench has observed as follows:

¶130

“13. In t he instant case, the testimony of P. W .5, the su p posed eyewitness, fails to meet t he standar d of a ‘sterling witness’, as laid down by the Hon ' ble Supreme Court. The Court has held that, a n eyewitness must be of the high e st quality a nd credibility, and their version should be so u n impeachable that it can be accepted at its face value without hesitation. A sterling witness must provide a natural and consist e nt account that withstands rigorous crossexamination and aligns with the overall case of the pr o secution. A major flaw in P.W.5's stateme n t is her delayed disclosure. She claims to have witnessed the Appellant assaulting t he decease d with an axe and even heard the vic t im cry out, "MITU HANI DELA." Despite allegedly seeing s uch a brutal act, she failed to inform anyone a bout it until six days after the incid e nt. This delay in disclosure raises serious doubts about the credibility of her testimony. If she h ad genuinely witnessed a murder, her silence is highly u nnatural and unexplained. The rea s on given that she was threatened by the Appell a nt appears weak, as she was in the company of two others, who were also not examined as witness e s. Their absence in the trial furt h er

¶131

weaken s her statement, as the prosecution failed to bring forward independent witnesse s to substan t iate her claims. There is no evidence on record t hat the Appellant was having criminal backgro u nd. The police was coming to t he village f r om the date of occurrence in connection with the investigation of the case. Therefore, it is diffic u lt to accept that, on account of thre a ts given b y the Appellant, there was dela y ed disclosu r e. If, in spite of presence of the police in the v i llage, she was in a state of fear as t he Appella n t had not been arrested, then how h er fear dis p ersed when she gave her statement to police six days after the occurrence, as by t h at time th e Appellant was in large, which crea t es doubt a b out the truthfulness of her version.”

¶132

After g o ing through the decisions cited by the learned counsel fo r the appellants to discard the evid e nce of P.W.6 on the ground of his delayed examination, we ar e of the view that the testi m ony of a witness cannot become u n reliable merely because th e re is a delay in the examination o f such witness by police during investigation. Question of delay in examining a witnes s during investigation is material only when there are concomitant circumstances to indicate and s uggest that some unfair pr a ctice has been adopted by the investigating agency for the purpose of introducing a witness to falsely support the prosecu t ion case or the investigator was deli b erately

¶133

marking time with a view to decide about the shape to b e given to the case. Delay in examination of witnesses is a v ariable factor which would d epend upon a number of circumstances like non-availability of w itnesses, the investigating officer being preoccupied in some serious matters, the investigating officer spending his tim e in arresting the accused, wh o were absconding, being o ccupied in other spheres of investig a tion of the same case, which may require his attention urge n tly and importantly etc. Ho w ever, in a case where commission o f crime is alleged to have been seen by witnesses who ar e easily available, a pruden t investigator would give to the exa m ination of such witnesses precedence over the evidence o f other witnesses. (Ref: (2005) 9 Supreme Court Cases 283: Sunil Kumar -Vrs.- State of Rajasthan ; (2012) 7 Supreme Court Cases 646: Shyamal Ghosh -Vrs.- State of West Bengal ; (2015) 9 Supreme Court Cases 588: V.K. Mishra -Vrs.State of Uttarakhand )

¶134

The pr o secution is under obligation t o offer explanation for th e delay in recording the statemen t of an important witness and if the explanation is reasona b le and plausible, testimon y of the witness cannot be co n sidered unacceptable because of his delayed interrogation. Apart from this, the defence m u st put specific questions to the investigating

¶135

officer for the dela y in recording the statement and must seek explanation from hi m . The Hon’ble Supreme Court in the case of Banti @ Guddu -Vrs.- State of M.P. reported in (2004) 1 Supreme Court Cases 414 and State of U.P. -Vrs.Satish reported in (2005) 3 Supreme Court Cases 114 has held that unless the inv e stigating officer is categorically ask e d as to why there was d e lay in examination of the witness e s, the defence cannot gai n any advantage therefrom. It cannot be laid down as a rule of u n iversal application that if there is a n y delay in examination of a particular witness, the prosecution version becomes suspect. I t would depend upon several factors. If the explanation offered for the delayed examination is plausible and acceptable and the C ourt accepts the same as plausible, there is no reason not to accept the version and rely on it if it is trustworthy.

¶136

Therefo r e, in the case in hand, when P. W .6 has stated that he was examined by the I.O. between fou r to six days and no ques t ions have been put to the I.O. ( P .W.16) regarding delayed e x amination of P.W.6 and there is no evidence on record as to act u ally when P.W.6 was examined by t h e I.O., we are not able to accept the challenge made by the learned counsel for the a p pellant regarding the acceptability of the

¶137

evidence of P.W.6 on the ground of his delayed examination. P.W.6 is an indepe n dent witness and he was having no h ostility with the appellants or any of the accused persons to depose falsely against the m . His evidence has not been shaken in spite thorough and rigoro u s cross-examination.

