Bhagya Vs State

IN THE HIGH COURT OF ORISSA, CUTTACK

Criminal Appeal No.321 of 1996

An appeal under section 374(2) of Cr.P.C. from the judgment and order dated 22.11.1996 passed by the 1^st Additional Sessions Judge, Berhampur in S.C. No.44 of 1993/S.C. No.273/93 G.D.C.

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Bhagya @ Bhagirathi Bisoi

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Babu @ Babula Naik

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Basant Naik @ Bapana

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Aruna Naik

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Bidu @ Bidyadhar Naik

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Dillip Naik

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Lambodar Naik

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Anjan @ Ranjan Naik

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Promod Naik

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Pruthibi Naik

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Bijuli Naik 12. Bishnu Bisoi @ Naik 13. Bira Naik ....... Appellants

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-Versus-

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 09-Jul-2025 10:28:34

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State of Odisha ....... Respondent For Appellant: - Mr. Saroj Kumar Routray Amicus Curiae For Respondent: - Mr. Sarat Chandra Pradhan Addl. Standing Counsel

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Criminal Appeal No.321 of 1996

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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 and Judgment: 01.07.2025

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By the Bench: This Criminal Appeal was filed by thirteen appellants i.e. Bhagya @ Bhagirathi Bisoi (A-1), Babu @ Babula Naik (A-2), Basant Naik @ Bapana (A-3), Aruna Naik (A-4), Bidu @ Bidyadhar Naik (A-5), Dillip Naik (A-6), Lambodar Naik (A-7), Anjan @ Ranjan Naik (A-8), Promod Naik (A-9), Pruthibi Naik (A10), Bijuli Naik (A-11), Bishnu Bisoi @ Naik (A-12) and Bira Naik (A-13), out of which A-4 Aruna Naik, A-5 Bidu @ Bidyadhar Naik, A-8 Anjan @ Ranjan Naik, A-11 Bijuli Naik and A-13 Bira Naik are dead and vide order dated 27.08.2024, this appeal has been directed to be abated in respect of those appellants.

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The thirteen appellants who have preferred this appeal along with six other accused persons faced trial in the Court of learned 1^st Additional Sessions Judge, Berhampur in S.C. No.44 of 1993/ S.C. No.273/93 G.D.C. for commission of offences punishable under sections 148/302/149 of the Indian Penal Code (hereinafter „I.P.C.‟) on the accusation that on

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05.03.1993 at about 10.00 a.m. at the embankment of Kansari Sahi Tank of Jagmohan Gram Panchayat, they formed an unlawful assembly and in prosecution of common object of such assembly, they committed the offence of rioting being armed with deadly weapons kati, sword, iron rod, pharsa etc. and thereby committed murder of Panchu Naik and Igni Naik (hereinafter „the deceased persons‟).

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The learned trial Court vide impugned judgment and order dated 22.11.1996 acquitted six accused persons. However, A-1 Bhagya @ Bhagirathi Bisoi, A-2 Babu @ Babula Naik, A-3 Basant Naik @ Bapana, A-4 Aruna Naik and A-5 Bidu @ Bidyadhar Naik were found guilty under sections 148/302/149 of the I.P.C. and they were sentenced to undergo R.I. for life for the offence under section 302/149 of the I.P.C., however, no separate sentence has been awarded for their conviction under section 148 of the I.P.C. So far as appellant nos.6 to 13 are concerned, it was held that that they had the knowledge being members of unlawful assembly that an offence of culpable homicide was likely to be committed and accordingly, they were found guilty under sections 304 Part-II/149 of the I.P.C. and sentenced to undergo R.I. for five years each and to undergo

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R.I. for one year each for the offence under section 148 of the I.P.C. and both the sentences were directed to run concurrently.

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Prosecution Case :

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The prosecution case, as per the first information report (hereinafter „F.I.R.‟)(Ext.11) lodged by Habuli Naik (P.W.14) on 05.03.1993 before the Inspector in-charge of Aska police station, in short, is that there was a civil dispute between the parties for which cases were instituted including a proceeding under section 107 of Cr.P.C. and on the date of occurrence i.e. 05.03.1993, the deceased Panchu Naik along with his father deceased Igni Naik had come to the spot which was the embankment of Kansari Sahi tank of Jagmohan Grampanchayat to cut some trees and while they were cutting the trees, at about 10 a.m., the accused persons being armed with sharp cutting weapons like kati, pharsa, axe etc. reached there. Deceased Panchu Naik was assaulted by A-2 Babu @ BabulaNaik, A-3 Basant Naik @ Bapana and A-6 Dillip Naik by means of sharp cutting weapons on different parts of his body. The deceased Igni Naik was also assaulted by A-1 Bhagya @ Bhagirathi Bisoi, A-12 Bishnu Bisoi and others by sharp cutting weapons. As a result of such assault, both the deceased sustained injuries and thereafter, they were shifted to Aska Hospital for treatment and

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on the way, the deceased Panchu Naik died at Mundamorei Bus Stand and the deceased Igni Naik was admitted in Aska Hospital for treatment and then P.W.14 came to Aska police station to lodge the F.I.R.

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On the oral report of P.W.14, Prafulla Chandra Barik (P.W.28), the Inspector in-charge of Aska police station reduced it into writing and registered as Aska P.S. Case No.34 dated 05.03.1993 for the offences under sections 148/302/307/149 of the I.P.C. against 21 accused persons and directed S.I. of police Sri Lokanath Sahu (P.W.25) to take up investigation of the case.

