Orissa High Court
Sikhar Behara And Ors. vs The State on 5 January, 1982
Equivalent citations: 1982CRILJ1167
JUDGMENT P.K. Mohanti, J.
1. The appellants, sixteen in number, were jointly tried along with twenty-five others and were variously charged for offences Under Section 302, 302/34. 148, 302/149, 323, 324, 323/149 and 324/149, IPC After trial, the appellants were convicted Under Section 148, 302/149, 323/149 and 324/149, IPC and sentenced to undergo imprisonment for life for the offence Under Section 302/149, IPC No separate sentence was awarded for the other offences,
2. The prosecution case runs thus: The accused persons belong to villages Khajuria and Dimirisena and members of the prosecution party belong to village Dimirisena. There was a long standing dispute between the parties regarding possession of the lands belonging to the deity Balunkeswar installed at village Dimirisena. The deity owns 150 acres of lands out of which 100 acres were in possession of the tenants and the remaining 50 acres were being let out for bhag cultivation annually. The prosecution party claims that 40 families belonging to their party were in possession of those 50 acres of lands. It was alleged that one Chandra Sekhar Patnaik was the trustee of the deity and after him his son Indra Kumar Patnaik managed the properties as a trustee for some time. Indra Kumar Patnaik entrusted the management of the affairs of the deity and its properties to the villagers of Dimirisena according to terms of a compromise in a proceeding under Sect 145, Criminal P. C. and since then the members of the prosecution party have been in possession of the lands. The present dispute relates to the lands of the deity which are locally known as PANCHAMANlA lands with an area of 2.04 acres appertaining to plot Nos. 2273. 2275 and 2276. The occurrence arose on account of cutting of paddy from plot No. 2273. Just before the occurrence a proceeding Under Section 144, Cr.P.C. had been started and the members of both the parties were restrained from going upon the lands. P.W. 5, the A. S. I. of Police of Jodapadar out-Post served the order Under Section 144, Cr.P.C. on appellant No. 11 Bhramar Samal and appellant No. 13 Jugal Samal on 27-11-1974. He also served a notice Under Section 107, Cr P. C. on some of the accused persons to show cause as to why they would not be called upon to execute bonds for keeping peace. On 28-11-74, P.W. 5 went to village Dimirisena for serving the order Under Section 144, Cr P. C. and the notice Under Section 107. Cr.P.C. on the other accused persons and there an order Under Section 144, Cr P. C. restraining the members of the prosecution party from going upon the lands was made over to him by appellant No. 11 Bhramar Samal. When P.W. 5 read over and explained the contents of the order to the members of the prosecution party and wanted to serve the notice on them, they refused to accept the same. The members of the accused party also refused to accept the order under Section 144, Cr.P.C. and the notice Under Section 107, Cr.P.C. After refusing to receive the notice, a group of about 20 to 30 members of the prosecution party went to cut paddy from the PANCHAMANlA lands. Subsequently a group of about 15 persons of the prosecution party went towards the said lands for carrying the paddy sheaves. While the second group had proceeded up to the Kalapatiri burial ground they found that a group of 25 persons of the accused party going there with lathis, bhalis, tentas and other deadly weapons. Mahant Gobinda Das was leading the accused party and he was armed with a gun. At the same time another group of 50 persons of the accused party came there being armed with deadly weapons. Seeing the first group led by Mahant Gobinda Das the persons who were going to carry the paddy crops shouted for help and some of the persons who were cutting the paddy crops rushed towards Kalapatiri burial ground. The members of the accused party surrounded the members of the prosecution party. Mahant Gobinda Das fired a shot from the gun which hit Kulamani Behera, a member of the prosecution party and he fell down on the ground. Then Gobinda Das snatched away a tenta from the hand of accused Chhaila Samal (since acquitted) and stabbed Kulamani with it. Thereafter the other accused persons assaulted Kulamani with deadly weapons as a result of which he died at the spot. When Kunja Samal, a member of the prosecution party, came to the rescue of Kulamani and entreated the accused persons not to commit any further assault, appellant No. 16 prahallad Bhoi stabbed him (Kunja Samal) with a tenta as a result of which he fell down on the ground. Some of the other accused persons also assaulted Kunja Samal with deadly weapons as a result of which he lost his consciousness and subsequently succumbed to the injuries at the Headquarters Hospital, Puri. In course of this incident P.W. 2 Madhab Das, P.W. 3 Banchhanidhi Swain, P.W. 4 Balabhadra Palei, P.W. 6 Arjun Behera, P.W. 7 Doma Samal, P.W. 8 Nakul Behera and P.W. 9 Sahadeb Das also received injuries.