¶138

There a re no such major contradictions in the evidence of P.W.6.

¶139

The lea r ned counsel for the appellants argued that P.W.6 claimed to h a ve witnessed the entire incident sitti n g near his house as he was dealt a lathi blow by accused Niranja n on his right scapula, but t he spot map (Ext.28) would indic a te that there are houses in front of his house on the other sid e of the road and spot as shown in Ext.28 was at such a place that it could not have bee n possible on the part of P.W.6 to no t ice the assault on the dece a sed sitting near his house.

¶140

The entire argument on this score falls to the ground as nothing has been brought out by way of cross-exa m ination that sitting near his house, P.W.6 could not have witnessed the assault rather P.W.6 has stated that his house situat e s at a distance of 50 to 60 feet away from the land of Padmana v Sahu.

¶141

It is arg u ed by the learned counsel for the appellants

¶142

that though P.W.6 h as stated that accused Niranjan deal t a lathi blow to his right sc a pula for which he sat down due to p a in, but there is no medical e vidence to that effect.

¶143

We found from the evidence of the I.O. (P.W. 1 6) that he issued requisitio n (Ext.29) for medical examination of P.W.6 to Kantabad P.H.C. On perusal of the other side of Ext. 2 9, it is mentioned by the d octor in the report that no external injury noticed. However, t h e doctor has not been examined.

¶144

Thus, w e are of the view that even though n o injury report is there to corroborate the evidence of P.W.6 that a ccused Niranjan dealt a la t hi blow to his right scapula, but th e same cannot be a ground to disbelieve his entire evidence. The learned trial Court has rightl y relied upon the evidence of P.W.6.

¶145

P.W.15 Madhu Behera :

¶146

P.W.15 is the informant in the case and h e is the brother of the d e ceased. He stated that on the d ate of occurrence, he was sitting on the varandah of his hous e where the deceased was a lso residing. Apart from deposing that the accused persons being armed with deadly weapons, dam a ged his house and ransack e d the properties, he stated that the seeing the violent mood o f the accused persons, he along w ith his

¶147

family members so also the deceased and his family m embers left the house out o f fear and took shelter in the house o f P.W.3. He further stated t h at accused Bidyadhar Sahu came over the thatch of the hous e of P.W.3 and pulled out the tha t ch and announced to the o t her accused persons that the decea s ed had taken shelter there. Out of fear, they opened the back d o or and tried to escape, bu t the deceased was chased by the a ccused persons. He named all the appellants to be armed with w eapons like Thenga, Bhali, Kunta, Pharsa and Katuri while cha s ing the deceased. The de c eased ran towards the paddy f ield of Padmanav Sahu wh e re he fell down and there he was a s saulted brutally by the appellants.

¶148

He further stated that he was assaulted by a ccused Brundaban Dehuri and Gouranga Dehuri by brickb a ts and sustained bleeding injury in his both the legs for which h e could not come out to the rescue of his deceased brother. He s t ated to have struck up in t h e bari of Manguli Naik because of as s ault on him. He specifically stated that the land of Padmanav Sa h u (spot of assault) was cle a rly visible to him from the bari of Manguli Naik which was at a distance of 200 cubits from the bari of Manguli Naik.

¶149

He furt h er stated that when the accused p ersons dispersed, his family members came to the land of Pa d manav

¶150

Sahu and brought the deceased and placed him near a c oconut tree close to the house of P.W.3, but by then the decea s ed was dead. He stated tha t the proximate cause of the incident w as the video show where A -1 passed some ugly comments to P.W.10 for which a meetin g was convened in the village, but nothing could be settled. He stated to have lodged the oral repor t before police when they ca m e to the spot which was reduced to w riting. In the c r oss-examination, he has stated that neither he was present in t h e video show nor attended the mee t ing. He stated that when h e got struck up in the bari of Mang u li Naik, the family members of Manguli Naik shifted him to the fr o nt side of their house. He s tated that paddy was sown on the land of Padmalochan Sahu and it was muddy then and paddy sapling had come up. He st a ted that the deceased was not assa u lted by any of the accused persons before he fell down on the land of Padmanav. He has denied the suggestion given by the d efence that the deceased d ied as because he fell down on the land of Padmanav and that no one had assaulted him after he f e ll down there.