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P.W.25,the I.O. during investigation examined the informant (P.W.14), visited the Govt. Hospital, Aska where the deceased Igni Naik was being hospitalized and he issued requisition to the Medical Officer requesting to record the dying declaration of the deceased Igni Naik. P.W.25 then visited the village Mundamorei where he found the dead body of the deceased Panchu Naik and held inquest over the dead body and prepared the inquest report vide Ext.7/1. He collected the blood stained earth, sample earth from the place of occurrence and seized the same as per seizure list Ext.16. Then he examined some witnesses, sent the dead body of the deceased Panchu Naik for post mortem examination to F.M.T. Department,

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M.K.C.G. Hospital, Berhampur. He arrested some of the accused persons and examined the A-3 Basant Naik @ Bapana and seized one sword suspected to have stained with blood from the possession of the said appellant vide seizure list Ext.12/1. At the instance of the A-12 Bishnu Bisoi @ Naik, one knife was seized from his house as per seizure list Ext.13/1. Similarly, at the instance of A-4 Aruna Naik (dead), one tangia was seized as per seizure list Ext.14/1. At the instance of A-5 Bidu @ Bidyadhar Naik (dead), one Parsuram tangia stained with blood was seized as per seizure list Ext.15/1. The I.O. received telephonic message about the death of the deceased Igni Naik from the Medical Officer on 06.03.1993 and he visited Aska Hospital, held inquest over the dead body and prepared the inquest report vide Ext.18 and sent the dead body for post-mortem examination. The I.O. after post mortem examination, received the wearing apparels of the deceased Panchu Naik and seized it under the seizure list Ext.6/1. He also seized the wearing apparels of the deceased Igni Naik under the seizure list Ext.5/1. On 13.03.1993, the I.O. arrested Bibhisan Naik (acquitted by the trial Court) and forwarded him to the Court. He received information that the Medical Officer (P.W.1) has recorded the dying declaration of the deceased Igni Naik.

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P.W.28 took over charge of investigation from P.W.25 on 15.03.1993, examined some witnesses, sent the seized articles to S.F.S.L., Rasulgarh for chemical analysis. On completion of investigation, he submitted charge sheet on 30.05.1993 against the appellants and other accused persons.

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Framing of Charges :

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After submission of charge sheet, the case was committed to the Court of Session after complying due formalities. The learned trial Court framed charges against the appellants and other accused persons as aforesaid and since the appellants and other accused persons refuted the charges, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute them and establish their guilt.

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Prosecution Witnesses, Exhibits and Material Objects :

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During the course of trial, in order to prove its case, the prosecution has examined as many as twenty eight witnesses.

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P.W.1 Dr. Seikh Jebrail was the Medical Officer, Govt. Hospital, Aska, who treated the deceased Igni Naik in the hospital and recorded his dying declaration (Ext.1/1) on police requisition. He noticed seven incised wounds on different parts of

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body of the deceased and opined that such injuries were possible by sharp cutting weapon and the impact of all the injuries taken together was sufficient to cause death.

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P.W.2 Bala Raju Das, P.W.3 Radha Naik, P.W.4 Dillip Kumar Mishra, P.W.5 Somonath Sahu, P.W.6 Damodar Mohanty, P.W.7 Duryadhan Sahu, P.W.13 Santosh Muni, P.W.16 Bali Naik, P.W.17 Tara Naik, P.W.19 Niladri Naik, P.W.20 Udayanath Sahu, P.W.21 Jalandhar Naik, P.W.23 Somanath Naik and P.W.24 Mohan Naik pleaded their ignorance about the case.

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P.W.8 Dr. Syamaghan Biswal was the Medical Officer,

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Govt. Hospital, Aska who treated the deceased Igni Naik when he was admitted into the hospital on 05.03.1993 where the deceased died on 06.03.1993. He prepared the bed head tickets.

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P.W.9 T. Bairagi and P.W.10 Prafulla Kumar Mohapatra were the constables attached to Aska P.S., who were deputed to village Mundamorei and they brought the dead body to the hospital for post mortem examination.

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P.W.11 Pravakar Nahak was the Havildar attached to

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Aska P.S., who was deputed to village Mundamorei to watch the dead body.

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P.W.12 G. Trinath Rao was the constable attached to Aska P.S. who carried the dead body of the deceased Igni Naik to Purushottampur Hospital for post mortem examination and also produced the wearing apparels of the deceased before O.I.C.

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P.W.14 Habuli Naik is the informant in the case and

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he is an eye witness to the occurrence.

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P.W.15 Lokanath Naik found the dead body of the deceased Panchu Naik on the main road of village Mundamorei near a tea stall at 4.00 p.m. in a bleeding condition.

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P.W.18 Debaki Naikani is the widow of the deceased Igni Naik and mother of the deceased Panchu Naik and she is an eye witness to the occurrence.

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P.W.22 Kuntala Naikani is the mother-in-law of the

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deceased Panchu Naik and she is a post-occurrence witness.

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P.W.25 Lokanath Sahu is the Investigating Officer in

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the case.

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P.W.26 Dr. Asutosh Mohapatra was the Medical Officer who conducted the post mortem examination over the dead body of the deceased Igni Naik and proved his report vide Ext.20.

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P.W.27 Dr. Nayan Kishore Mohanty was the Asst. Professor, F.M.T. Department, M.K.C.G. Medical College, Berhampur who conducted post-mortem examination over the dead body of the deceased PanchuNaik and proved his report vide Ext.21.

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P.W.28 Prafulla Chandra Barik was the I.I.C. of Aska P.S. who reduced the oral statement of informant (P.W.14) into writing on 05.03.1993 and directed P.W.25 to take up investigation of the case and subsequently he took over investigation from P.W.25 and on completion of investigation, submitted charge sheet.

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The prosecution exhibited twenty four documents. Ext.1/1 is the dying declaration, Ext.2/1 is the injury report, Ext.3 is the bed head ticket, Ext.4/1 is the report of P.W.1, Ext.7/1 is the inquest report, Exts.9, 9/1 & 9/2 are the bed head tickets, Ext.10 is the report of P.W.8, Ext.11 is the F.I.R., Ext.16 is the seizure list, Ext.17 is the dead body challan, Ext.18 is the inquest report, Ext.19 is the dead body challan, Ext.20 is the post mortem report of deceased Igni Naik, Ext.21 is the post mortem report of Panchu Naik, Ext.22 is the opinion of P.W.27, Ext.23 is the forwarding letter and Ext.24 is the chemical examiner report.

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The prosecution also proved four material objects. M.O.I is the pharsa, M.O.II is the sword, M.O.III is the axe and M.O.IV is the bhujali.

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Defence Plea :

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The defence plea of the appellantswas that on account of civil dispute, they have been falsely entangled in the case. The defence has examined two witnesses in its behalf.

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Findings of the Trial Court:

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The learned trial Court after assessing the evidence on record, came to hold that the prosecution has successfully established that both the deceased died homicidal death and mainly relying on the eye witnesses account of P.W.14 and P.W.18 coupled with the dying declaration (Ext.1/1) recorded by the Medical Officer (P.W.1), though acquitted six accused persons, but found the appellant nos.1 to 5guilty under section 302/149 of the I.P.C. holding that the deceased Panchu received pharsa, sword, kati blows from them which caused bodily injuries sufficient to cause death in ordinary course of nature.So far as the deceased Igni is concerned, learned trial Court has excluded the evidence of the eye witnesses and holding the dying declaration of deceased Igni made before the doctor (P.W.1) to be true and reliable, found that A-1 Bhagya @ Bhagirathi Bisoi,

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A-3 Basant Naik @ Bapana and A-5 Bidu @ Bidyadhar Naik (dead) to be liable for his murder. The learned trial Court found the Appellant nos.6 to 13 guilty under sections 304 Part-II/149 of the I.P.C. holding that being the members of unlawful assembly, they had knowledge that an offence of culpable homicide was likely to be committed by them being present at the spot and using the weapons. It was further held that the accused persons formed an unlawful assembly in prosecution of their common object to commit the murder of both the deceased, who were cutting trees and were armed with weapons and as such they are liable under section 148 of I.P.C. and accordingly, all the appellants were found guilty under section 148 of I.P.C.

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Contentions of the Parties:

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Mr. Saroj Kumar Routray, learned Amicus Curiae appearing for the appellants argued that there are contradictions in the evidence of two eye witnesses i.e. P.W.14 and P.W.18 relating to the participation of the appellants in the assault of the two deceased and though A-6DillipNaik, A-10PruthibiNaik and A- 12BasantNaik have been found guilty under section 304 partII/149 of the I.P.C., but none of the eye witnesses have attributed any specific overt act against these three appellants

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except stating that they came to the spot being armed with deadly weapons for which they were held guilty under section 148 of I.P.C. Learned Amicus Curiae further submitted that though the A-7 Lambodar Naik and A-9 Pramod Naik have been found guilty under section 304 Part-II/149 of the I.P.C., but in the dying declaration of the deceased Igni Naik recorded by P.W.1, the names of A-7 and A-9 did not find place which was relied upon by the learned trial Court and the eye witnesses have not stated that these two appellants participated in the assault of the deceased Panchu Naik and therefore, the learned trial Court was not justified in convicting appellant nos.6, 7, 9, 10 and 12 under sections 304 Part-II/149 of the I.P.C. merely because they were in the unlawful assembly holding weapons. Learned Amicus Curiae further submitted that in view of the available materials on record, it is the fit case where the benefit of doubt should be extended in favour of the appellants.

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Mr. Sarat Kumar Pradhan, learned Additional Standing Counsel appearing for the State of Odisha, on the other hand, supported the impugned judgment and submitted that even though there are some contradictions in the evidence of the two eye witnesses i.e. P.W.14 and P.W.18 relating to the specific overt act attributed against different appellants, but otherwise,

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their evidence is consistent and therefore, it is not a case to interfere with the impugned judgment and order of conviction and as such the appeal should be dismissed.

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Whether the deceased persons met with homicidal death? :

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Adverting to the contentions raised by the learned counsel for the respective parties, let us first examine the evidence on record as to how far the prosecution has proved that both the deceased met with homicidal death.

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The evidence of P.W.27, the doctor, who conducted the post mortem examination over the dead body of the deceased Panchu Naik on 06.03.1993 in F.M.T. Department, M.K.C.G. Medical College & Hospital indicates that he noticed the following injuries:

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External Injuries :

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Cut wound 21 cm. x 3 cm. x cranial cavity deep exposing the skull bone underlying with a cut fracture of 9 cm. long through which the brain matter was coming out on the frontal region more towards right situated 14.5 cm. above and back to glabella. Matting of scalp hair with blood present;

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Cut wound 3 cm. x 0.6 cm. x scalp thickness on the right frontal region 8 cm. above the midpoint of right eye brow. Matting of scalp hair with blood present;

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Cut wound 9 cm. x 1 cm. involving the skull bone underlying with a cut fracture of 9 cm. long on the left parietal region mostly towards vertex 12 cm. above the root of the left ear. Matting of scalp hair with blood present;

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Pressure abrasion 9 cm. x 0.7 cm. situated on the right deltoid region 4 cm. below the lateral end of right clavicle;

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Abrasion 2 cm. x 2 cm. at the back of right elbow soiled with dust and sand particles;

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One „L‟ shaped abrasion, the vertical limb of „L‟ measures 9 cm. and horizontally limb of „L‟ measures 3 cm. situated on the right lateral side of the abdomen and lower chest;

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Cut wound spindle shaped regular margins with acute angle at both ends placed obliquely on the back towards right including the mid-line of size 7 cm. x 2 cm. x muscle and spine of vertebra deep situated 14 cm. below the tip of 7^th cervical spine corresponding to 7^th thoracic vertebra;

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Abrasion 2 cm. x 1 cm. in the centre of which there was a punctured wound of 1 cm. x 0.5 cm. with regular margins and acute angles at both

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extremities vertically placed on the right ankle 11 cm. above the lateral malleolus and 1.5 cm. in front. The wound has involved the muscles of the lateral aspect of right leg and has gone up to 3 cm. deep;

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Cut wound 2 cm. x 1 cm. x muscle deep placed on the outer aspect of right ankle 9 cm. above the lateral malleolus and 1 cm. back to the injury no.3;

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Cut wound 3 cm. x 1 cm. with regular margins which has involved upto bone deep where the underlying fibula bone along with the upper portion of lateral malleolus of right ankle was exposed and has been fractured into three pieces;

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Punctured wound 1 cm. x 0.5 cm. x 3 cm. muscle deep with muscle involvement on the medial aspect of left leg 17 cm. below the medial condyle of the left tibia. Dry blood-stains were sticking to it;

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Parallel bruise 2 in nos. each measuring 12 cm. x 1 cm. with intervening normal skin of 1 cm. adjacent to each other reddish violet in colour placed horizontally on the right side back just below and in front of right scapula;

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Parallel bruise 10 cm. x 1 cm. with 1 cm. intervening normal skin on the outer aspect of right side chest wall corresponding to 7^th rib.