¶151

The evi d ence of this witness was challenged by the learned counsel for the appellants on the ground that his daughter (P.W.1) h as stated that her father (P.W.15) had confined himself inside the house of Manguli Naik w h en the

¶152

deceased was assa u lted on the land of Padmanav and th e refore, his evidence as an eye-witness to the occurrence is a d oubtful feature. This subm i ssion is not acceptable as P.W.15 himself states that he was s truck off in the bari of Manguli Naik a nd the land of Padmanav S ahu was clearly visible to him from t he bari of Manguli Naik which was at a distance of 200 cubits. P.W.1 might not be in a p o sition from the place where she was s tanding underneath a mango tree to mark where her father wa s at the time of assault on the deceased and she might be thinking that her father had confined himself inside the house of Manguli Naik at the time of assa u lt on the deceased. We are of the vi e w that on the basis of the statement of P.W.1, the evidence of P.W.15 as an eye witness t o the occurrence cannot be disbelieve d .

¶153

The nex t ground of attack on the evidence of P.W.15 by the learned co u nsel for the appellants is that though he stated to have been assaulted by two of the accused per s ons by means of brickbatting, i.e., Brundaban Dehuri and G o uranga Pradhan (A-4) and sustained bleeding injuries on both h is legs and further stated t hat he had also told the police that he had been assaulted and got injured due to brickbatting, but t here is no medical eviden c e to corroborate that he was an injured witness rather it ha s been proved through the I.O. (P.W. 1 6) that he had not stated t o have received injuries due to brickbatting.

¶154

Such su b mission is very difficult to be acce p ted as the I.O. (P.W.16) h a s stated that he issued requisition ( Ext.30) in favour of P.W.1 5 to Begunia Hospital. On the other side of Ext.30, the injuries s ustained by P.W.15 are mentioned, h owever the concerned do c tor from Begunia Hospital could not be examined to prove i t .

¶155

The evi d ence of P.W.15 as an eye witness to the assault on the dec e ased cannot be doubted merely bec a use he failed to state befo r e the I.O. that he himself sustaine d injury due to brickbatting o r that his injury report could not be proved. The evidence given by this witness relating to the assaul t on the deceased is getting corroboration from the medical evidence. No doubt the doctor (P.W.8) has stated that external injury no.(ix) could be caused by f all but the contention of the learned counsel for the appellants t h at all the injuries were possible by fall is not acceptable, as thos e were cut injuries on different part s of the body like left upper arm, right scapula, right leg, right knee, right foot, right leg a nd left foot of different sizes.

¶156

Thus, we are of the view that the learned trial c o urt has rightly placed relian c e on the evidence of P.W.15.

¶157

Corroborating evidence to the evidence of three eye

¶158

witnesses :

¶159

The lea r ned counsel for the appellants co n tended that apart from P. W s.1, 6 and 15, the other eye witnesses like P.Ws.2, 3, 4, 5, 7, 10, 11, 12, 13, 18 and 19 have not im p leaded the appellants in t he assault of the deceased, wher e as the learned counsel f o r the State argued that the ot h er eye witnesses who had n ot seen the assault on the decease d on the land of Padmanav S ahu have stated about the other as p ects of the prosecution cas e and moreover, the evidence of P.W s .3, 10, 11 and 12 corrobo r ate the version of the three eye witnesses regarding the participation of the appellants in the occurr e nce.

¶160

As is r e vealed from the sequence of eve n ts that transpired, on the d ate of occurrence in the morning at a bout 8 a.m., the accused persons assembled near the house of the deceased being ar m ed with different weapons, dama g ed the house of the decea s ed and ransacked the properties. T h ey also caused similar activities in respect of the houses of some other villagers. When the deceased and his family members leaving their house, entere d inside the house of P.W.3 Pandari N aik out of fear to take shelter, one of the accused namely, Bi d yadhar Sahu came over the thatch of P.W.3, pulled out the t h atch to make a hole on th e thatched roof, located the decease d inside

¶161

the house of P.W.3, announced the presence of the dece a sed for which some accuse d persons started breaking and demolishing the house of P.W.3. The deceased tried to escape thro u gh the back door of the house of P.W.3, but the appellants cha s ed him being armed with d ifferent weapons, overpowered him on the land of Padmanav S a hu and then assaulted him to death.

¶162

Apart from the eye witnesses P.Ws.1, 6 a nd 15 whose evidence w e have already discussed, the f o llowing witnesses also sta t e about the various roles played by the appellants on the d a te of occurrence.

¶163

P.W.3 P a ndari Naik has stated that he wa s in his house at the time of occurrence which took place at 8 a . m. The accused persons br o ke and damaged the house of the d e ceased and P.W.15, chased them and their family members to his house. The family m embers of the deceased got panic k ed and rushed to his house to take shelter and shut themselves inside a room and closed th e front door. He further stated that A -1 was armed with a Katu r i, A-2 was armed with a Pharsa, A -3 was armed with a Tangia, A-4 was armed with a Katuri, A -5 was armed with a Kanta , A-6 was armed with a Pharsa and a p pellant Raja Dehuri (dead) w as armed with a Pharsa. The other a ccused persons were armed with thenga, lathi and different k inds of lethal weapons. He f urther stated that seeing the violent m ood of

¶164

the accused person s , he fled away through the back sid e of the house.