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Internal Injuries :

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Corresponding to external injury no.1, there was a cut fracture of 9 cm. long from its right extremity a fissure fracture extends outwards and downwards on right half of the frontal bone for 5 cm. and on its left extremity, the left fronto-pareital suture was separated. The left side frontal scalp on its under surface looks contused. The under surface of the scalp corresponding to the external cut wound the margins were contused. The meninges underlying was cut for 9 cm.; 2. Corresponding to external injury no.2, the under-surface scalp wound margins were contused;

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Corresponding to external injury no.3, there was a cut fracture of 9 cm. along with shelving of posterior bony cut margins in relation to anterior cut margin on the bone. The meninges underlying the cut fracture was intact. The scalp wound margins on its under surface was contused;

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The right temporal muscles in its anterior half was contused and infiltrated with extravasated clotted blood corresponds to external scalp wound no.1 on its extension;

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Corresponding to external injury no.7, there was a cut injury to the muscles on the back at

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the wound site which travels downwards and forwards to involve the 7^th thoracic spine of the vertebra causing fracture of the spinous process and lateral process of 7^th thoracic vertebra with extravasation and infiltration of blood around the fracture site and the muscles surrounding it. The covering on the spinal cord and the spinal cord itself has been contused at the corresponding site;

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Corresponding to external injury no.8, there was cut wound on the muscles at the corresponding site with extravasation and infiltration of blood;

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Corresponding to external injury no.10, the underlying fibula bone at its lower end with the upper portion of malleolus has been fractured and was associated with extravasation and infiltration of blood around the fracture site;

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Corresponding to external injury no.11, the punctured would has gone upto 3 cm. deep in the muscles where there was extravasation and infiltration of blood;

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There was fracture of tibia bone of left leg its middle with extravasated clotted blood surrounding the fracture site;

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There was a thin layer of subdural haemorrhage on the left side hemisphere;

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The brain on its right frontal lobe was cut for 5 cm. downwards involving the sagittal border of left frontal lobe. The brain looks pale. The dimension of brain cut was 9 cm. x 1 cm. x 4 cm.

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P.W.27 has opined that the external and internal

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injuries were ante mortem in nature and all the injuries were fatal in ordinary course of nature to cause death. He further opined that the external injury nos.1, 2 & 3 and their corresponding internal injuries were fatal and sufficient to cause death. He further opined that death was due to injury to vital organ like brain i.e. craniocerebral injuries and the time since death was about 24 to 30 hours since the time of post-mortem examination. He further opined that external injury nos.1, 2, 3, 7, 9 and 10 might have been caused by any heavy or moderately heavy cutting weapons. The pressure abrasion i.e. external injury no.4 might have been caused by the edge of the some cutting weapon. The external injury nos.5 and 6 might have been caused by falling on any hard and rough and blunt surface or object. The external injury nos.8 and 11 might have been caused by any pointed weapon having cutting edge on either side. The parallel bruises i.e. injury nos.12 and 13 could have

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been caused by lathi blow. He proved the post mortem examination report vide Ext.21.

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Nothing has been brought out in the crossexamination of P.W.27 by the learned defence counsel to disbelieve his testimony.

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Similarly, P.W.26, the doctor who conducted the post

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mortem examination of the deceased Igni Naik on 07.03.1993 in Addl. P.H.C. has noticed the following injuries:

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One sharp cutting injury of size 8 cm. x 0.5 cm.x 1 cm. situated over left side back of the chest;

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One sharp cutting injury of size 8 cm. x 0.5cm. x 1 cm. situated over left side back of the chest;

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One sharp cutting injury 5 cm. x 0.5 cm. x 2 cm. situated over right side chest wall back;

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Another sharp cutting injury 5 cm. x 0.5 cm. x 2 cm. situated over right side back of the chest wall;

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Sharp cutting injury 2 cm. x 0.5 cm. x 1 cm. situated over left side chest wall;

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Sharp cutting injury 3 cm. x 2 cm. x 3 cm. situated over left elbow with dislocation of left elbow joint.

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He has opined that the injuries nos.1 to 6 were ante mortem in nature and caused by sharp cutting weapons. The cause of death was due to haemorrhage on account of multiple injuries and the nature of death was homicidal. Time since death was more than 18 hours. He has proved the post mortem report marked as Ext.20.

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Nothing has been elicited in the cross-examination of P.W.26by the learned defence counsel to disbelieve his testimony.

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Therefore, apart from the inquest report of both the deceased and other evidence available on record, the medical evidence adduced by P.W.26 and P.W.27 coupled with the findings in the post mortem examination reports (Exts.20 and 21), we are of the view that the learned trial Court is quite justified in holding both the deceased, namely, Panchu Naik and Igni Naik died homicidal death, which is also not challenged by the learned counsel for the appellants.

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Assessment of evidence of eye witnesses P.W.14 and

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P.W.18 :

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The two star witnesses examined on behalf of the prosecution are P.W.14 Habuli Naik and P.W.18 Debaki Naikani and they are the eye witnesses to the occurrence.

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P.W.14 has stated that the accused persons came in a body by holding different weapons like axe, kati, tangia, sword and they arrived near deceased Panchu Naik, who was working with him. A-3 Basant Naik dealt a pharsa blow on the head, A-2 Babu @ Babula Naik dealt a sword blow on the back and A-5 Bidu @ Bidyadhar Naik (dead) dealt axe blow to the leg of the deceased Panchu Naik, for which he fell down on the ground due to assault.

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So far as the deceased Igni Naik is concerned, P.W.14 has stated that A-1 Bhagya @ Bhagirathi Bisoi dealt a steel sword blow on the left hand, A-4 Aruna Naik (dead) dealt kati blow on the back, A-11 Bijuli Naik (dead) dealt kati blow on the back, A-9 Pramod Naik dealt a small kati blow on the leg of the deceased Igni Naik respectively. He has further stated that he was present at one side of the place of the assault and seen the entire occurrence. He further stated that after the occurrence, the accused persons fled away from the spot and the injured persons were found lying on the ground in a pool of blood and he along with others carried the injured persons to MundaMorei Bus stand and while they were so carrying to Aska Hospital for treatment, deceased Panchu Naik succumbed to his injuries at MundaMorei Bus stand and they left the dead body of

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the deceased Panchu Naik at the Bus stand and carried the injured Igni Naik to Aska Hospital for treatment and admitted him in the hospital and then he came to Aska police station and lodged the verbal report before the police.

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In the cross-examination, it has been elicited about the civil dispute between the parties and it has also been elicited that this witness is a party to 107 Cr.P.C. proceeding which was there between the parties. Though some confrontations have been made by the learned defence counsel with respect to the previous statement made by this witness before the investigating officer, but we find there are no such material contradictions in the evidence and therefore, the evidence of P.W.14 has not been shattered in the cross-examination.