¶165

P.W.10 Basanti Dei, the daughter of the d e ceased

¶166

has stated that her house was razed to the ground, he r father was chased by A-1, A-2, A-3, A-4, A-5, A-6 and appellant Raja Dehuri (dead) towa r ds the land of Padmanav Sahu bein g armed with deadly weapon s like Katuri, Kanta, Axe and Bhujali, but she could not go to the r escue of her father.

¶167

P.W.11 C haitan Naik has stated that on the date of occurrence, after h e and his wife were assaulted, he s aw the deceased was runn i ng towards Gahira after coming ou t of the house of P.W.3 b e ing chased by A-1, A-2, A-3, A- 4 , A-5, appellant Raja Dehuri (dead) armed with deadly weapons .

¶168

P.W.12 Prafulla Majhi has stated that a ccused Bidyadhar climbed o n the thatch roof of P.W.3, made a p e ep hole and announced tha t the deceased had taken shelter the r e, as a result of which som e of the accused persons started brea k ing the house of P.W.3. H e further stated that the deceased e scaped towards Gahira an d he was chased by appellant Raja Dehuri (dead), A-1, A-2, A-3, A-4, A-5, A-6 being armed with we a pons. While a s sessing the evidence of the eye witnesses P.Ws.1, 6 and 15 r e garding the participation of the appellants in the assault of the d e ceased and other corroborating evidence of

¶169

P.Ws.3, 10, 11 and 12, we have kept in view the ratio la i d down

¶170

by the Hon'ble Supreme Court in the case of Muthu Naicker

¶171

(supra), wherein it i s held as follows:-

¶172

“6. Whe r e there is a melee and a large num b er of assailants and number of witnesses claim to have witnessed the occurrence from differ e nt places and at different stages of the occurre n ce and wh e re the evidence as in this case is undoubt e dly partisan evidence, the distinct possibili t y of innocent being falsely included w ith guilty c a nnot be easily ruled out. In a facti o n- ridden s o ciety where an occurrence takes pl a ce involvin g rival factions, it is but inevitable t h at the evidence would be of a partisan nature. In such a situation to reject the entire evidence on the sole ground that it is partisan is to s h ut one's eyes to the realities of the rural life in o ur country. Large number of accused would go unpunis h ed if such an easy course is chart e d. Simulta n eously, it is to be borne in mind tha t in a situation as it unfolds in the case before us, the easy tendency to involve as many person s of the op p osite faction as possible by me r ely naming t hem as having been seen in the melee is a tendency which is more often discernible and is to be eschewed and, therefore, t he evidenc e has to be examined with utmost c a re and cau t ion. It is in such a situation that t his Court in Masalti -Vrs.- State of U.P. : A.I.R.

¶173

1965 S.C. 202 adopted the course of adopting a worka b le test for being assured about the r ole attributed to every accused.”

¶174

The Ho n ’ble Supreme Court in the case of Masalti

¶175

(supra) has held as f ollows:-

¶176

“15…..Where a crowd of assailants who a re member s of an unlawful assembly proceeds to commit a n offence of murder in pursuance of t he common object of the unlawful assembly, i t is often n o t possible for witnesses to describe accurately the part played by each one of t he assailan t s. Besides, if a large crowd of per s on armed w ith weapons assaults the inten d ed victims, it may not be necessary that all of th e m have to t ake part in the actual assault.”

¶177

In the c a se of State of Maharashtra -Vrs.- Ramlal Devappa Rathod and others reported in (2015) 15 Supreme Court Cases 77 , it is held as follows:-

¶178

“24. The liability of those members of t he unlawful assembly who actually committed t he offence would depend upon the nature a nd accepta b ility of the evidence on record. T he difficult y may however arise, while considering the liab i lity and extent of culpability of th o se who m a y not have actually committed t he offence but were members of that assem b ly. What binds them and makes them vicariously liable is the common object in prosecution of

¶179

which the offence was committed by ot h er membe r s of the unlawful assembly. Existenc e of commo n object can be ascertained from t he attendin g facts and circumstances. For exam p le, if more than five persons storm into the ho u se of the v i ctim where only few of them are ar m ed while th e others are not and the armed pers o ns open a n assault, even unarmed persons a re vicariou s ly liable for the acts committed by those a r med persons. In such a situation it m ay not be difficult to ascertain the existence of commo n object as all the persons had stor m ed into the house of the victim and it could be assesse d with certainty that all were guided by the common object, making every one of th e m liable. T hus when the persons forming t he assembl y are shown to be having same interest in purs u ance of which some of them come armed, w hile others may not be so armed, s u ch unarme d persons if they share the same commo n object, are liable for the acts committ e d by the armed persons.”