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P.W.18 Debaki Naikani was the widow of the deceased Igni Naik and mother of the deceased Panchu Naik. She has stated that the accused persons came by holding weapons to the spot and she was present on the ridge of the tank at that time. She further stated that A-1 Bhagya @ Bhagirathi Bisoi dealt a sword blow on the head, A-2 Babu @ Babula Naik dealt a pharsa blow on the neck, A-3 Basant Naik @ Bapana dealt sword blow to the left side neck and A-5 Bidu @ Bidyadhar Naik (dead) dealt kati blow on the head of the

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deceased Panchu Naik respectively, who fell down on the ridge sustaining injuries throughout his body.

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So far as her husband deceased Igni Naik is concerned, she has stated that the accused Dura dealt kati blow on the left hand, A-9 Pramod Naik dealt a razor blow on the back, A-4 Aruna Naik dealt chella blow to the waist, A-7 Lambodar Naik dealt pharsa blow to the back and A-5 Bidu @ Bidyadhar Naik dealt chella blow to the abdomen of her husband respectively, who fell down on the ground with severe bleeding injuries. She has further stated that after the assault, the accused persons fled away from the spot and her husband was shifted to Aska hospital for treatment and her son Panchu Naik died at MundaMorei bus stand and her husband died on the next day during course of his treatment.

¶177

In the cross-examination of P.W.18, the defence has elicited that the accused persons were twenty one in numbers and after assaulting her son Panchu Naik, they came to her husband Igni Naik and all the accused persons dealt four to five strokes with their weapons. She further stated that appellants were holding eight to ten axes and also similar number of katis. Some confrontations were made with reference to her previous statement recorded by the I.O. (P.W.25), but we find that there

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are no such material contradictions in the evidence of P.W.18 and therefore, the evidence of P.W.18 relating to the participation of some of the appellants in the assault of the deceased has not been shaken in the cross-examination.

¶181

Learned Amicus Curiae argued that so far as the assault on deceased Panchu Naik is concerned, in view of the evidence of two eye witnesses, though the implication of A-2 Babu @ Babula Naik and A-3 Basant Naik @ Bapana is consistent, but so far as A-1 Bhagya @ Bhagirathi Bisoi is concerned, even though P.W.18 has implicated him in the assault and stated that he started the assault by dealing sword blow on the head of the deceased Panchu Naik, but P.W.14 is totally silent relating to any assault made by the A-1 Bhagya @ Bhagirathi Bisoi to the said deceased. It is the further submission of the learned Amicus Curiae that since the A-1 Bhagya @ Bhagirathi Bisoi has been implicated by only one of eye witnesses i.e. P.W.18 in the assault of the deceased Panchu Naik, for which he was found guilty under section 302/149 of the I.P.C., he should be given benefit of doubt.

¶182

Mr. Sarat Chandra Pradhan, learned Addl. Standing Counsel, on the other hand, submitted that both the witnesses were at different places and watching the occurrence and there

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were number of accused persons being armed with different weapons and in such a scenario, the possibility of P.W.14 missing of assault by A-1 Bhagya @ Bhagirathi Bisoi is probable and therefore, merely because P.W.14 has not implicated A-1 Bhagya @ Bhagirathi Bisoi in the assault of the deceased Panchu Naik, the evidence of P.W.18 in that respect cannot be disbelieved, more particularly, when the doctor (P.W.27) has noticed corresponding injury on the head, which is possible by sharp cutting weapon.

¶186

After carefully examining the evidence of two eye witnesses i.e P.W.14 and P.W.18, we are of the humble view that possibility of the assault by A-1 Bhagya @ Bhagirathi Bisoi on the deceased Panchu Naik going unnoticed by P.W.14 is probable since there were number of accused persons present at the spot and they were holding different weapons. When participation of A-1 Bhagya @ Bhagirathi Bisoi as deposed to by P.W.18 has not been shaken in the cross-examination and it is getting corroboration from the medical evidence, the same cannot be disbelieved merely because the other eye witness i.e. P.W.14 has omitted to name him in the assault of the deceased Panchu Naik. Therefore, we find from the materials available on record that the three appellants i.e. A-1 Bhagya @ Bhagirathi Bisoi, A-2

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Babu @ Babula Naik and A-3 Basant Naik @ Bapana along with A-5 Bidu @ Bidyadhar Naik (dead) are liable for the commission of murder of deceased Panchu Naik and the oral evidence coupled with the medical evidence is clinching in nature in that respect. Though the learned trial Court has also found the involvement of A-4 Aruna Naik (dead) in such murder, but we do not find any material in that respect. Therefore, the number of active participants in such murder has gone down to four. Since it is apparent that A-1 Bhagya @ Bhagirathi Bisoi, A-2 Babu @ Babula Naik and A-3 Basant Naik @ Bapana along with A-5 Bidu @ Bidyadhar Naik (dead) being armed with sharp cutting weapons came together to the spot and assaulted to the deceased Panchu Naik on vital parts of the body and thereby committed his murder and left the spot together, we are of the view that they shared common intention to commit such murder.

¶190

In case of Chittarmal -Vrs.- State of Rajasthan reported in (2003) 24 Orissa Criminal Reports (SC) 664 , it is held as follows:-

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"14. It is well settled by a catena of decisions that Section 34 as well as Section 149 deal with liability for constructive criminality i.e. vicarious liability of a person for acts of others. Both the sections deal with combinations of persons who

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become punishable as sharers in an offence. Thus they have a certain resemblance and may to some extent overlap. But a clear distinction is made out between common intention and common object in that common intention denotes action in concert and necessarily postulates the existence of a pre-arranged plan implying a prior meeting of the minds, while common object does not necessarily require proof of prior meeting of minds or pre-concert. Though there is substantial difference between the two sections, they also to some extent overlap and it is a question to be determined on the facts of each case whether the charge under Section 149 overlaps the ground covered by Section 34. Thus, if several persons numbering five or more, do an act and intend to do it, both Sections 34 and Section 149 may apply. If the common object does not necessarily involve a common intention, then the substitution of Section 34 for Section 149 might result in prejudice to the accused and ought not, therefore, to be permitted. But if it involves a common intention, then the substitution of Section 34 for Section 149 must be held to be a formal matter. Whether such recourse can be had or not must depend on the facts of each case. The non-applicability of Section 149 is, therefore, no bar in convicting the appellants under Section 302 read with Section 34 IPC, if

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the evidence discloses commission of an offence in furtherance of the common intention of them all."

¶198

In the case of Dhanna -Vrs.- State of Madhya Pradesh reported in (1996) 10 Supreme Court Cases 79 , it is held as follows:-

¶199

“7. The High Court found that there was no unlawful assembly as the strength of the assembly was insufficient to constitute it into "unlawful assembly". But if the court enters upon a finding that any of the remaining persons who participated in the crime had shared common intention with the main perpetrators of the crime, the court is not helpless in seeking the aid of Section 34 (I.P.C.) to enter a conviction against such persons arraigned as accused. This is despite the difference between the scope of Section 34 and Section 149. Yet they have some resemblance between each other and are to some extent overlapping ( Barendra Kumar Ghosh -Vs.- Emperor : AIR 1925 PC 1 ).

¶200

Legal position on this aspect remained uncertain for a time after this Court rendered a decision in Nanak Chand -Vs.- The State of Punjab: (1955) 1 SCR 1201 . But the doubt was cleared by a Constitution bench of this Court in William Slaney -Vs.- State of M.P. :

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AIR 1956 SC 116 , where this Court observed at para 86, thus;

¶204

”Sections 34, 114 and 149 of the Indian Penal Code provide for criminal liability viewed from different angles as regards actual participants, accessories and men actuated by a common object or a common intention; and the charge is a rolled-up one involving the direct liability and the constructive liability without specifying who are directly liable and who are sought to be made constructively liable.In such a situation, the absence of a charge under one or other of the various heads of criminal liability for the offence cannot be said to be fatal by itself, and before a conviction for the substantive offence, without a charge, can be set aside, prejudice will have to be made out. In most of the cases of this kind, evidence is normally given from the outset as to who was primarily responsible for the act which brought about the offence and such evidence is of course relevant.”

¶205

It is, therefore, open to the Court to take recourse to Section 34 of I.P.C. even if the said section was not specifically mentioned in the charge and instead Section 149 I.P.C. has been included. Of course, a finding that the assailant

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concerned had a common intention with the other accused is necessary for resorting to such a course. This view was followed by this Court in later decisions also. Amar Singh -Vs.- State of Haryana :AIR 1973 SC 2221 , Bhoor Singh and Anr. -Vs.- State of Punjab : AIR 1974 SC 1256 .”

¶209

Similar view was also taken in the case of Jai Singh

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@ Bandu and Another -Vrs.- State of Maharashtra reported in 1996 Supreme Court Cases (Cri) 672 , wherein it is held that omission to frame a charge or departure from the charge cannot invalidate conviction unless prejudice has been caused.

¶211

Thus, the conviction of the A-1 Bhagya @ Bhagirathi Bisoi, A-2 Babu @ Babula Naik and A-3 Basant Naik @ Bapana is altered from section 302/149 of the I.P.C. to section 302/34 of the I.P.C.

¶212

Coming to the assault on the deceased Igni Naik, learned Amicus Curiae argued that P.W.14 has implicated appellants i.e. A-1 Bhagya @ Bhagirathi Bisoi and A-9 Promod Naik apart from the appellants A-4 Aruna Naik and A-11 Bijuli Naik (who are now dead) in the assault of the deceased and it is stated that A-1 Bhagya @ Bhagirathi Bisoi used steel sword and assaulted on the left hand of the deceased and A-9 Pramod Naik

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assaulted by a kati on the leg of the deceased, whereas P.W.18 has not whispered that A-1 Bhagya @ Bhagirathi Bisoi dealt any blow to the deceased Igni Naik and though she has implicated A- 7 Lambodar Naik in the assault of Igni Naik, but the same has not been deposed to by P.W.14. She also implicated A-4 Aruna Naik and A-5 Bidu @ Bidyadhar Naik in the assault, who are now dead. He further argued the learned trial Court has not placed any reliance on the oral evidence adduced by these two eye witnesses relating to the assault on the deceased Igni Naik rather placed reliance on the dying declaration of the deceased Igni Naik recorded by P.W.1 vide Ext.1/1 in which only the implication of A-1 Bhagya @ Bhagirathi Bisoi, A-3 Basant Naik @ Bapuni and A-5 Bidu @ Bidyadhar Naik (dead) are there. He further argued that there is no clinching evidence against A-6, A- 7, A-9, A-10 and A-12 to hold them guilty under section 304 Part-II/149 of I.P.C. and therefore, they should be acquitted of such offence.

¶216

Mr. Pradhan, learned counsel for the State argued that the learned trial Court has rightly not placed reliance on the evidence of two eye witnesses so far as the assault on the deceased Igni Naik is concerned, but accepted the dying declaration of the deceased Igni Naik recorded by P.W.1, but

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since it has been proved that A-6, A-7, A-9, A-10 and A-12 were the members of unlawful assembly and came to the spot being armed with deadly weapons in the company of other accused persons who directly participated in the assault of the deceased persons, therefore, apart from the offence under section 148 of I.P.C., they were held guilty under section 304 Part-II/149 of I.P.C. as they had knowledge being the members of the unlawful assembly that an offence of culpable homicide was likely to be committed by using deadly weapons and therefore, the conviction of A-6 Dillip Naik, A-7 Lambodar Naik, A-9 Promod Naik, A-10 Pruthibi Naik and A-12 Bishnu Bishoi @ Naik is justified.

¶220

Whether the dying declaration of the deceased Igni Naik

¶221

is believable ?

¶222

On perusal of the dying declaration recorded by P.W.1, the Medical Officer, we find that he not only treated the the deceased Igni Naik but also referred the case to M.K.C.G. Medical College & Hospital and on the request of the police, recorded the dying declaration in which the deceased implicated only three persons in his assault i.e. A-1 Bhagya @ Bhagirathi Bisoi, A-3 Basant Naik @ Bapana and A-5 Bidu @ Bidyadhar Naik. The doctor has enquired about the mental condition of the

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deceased and found it to be normal. He further stated that at the time of such recording, only hospital staff was present apart from two to three police personnel. He stated to have handed over the dying declaration sheet to police on requisition. P.W.1 was the treating doctor and there is no evidence that the deceased was tutored by anyone to make such declaration and that in view of the injuries sustained by him, he could not have made any statement or dying declaration. Nothing has been elicited in the cross-examination to dislodge the evidence of P.W.1 relating to dying declaration. Therefore, it is clear that there is nothing in the dying declaration against A-6 Dilip Naik, A-7 Lambodar Naik, A-9 Promod Naik, A-10 Pruthibi Naik and A- 12 Bishnu Bisoi @ Naik. Though the name of A-9 Promod Naik finds place in the assault of the deceased Igni Naik in the evidence of P.W.14 and the names of A-7 Lambodar Naik and A- 9 Pramod Naik find place in the assault of the deceased Igni Naik in the evidence of P.W.18, but since the names of these appellants do not find place in the dying declaration of the deceased Igni Naik, no importance can be attached to the evidence of P.W.14 and P.W.18 relating to the implication of A-7 Lambodar Naik and A-9 Pramod Naik in the assault of the deceased Igni Naik.