¶180

Thus th e learned counsel for the State is rig h t in his

¶181

submission that t h e evidence of P.Ws.3, 10, 11 a nd 12 corroborate the ver s ion of the three eye witnesses P.Ws. 1 , 6 and 15 regarding the participation of the appellants in the occurrence. In the face of such clear, consistent and cogent evidence on record, we are of the view that on the date of

¶182

occurrence, the ap p ellants being armed with deadly w eapons formed an unlawfu l assembly, forcibly damaged the h o use of P.W.3, chased the deceased who tried to escape thro u gh the back door of the h o use of P.W.3 and overpowered him on the land of Padmanav S ahu and assaulted him with weapo n s as a result of which t h e deceased succumbed to the injuries. Scrutinising the evi d ence cautiously, we found that it i s not a case of mere presence of the appellants in the unlawful a s sembly as members of the unlawful assembly or as curious sp e ctators but it indicates th e ir participation in the commission of the offence by overt a c t or knowing that the offence which was committed was likely to be committed by any membe r of the unlawful assembly in prosecution of the common objec t of the unlawful assembly and that they becoming or contin u ing to remain members of the unlawful assembly and their parti c ipation by the overt act is s a tisfactorily established.

¶183

The lea r ned counsel for the appellants argued that the weapons held b y the appellants were sharp cutting w eapons and therefore, the injury no.(ix) as per the post morte m report which is a lacerate d injury could not have been possible by any of such weapons. He placed reliance in the case o f Hallu (supra), the Hon'ble Supreme Court held as follows:-

¶184

“11. Th e post-mortem report prepared by Dr. N. Jain sh o ws that on the body of Jagdeo w e re found t h ree bruises and a haematoma. On t he body o f Padum were found four lacera t ed wounds and two bruises. According to the e ye witness e s, the two men were attacked w ith lathis, s p ears and axes but that clearly sta n ds falsified by the medical evidence. Not one of t he injuries found on the person of Jagdeo a nd Padum c ould be caused by a spear or an a x e. The Hig h Court however refused to attach a ny importa n ce to this aspect of the matter by saying that the witnesses had not stated t h at “the miscreants dealt axe blows from the sharpside or used the spear as a piercing weapon.” According to the High Court, axes and spe a rs may ha v e been used from the blunt side a nd therefor e , the evidence of the eyewitnes s es could s a fely be accepted. We should h a ve thought that normally, when the witness s a ys that an axe or a spear is used, there is no warrant for supposing that what the witn e ss means i s that the blunt side of the weapon w as used. If that be the implication, it is the dut y of the pros e cution to obtain a clarification from t he witness as to whether a sharp-edged or a piercing instrument was used as a bl u nt weapon.”

¶185

In the c a se in hand, the doctor (P.W.8) has noticed

¶186

eight cut injuries o n different parts of the deceased whi c h were possible by sharp c utting weapons. The doctor has sp e cifically stated that injury n o .(ix) could be caused by Katuri and he has stated that M.O.II w as the Katuri produced before him for his opinion. Therefore, the oral evidence and post morte m report findings in the cas e of Hallu (supra) and the case in hand is completely different .

¶187

Whether the act of the appellants fall within 302/149 I.P.C. or 304 Part-II/149 I.P.C. :

¶188

The pos t -mortem report (Ext.14) proved b y P.W.8 indicates that out o f the nine injuries, eight injuries wer e on the non-vital parts of the body like left upper arm, right s capula, right leg, right foot, left leg, left foot and only one injury was on the left frontal region. Of course, the doctor has stated th a t there was fracture of hu m erus bone at its middle and fracture of right second and third metacarpal bones. However, none of the injuries has been opined to be individually or collectively sufficient in the or d inary course of nature to cause death. The weapons which wer e in the hands of the appellants wer e deadly weapons and they c ould have easily caused injuries on the vital parts of the body of the deceased and more in numbers had they got intention to co m mit murder of the deceased. There is no

¶189

evidence as to who caused the fatal injury on the head. Though the cause of death was opined due to laceration of the brain matter and associa t ed by multiple injuries on different p arts of the body, but the d o ctor admits in the cross-examination that he had not mentioned i n Ext.14 that the death of the decea s ed was due to shock and c u mulative effect of all the injuries. In Ext.14, it is mentioned that the death was due to injury to head causing laceration of brain m atter.