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Therefore, except the mere presence of A-6 Dillip Naik, A-7 Lambodar Naik, A-9 Pramod Naik, A-10 Pruthibi Naik and A-12 Bishnu Bishoi @ Naik in the unlawful assembly being armed with weapons, there is no evidence of any specific overt act against them either in the assault of deceased Panchu Naik or deceased Igni Naik. There is no evidence that they played any active role in the occurrence of assault. There is no evidence of any active mind on their part in furtherance of their common object. There is no material to come to a finding that they knew before hand that the offence actually committed was likely to be committed in prosecution of the common object. There is no sufficient evidence on record to show that they intended to or knew the likelihood of commission of such offending act.

¶229

Section 149 of I.P.C. has essentially two ingredients viz. (i) offence committed by any member of an unlawful assembly consisting five or more members and (ii) such offence must be committed in prosecution of the common object (under Section 141 I.P.C.) of the assembly or members of that assembly knew to be likely to be committed in prosecution of the common object. For common object, it is not necessary that there should be a prior concert in the sense of a meeting of the members of the unlawful assembly, the common object may

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form on spur of the moment; it is enough if it is adopted by all the members and is shared by all of them. In order that the case may fall under the first part, the offence committed must be connected immediately with the common object of the unlawful assembly of which the accused were members. (Ref: Bhanwar

¶233

Singh and Ors. -Vs.- State of M.P. : (2008) 16 Supreme Court Cases 657 ). Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under second part of Section 149 I.P.C. if it can be held that the offence was such as the members knew was likely to be committed. The expression 'know' does not mean a mere possibility, such as might or might not happen. For instance, it is a matter of common knowledge that if a body of persons go armed to take forcible possession of the land, it would be right to say that someone is likely to be killed and all the members of the unlawful assembly must be aware of that likelihood and would be guilty under the second part of Section 149 I.P.C. There may be cases which would come within the second part, but not within the first. The distinction between the two parts of Section 149 I.P.C. cannot be ignored or obliterated. (Ref: Mizaji and Anr.

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-Vs.- State of U.P. : AIR 1959 SC 572 ; Gangadhar Behera and Ors. -Vs.- State of Orissa : AIR 2002 SC 3633 ).

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However, once it is established that the unlawful assembly had common object, it is not necessary that all persons forming the unlawful assembly must be shown to have committed some overt act. For the purpose of incurring the vicarious liability under the provision, the liability of other members of the unlawful assembly for the offence committed during the continuance of the occurrence, rests upon the fact whether the other members knew before hand that the offence actually committed was likely to be committed in prosecution of the common object. (Ref: Daya Kishan -Vs.- State of Haryana : (2010) 5 Supreme Court Cases 81 ; Sikandar Singh -Vs.State of Bihar : (2010) 7 Supreme Court Cases 477 ; Debashis Daw -Vs.- State of W.B. : (2010) 9 Supreme Court Cases 111 ). The crucial question for determination in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects specified by Section 141 of I.P.C. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons which were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly. (Ref: Masalti -Vs.- State of

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Uttar Pradesh : AIR 1965 SC 202 ). In K.M. Ravi and Ors. -Vs.- State of Karnataka reported in (2009) 16 Supreme

¶241

Court Cases 337 , the Hon‟ble Supreme Court observed that mere presence or association with other members alone does not per se be sufficient to hold every one of them criminally liable for the offences committed by the others unless there is sufficient evidence on record to show that each intended to or knew the likelihood of commission of such an offending act. Similarly in State of U.P. -Vs.- Krishanpal and Ors. reported in (2008)

¶242

16 Supreme Court Cases 73 , the Hon‟ble Supreme Court held that once a membership of an unlawful assembly is established, it is not incumbent on the prosecution to establish whether any specific overt act has been assigned to any accused. Mere membership of the unlawful assembly is sufficient and every member of an unlawful assembly is vicariously liable for the acts done by others either in prosecution of common object or members of assembly knew were likely to be committed. In Amerika Rai and Ors. -Vs.- State of Biharreported in

¶243

(2011) 4 Supreme Court Cases 677 , the Hon‟ble Supreme Court opined that for a member of unlawful assembly having common object what is liable to be seen is as to whether there was any active participation and the presence of all the accused

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persons was with an active mind in furtherance of their common object. The law of vicarious liability under Section 149 I.P.C. is crystal clear that even the mere presence in the unlawful assembly, but with an active mind, to achieve the common object makes such a person vicariously liable for the acts of the unlawful assembly. In the case of Charan Singh -Vs.- State of U.P. reported in (2004) 4 Supreme Court Cases 205 , it is held that the crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141 of I.P.C. The word 'object' means the purpose or design and in order to make it 'common', it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression 'in prosecution of common object' as appearing in Section 149 I.P.C. has to be strictly construed as

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equivalent to 'in order to attain the common object'. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. In the case of Bhanwar Singh -Vs.- State of Madhya Pradesh reported in (2008) 16 Supreme Court Cases 657 , the Hon‟ble Supreme Court held that the common object of the unlawful assembly in question depends firstly on whether such object can be classified as one of those described in Section 141 I.P.C. Secondly, such common object need not be the product of prior concert, but as per established law, may form on the spur of the moment. Finally, the nature of this common object is a question of fact to be determined by considering nature of arms, nature of the assembly, behaviour of the members, etc. Where general allegations are made against a large number of persons, the Court would categorically scrutinise the evidence and hesitate to convict the large number of persons if the evidence available on record is vague. It is obligatory on the part of the Court to examine that if the offence committed is not in direct prosecution of the common object, it yet may fall under second part of Section 149 I.P.C., if the offence was such as the members knew was likely to be committed. Further

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inference has to be drawn as what was the number of persons; how many of them were merely passive witnesses; what were their arms and weapons. Number and nature of injuries is also relevant to be considered. "Common object" may also be developed at the time of incident. (Ref: Ramachandran and

¶253

Ors. -Vs.- State of Kerala : (2011) 9 Supreme Court Cases 257 ).