¶190

In the case of Nadodi Jayaraman (supra), the

¶191

Hon’ble Supreme C o urt held as follows:

¶192

“19.....A critical analysis of the injuries recei v ed by the deceased, which have been extrac t ed elsewhe r e in the judgment, goes to show t h at the dec e ased had suffered 15 lacerations, 12 bruises a nd five contusions. Injuries 1 to 11 h ad been ca u sed on his legs, knees, ankle etc., w h ile injuries 26 to 29 were on the thigh and lo w er part of t he abdomen. Injuries 12 to 17 and 32 had bee n caused on the forearm, elbow and t he possibili t y of those injuries having been recei v ed by the d eceased while trying to ward off t he blows o n the vital parts of his body cannot be ruled o u t. The remaining injuries were t wo bruises o n the front and on the right side of t he chest and two lacerations of 2 x 1 cms. near t he right side of the nose and the inner end of t he right ey e brow. There were two lacerations on

¶193

the righ t temporal region and one on the ri g ht occipital region. It was only injury No.22 v iz. "lacerati o n on the back of the left side of t he frontal region, 5 x 2 cms. bone deep, fissu r ed fracture 10 cms. vertical of frontal bo n e, extending to base with commentated fractur e of the left orbital place", which was found to be sufficien t to cause death in the ordinary course of natur e . According to the medical witness, all the inju r ies, except injury No.22, were simpl e in nature and could not have by themselves cau s ed death b u t those injuries could have precipita t ed the de a th. Since, the evidence of t he prosecu t ion unmistakably asserts that inju r ies had bee n caused to the deceased by all the six accused and some injuries had been cau s ed exclusiv e ly by A-2 and A-3 alternatively, during the thir d part of the occurrence, it cannot be said wi t h certainty that the intention of t he accused was to cause death of Pratap Chand r an decease d . This is more so because according to the me d ical evidence, the deceased had died "due to shock and haemorrhage on account of multiple injuries", and according to t he prosecu t ion version all the seven accused h ad caused t he injuries and not only A-2 and A-3. The acc u sed party was armed according to t he prosecu t ion evidence, with iron rods and pi p es and not with any other lethal weapon. If t he accused had the intention to cause death of t he

¶194

decease d , they would have probably co m e armed w ith more formidable weapons. Ag a in, looking t o the nature of injuries, which exc e pt for injur y No. 22, were only simple and no ot h er grievous injury was even caused, it appears to us that t he accused possibly wanted to chas t ise the dec e ased for his trade union activities. T he seat of t he injuries as also their nature forti f ies our vie w . According to the prosecution c a se itself, af t er Pratap Chandran had fallen down in the thir d part of the incident, none of t he accused took advantage and caused any ot h er injury t o him. Most of the injuries, as alre a dy noticed, were on non-vital parts of the bo d y. From t h e evidence and circumstances of t he case, th e appellants do not appear to have h ad the inte n tion causing the death of the decea s ed or even causing such bodily injury as was likely to caus e death. They can at the best be attributed with the knowledge that their act w as likely to cause death or to cause such bo d ily injury as was likely to cause death, sinc e a number of injuries had been caused and inj u ry No.22 w as sufficient in the ordinary course of nature t o cause death. It is not as if A-2 and A -3 alone w e re armed with iron rods and pipes, w ith which t he injuries were caused and t h eir acquitte d co-accused were unarmed. T he acquitte d co-accused, according to t he prosecu t ion evidence, were also armed with i r on

¶195

rods a n d pipes and as such it would be hazardo u s to guess as to which blow was cau s ed by whic h accused. If common intention to ca u se death h a d been established in the case, t he prosecu t ion would not have been required to prove w h ich of the injuries was caused by which accused to sustain the conviction of the accu s ed with the aid of Section 34 I.P.C., but in a c a se like this, where five of the co-accused st a nd acquitte d and the common intention to ca u se death i s not established beyond a reasonable doubt, t h e prosecution must establish the ex a ct nature of the injuries caused to the deceased by the accused with a view to sustain the conviction of that accused for inflicting that partic u lar injury. The evidence on the record does not l e ad to the c o nclusion that A-2 and A-3 alone cau s ed all the i n juries to the deceased with the intention to caus e his death. The broad circumstances of the cas e impel us to hold that the com m on intentio n of A-2 and A-3 was not to cause t he death o f the victim and therefore, neither of them can be held guilty of the offence un d er Section 302/34 IPC. Since, the deceased d id succum b to the injuries, caused collectively, t he appellan t s can only be held guilty of committing culpable homicide not amounting to murder. T he act can be said to have been committed by t he accused with the knowledge that it was likely to cause d e ath or to cause such bodily injury as

¶196

was likely to cause death of Pratap Chandr a n. Learned Counsel for the appellants have n ot been able to persuade us to subscribe to t he view th a t A-2 and A-3 can only be clothed w ith the in t ention of causing grievous h u rt, punisha b le under Section 325/34 IPC. T he offence o f the appellants would, in our opini o n, squarely fall under Section 304 Part II I P C. Thus, s etting aside the conviction of t he appellan t s for an offence under Section 302 / 34 IPC, we alter their conviction and hold th e m both gui l ty of the offence under Section 304 Part II IPC.”

¶197

In the c ase of Molu and others -Vrs.- State of Harayana reported in A.I.R 1976 Supreme Court 2499 : (1978) 4 Supreme Court Cases 362 , it has been held that in a situation where the multiple injuries were caused on the deceased by lathis and were of minor character and there was no material to show t hat the accused did not intend t o cause deliberate murder, the accused is said to have commi t ted an offence under Secti o n 304, Part-II, I.P.C and not under Section 302, I.P.C.

¶198

In the c a se Chuttan and others -Vrs.- State of Madhya Pradesh , reported in 1994 Criminal Law Journal 2097 (SC) : 1994 Supreme Court Cases (Cri) 1801 , it has been held that where the accused person inflicted inj u ries on

¶199

the deceased by sti c k portion of the spear on any vitals part of the body, the accus e d had no intention to cause the death or to cause such injuries, which were sufficient in ordinary c o urse of nature to cause d e ath, but had knowledge of causi n g such injuries they are likely to cause death of the deceas e d, the accused can be con v icted under section 304, Part-II, I.P. C .

¶200

In the c a se of Dilip Kumar Pradhan & Another -Vrs- State of Orissa reported in (2000) 18 Orissa Criminal

¶201

Reports 185, this C ourt has observed as follows:

¶202

F r om the evidence on record, it appe a rs that the r e were no previous enmity between t he parties a nd the assault was started after th e re was sa m e altercation with regard to return of the radi o -cum-tape recorder to the deceased by the acc u sed persons which, he delivered to them, f or purchase. According to the e y e- witness e s, the injuries were inflicted by a l a thi and a web belt by both the accused-appella n ts. In the circumstances, the accused pers o ns cannot b e imputed with the intention of causing death o f the deceased, but however, knowle d ge could b e imputed to the accused that their a ct was likely to cause death. Law is well settled that wh e re the multiple injuries received by t he decease d were caused by blunt weapons like

¶203

lathi an d the injuries were not on any vital part of the body and there in nothing to show t h at the acc u sed intended to cause the deliber a te murder o f the deceased, the offence attributable to the a ccused persons will be under Section 304, P a rt-II and not under Section 3 0 2, I.P.C......

¶204

In t h e case at hand, it has not been pro v ed that an y one of the injuries inflicted on t he decease d by the accused-appellants w e re sufficien t in the ordinary course of nature to cause d e ath, but the cumulative effect of t he injuries inflicted was the cause of death. T he ocular e vidence coupled with the medical evidenc e shows that the blows with lathi a nd web bel t were given on different parts of t he body in c luding in the palatine region and th e re was no premeditation and it all happe n ed because of the allegation against the accu s ed that the tape recorder-cum-radio sought to be sold its a stolen property and return of the sa m e on dem a nd by the deceased, the accused per s on fall und e r Section 304, Part-II, I.P.C. From t he nature of the injuries and the weapons used like lathi an d web belt and the place of the inju r ies on the b ody of the deceased, it cannot be said that the accused-appellants intended to ca u se death. The knowledge that their act was likel y to cause d e ath of the deceased however can be attributed and as such, we are of the conside r ed

¶205

opinion t hat in the facts and circumstances of the c a se, the accused-appellants h a ve committ e d an offence under Section 304, p a rtII/34, I.P.C. and their conviction under Section 302/34, I.P.C. cannot be sustained. In view of what h a s been discussed in the proceeding paragra p hs and the evidence on record, t he convicti o n recorded by the learned Sessi o ns Courts has to be confirmed.”

¶206

In the c ase of Kalinder Bharik -Vrs.- State of Himachal Pradesh reported in 2000 Supreme Court Cases

¶207

(Cri) 96 , the Hon’ble Supreme Court has held as follows:

¶208

“7. None of the injuries can be said to be individu a lly or collectively sufficient in t he ordinary course of nature to cause death. Thi s is a case w here death became the conseque n ce because of excessive bleeding. Therefore, i t is not a case which can be brought under any o ne of the f o ur clauses under section 300 I.P.C. It would r e main only within the range of culpable homicid e not amounting to murder.

¶209

We therefore, alter the conviction to section 304 Part II IPC.”