¶254

In view of the settled position of law as discussed above and the materials available on record, the conviction of A- 6 Dillip Naik, A-7 Lambodar Naik, A-9 Promod Naik, A-10 Pruthibi Naik and A-12 Bishnu Bishoi @ Naik under section 304 PartII/149 of I.P.C. is not sustainable in the eyes of law and hence set aside.

¶255

Conviction of the appellants under section 148 I.P.C.

¶256

The evidence of the two eye witnesses i.e. P.W.14 and P.W.18 indicate that appellants along with others came in a body by holding different weapons like axe, kati, tangia and sword. It is of course correct that except the accused persons who participated in the assault of the two deceased, it has not been stated specifically about the nature of weapons held by the other accused persons. However, no questions have been put by the defence in that respect in the cross-examination nor it has

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been brought out that any of the accused persons were not armed with any deadly weapons.

¶260

When there is rioting simplicitor, offence is punishable under section 147 of I.P.C. When such rioting is committed by a particular accused or persons having deadly weapons or with anything which, used as a weapon of offence is likely to cause death, offence is punishable under section 148 of I.P.C. „Rioting‟ has been defined under section 146 of I.P.C. which lays down that whenever force or violence is used by an unlawful assembly, or any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of offence of rioting.

¶261

The offence under Section 148 of I.P.C. is an aggravated form of the offence under Section 147 of I.P.C. Section 147 of I.P.C. deals with the punishment for the offence of rioting, whereas Section 148 of I.P.C. deals with the punishment for the offence of rioting being armed with deadly weapon. If one member of an unlawful assembly is armed with a deadly weapon, the other members cannot on that account be charged under Section 148 of I.P.C. (Ref: Nanda Kishore -Vs.State : A.I.R. 1961 Orissa 29 and In re Mathuswami Goundan and Ors. : A.I.R. 1942 Mad. 420 ). A person cannot

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be found guilty under Section 148 of I.P.C. unless he actually holds a dangerous weapon. Hence unless that condition is satisfied, he cannot be held constructively guilty under Section 148 of I.P.C. by reason of Section 149 of I.P.C. It is not necessary for the prosecution to prove that the accused persons who were armed with deadly weapons used such weapons to convict them under section 148 of I.P.C. When force or violence is used by an unlawful assembly or by any member thereof in prosecution of the common object of such assembly, the offence of rioting as described under section 146 of I.P.C. is attracted and each member of such assembly is to be held guilty for such offence and out of such members of unlawful assembly, the persons who were armed with deadly weapon or anything which used as a weapon of offence, is likely to cause death can be held liable for the offence under section 148 of I.P.C. Section 349 of I.P.C. defines „force‟. As soon as force or violence is used, the offence of rioting is complete.

¶265

In view of the evidence of the eye witnesses, it is apparent that A-1 Bhagya @ Bhagirathi Bisoi, A-2 Babu @ Babula Naik, A-3 Basanta Naik @ Bapanna, A-6 Dillip Naik, A-7 Lambodar Naik, A-9 Pramod Naik, A-10 Pruthibi Naik and A-12 Bishnu Bisoi @ Naik were armed with deadly weapons being the

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members of the unlawful assembly and even though out of them only A-1 Bhagya @ Bhagirathi Bisoi, A-2 Babu @ Babula Naik and A-3 Basanta Naik @ Bapanna have used the deadly weapons in the assault of the deceased but all of them can be held guilty under section 148 of I.P.C. Therefore, the conviction of these appellants under section 148 of the I.P.C. stands confirmed.

¶269

The learned trial Court while convicting A-1 Bhagya @ Bhagirathi Bisoi, A-2 Babu @ Babula Naik and A-3 Basanta Naik @ Bapanna under section 148 of I.P.C. has not imposed any separate sentence, however, while holding A-6 Dillip Naik, A-7 Lambodar Naik, A-9 Promod Naik, A-10 Pruthibi Naik and A-12 Bishnu Bisoi @ Naik guilty under section 148 of I.P.C., sentenced

¶270

each of them to undergo R.I. for one year. These appellants were on bail during trial and after conviction, they were also released on bail in this appeal. In view of the fact that more than 32 years have passed since the date of occurrence, keeping in view their age at present, we reduce the sentence imposed under section 148 of the I.P.C. to period already undergone.

¶271

Conclusion :

¶272

In view of the foregoing discussions, A-1 Bhagya @ Bhagirathi Bisoi, A-2 Babu @ Babula Naik andA-3 BasantNaik@ Bapana are found guilty under section 302/34 of I.P.C.The

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sentence passed by the learned trial Court for the offence under section 302/149 of the I.P.C. is awarded for the offence under section 302/34 of I.P.C. The conviction of these three appellants under section 148 of the I.P.C. stands confirmed, but as held by the learned trial Court, no separate sentence is imposed for such offence.

¶276

The conviction of A-6 Dillip Naik, A-7 Lambodar Naik, A-9 Pramod Naik, A-10 Pruthibi Naik and A-12 Bishnu Bisoi @ Naik under section 304 Part-II/149 of the I.P.C. is set aside. However, their conviction under section 148 of the I.P.C. stands confirmed, but the sentence passed thereunder by the learned trial Court is reduced to period already undergone.

¶277

A-1 Bhagya @ Bhagirathi Bisoi, A-2 Babu @ Babula Naik, A-3 Basant Naik @ Bapana who are on bail as per the order of this Court dated 10.05.2004 in Misc. Case No.218 of 2003 are directed to surrender within a period of four weeks from today to undergo the sentence, failing which, the learned trial Court shall take coercive steps for their arrest.

¶278

In the result, Criminal Appeal is allowed in part.

¶279

Before parting with the case, we would like to put on

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record our appreciation to Mr. Saroj Kumar Routray, the learned Amicus Curiae for rendering his valuable help and assistance

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towards arriving at the decision above mentioned. The learned Amicus Curiae shall be entitled to his professional fees which is fixed at Rs.10,000/- (rupees ten thousand only). This Court also appreciates the valuable help and assistance provided by Mr. Sarat Chandra Pradhan, learned Additional Standing Counsel.

¶284

The trial Court records with a copy of this judgment be communicated to the concerned Court forthwith for information and necessary action.

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S.K. Sahoo, J.

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Chittaranjan Dash, J.

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Orissa High Court, Cuttack The 1^st July, 2025/Sipun/Rajesh

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Bhagya v. State

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Bhagya v. State

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