¶210

In the c ase of Sudina Prasad and others -Vrs.State of Bihar reported in 2003 Supreme Court Cases

¶211

(Cri) 1692 , the Ho n ’ble Supreme Court has held as follo w s:

¶212

“5. Lear n ed counsel for the appellants felt that it is more prudent to focus his arguments on t he aspect o f altering conviction from section 3 0 2, IPC. For supporting his contention, lear n ed counsel brought to our notice two import a nt features in the evidence; one is that A-1 Sudina Prasad w as armed with a gun which was a live gun and accused Vashisht Gope was armed w ith a pistol. In spite of such possession of lethal weapon s , neither of them used it. Lear n ed counsel contended that if the intention w as murder t he deceased, at least A-1 would h a ve fired the gun.

¶213

The second feature is that 11 out of 12 injuries did not cause any damage to t he internal o rgans. It is the horizontal bruise on t he left side of the back, which possible would h a ve caused the fracture of the ribs.

¶214

We f e el that the aforesaid arguments ba s ed on the a bovementioned two broad features i s a strong c ircumstance for us to think that t he common intention of the assailants was only to thrash t he deceased and to inflict him w ith injuries. The grievous injury caused need n ot necessa r ily have been intended by th e m. Nonetheless they should have been credited w ith the kno w ledge that such injuries could possibly result in his death.

¶215

For t h e aforesaid reasons, we are inclined to accept t h e arguments of the learned counsel for the app e llant. We, therefore, alter the conviction from Section 302 IPC to Section 304 Part - II, IPC. He n ce, we therefore, convict the appell a nt for the s aid offence read with Section 149 I PC instead o f 302 IPC.”

¶216

From th e evidence and circumstances of the c a se and the ratio laid down i n the aforesaid citations, we are of t h e view that the appellants do not appear to have had the i n tention causing the death o f the deceased or even causing suc h bodily injury as was likel y to cause death. They can at the b est be attributed with the knowledge that their act was likely t o cause death or to cause s u ch bodily injury as was likely to caus e death. We, therefore, alter the conviction of the appellants from section 302/149 of I.P.C. t o section 304 Part-II I.P.C./149 of I.P.C. There are enough m aterials on record that the appellan t s were not only the mem b ers of unlawful assembly as define d under section 142 of I.P. C ., but they have used force or violence in prosecution of the common object of such assembly a n d thus committed offence of rioting as defined under section 146 of I.P.C. punishable under section 147 of I.P.C. and th e y were armed with deadly weapons and thus there is no erro r in the

¶217

impugned judgmen t of the learned trial Court in convic t ing the appellants under se c tions 147 and 148 of I.P.C.

¶218

The ap p ellants were taken into judicial custody in connection with the case on August 1994 and were releas e d from judicial custody on b ail 19.05.1997 and after pronounce m ent of judgment by the learned trial Court on 19.12.1997, th e y were again taken into ju d icial custody and were enlarged on bail by this Court vide order dated 06.03.2000 in this CRLA and as such they have remained in custody for a period of five years. A-1, A- 2 and A-4 are now a ged more than 60 years and A-3, A- 5 and A- 6 are now aged mo r e than 55 years. No adverse report h a s been produced against a n y of the appellants though they are on bail for more than 25 y e ars. The occurrence in question took place in the year 1994 and in the meantime, more than 30 years have passed. Therefore, we are of the view that no useful p urpose would be served i n sending the appellants to custod y again. Keeping in view all the facts and circumstances of the cas e , while altering the convicti o n of the appellants from Section 30 2 /149 of I.P.C. to Section 30 4 Part-II I.P.C./149 of I.P.C., the sen t ence of imprisonment is di r ected to be reduced to the period already undergone.

¶219

Conclusion :

¶220

In the r e sult, the Criminal Appeal is allowed in part. The conviction of t h e appellants under section 302/14 9 of the I.P.C. is altered to one under section 304 Part-II/149 of the I.P.C. and the sentence of imprisonment is reduced to th e period already undergone. No separate sentence is awarded for the conviction of the ap p ellants under sections 147 and 148 o f I.P.C.

¶221

Before p arting with the case, we would like t o put on record our apprecia t ion to Mr. Devashis Panda, learned counsel for his preparation a nd presentation of the case before the Court and rendering valu a ble help in arriving at the decisio n above mentioned. This C o urt also appreciates the valuable h e lp and assistance rendered by Mr. Jateswar Nayak, learned A d ditional Government Advocate for the State.

¶222

S.K. Sahoo, J.

¶223

.......................... . .......... Chittaranjan Dash, J.

¶224

Orissa High Court, Cuttack The 21^st August 2025/PKSaho o

¶225

Signature Not Verified

¶226

Digitally Signed Signed by: PRAMOD KUMAR SAHOO Reason: Authentication Location: HIGH COURT OF ORI SSA Date: 21-Aug-2025 11:30:10

Dinabandhu v. State

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Dinabandhu v. State

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