3. P.W. 5. the A. S. I. of Police who was present at the spot sent a report through a Gramarakhi to the Police Station and it was treated as F. I. R. - vide Ext. 3. All the injured persons were brought to Brahmagiri Hospital where the Medical Officer (P.W. 11) gave first aid treatment and sent all of them to the District Headquarters Hospital at Puri. He recorded the dying declaration of Kunj a Samal as per Ext. 4 and also recorded the statements of P.W. 3 Banchhanidhi Swain and P.W. 4 Balabhadra Palei as per Exts. 5 and 6 respectively. In the District Headquarters Hospital at Puri, the injuries on P, W. 2 Madhab Das, P.W. 3 Banchhanidhi Swain and P.W. 4 Balabhadra Palei were examined by the doctor P.W. 12 and the dying declaration of Kunja Samal was recorded by the doctor Banamali Rath (P.W. 13) as per Ext. 11. The injuries of P.W. 8 Nafcul Behera and P.W. 9 Sahadeb Das were also examined by the doctor P.W. 13. Post-mortem examination over the dead bodies of Kulamani Behera and Kunja Samal was held at the Headquarters Hospital In course of investigation, P.W. 5 searched the houses of some of the accused persons and seized thengas, tentas and bows and arrows. The investigating Officer also seized some paddy sheaves from Panchamania lands. After due investigation, charge-sheet was submitted against the accused persons. On the F. I. R. (Ext. 46) lodged by appellant No. 5 Daitari Behera, a counter case was started against sixty-three accused persons including those who have figured as P. Ws. 1, 3, 4, 6, 7, 8, 10, 17 and 19 in this case, in that case forty accused persons were convicted under Sees. 148, 324/149 and 323/149, IPC They have preferred Criminal Appeal No. 53 of 1977 before this Court and the judgment of that appeal is being delivered today,
4. The appellants pleaded not guilty to the charges and contended that they were in possession of the panchamanya lands and had raised paddy crops during the year of occurrence. On the date of occurrence, they got information that the members of the prosecution party were going to cut unripe paddy. So they went to protest against it. Seeing them, the members of the prosecution party came running to-Wards them carrying deadly weapons. When appellant No. 5 Daitari Behera said that they had raised the paddy and the prosecution party should not cut the same. Kunja Samal directed others to assault the accused party and Kulamani Behera shot an arrow which hit the left hand of Daitari. P.W. 4 Balabhadra Palei gave a lathi blow on the head of Daitari as a result of which he fell down. P.W. 18 Bhimasen Behera and P.W. 3 Banchhanidhi Swain also assaulted appellant No. 9 Diji Behera. On account of the assault by the prosecution party the accused persons fled away from the spot.
5. At the trial, prosecution examined 26 witnesses of whom P. Ws. 2, 3, 4 and 6 to 9 are the persons who received injuries in course of the incident and P. Ws. 1,10,17,18,19 and 23 are eyewitnesses to the occurrence, P.W. 5 is the A. S. I., Jodapadar who was present at the time of occurrence. The appellants examined two defence witnesses on the question of possession. On a consideration of the evidence adduced on either side, the trial court held that it was not possible to come to a definite finding as to which party was in possession of Panchamania lands that the prosecution miserably failed to prove as to who actually caused the death of Kulamani Behera and Kunja Samal and injuries to P. Ws. 2, 3, 4 and 6 to 9 and that the evidence of P. Ws. 1 to 4, 6 to 9, 17 to 20 and 23 is unreliable. Upon such findings, the trial court acquitted the accused persons who stood charged for the specific offences Under Sections 302, 323 and 324. IPC But relying on the evidence of P.W. 5 about presence of some of the appellants and the statements of the appellants Under Section 313, Cr.P.C. the trial court held that the appellants formed an unlawful assembly along with others with the common object of driving away the members of the prosecution party from the land in question by use of criminal force and that in prosecution of such common object they assaulted the members of the prosecution party and that the members of the unlawful assembly knew that murders were likely to be caused.
6. It is urged in this appeal that the trial court should have held that the appellants were in possession of the land in question, that the prosecution party were the aggressors and that the appellants were protected by the right of private defence of property and person,
7. We will first take up the question of possession of the land in question. The prosecution party claimed to have been in possession of the lands by virtue of a compromise in a proceeding Under Section 145, Cr.P.C. According to them, one Indra Kumar Patnaik, son of Chandra Sekhar Patnaik was the trustee of the deity Balunkeswar and there was a proceeding Under Section 145, Cr.P.C. between him and the villagers and the proceeding terminated in a compromise and in terms thereof they entered into the possession of the lands. No documentary evidence has been produced in support of such claim. No effort has been made to obtain a copy of the compromise petition or to call for the record of the proceeding Under Section 145. Cr.P.C. The prosecution also relied on a resolution dated 10-3-1974(Ext. 29) alleged to have been passed by the villagers entrusting cultivation of the lands to the villagers of Dimirisena exc9pt the accused persons. The resolution was proved through P.W. 25. The resolution does not show that the prosecution party were in actual physical possession of the lands. It wag not seized by the police during investigation of the case. The trial court doubted the genuineness of the resolution on account of some interpolations and over-writings. The details of the land have not been mentioned in the resolution. The trial court was. therefore, justified in discarding the same. The oral evidence on the question of possession is not believable. P. Ws. 2, 3, 7, 8, 16 and 17 stated that the lands were being jointly possessed by forty1 families of the prosecution party. According to P. Ws. 1 and 9 some portions of the lands were being cultivated separately. P.W. 6 stated that the lands were being cultivated separately. P.W. 6 stated that the land from which Paddy was being cut on the date of occurrence had fallen to the share of P.W. 1 Balunki Ranasingh alone. According to P.W. 3 forty families of Dimirisena including his own family were cultivating the lands jointly. He could not give the boundary of the land. He stated that Indra Kumar Patnaik, a trustee of the deity, had leased out the lands to him and others for cultivation and the transaction was evidenced by a document, but that document has not seen the light of the day. He further stated that the villagers appointed one Dhaneswar Samai to collect the bhag dues of the lands and the persons in cultivating possession were paying the bhag dues to the said Dhaneswar Samal. According to him, half of the produce of the lands was being given to the deity. Not a single scrap of paper has been produced in the case to show that half of the produce of the land was being delivered to the deity. The evidence of P.W. 7 Doma Samal was that the lands were being jointly cultivated by all the members of the prosecution party. He could not, however, give the extent of the lands. He could not say the chaka to which the lands appertain. He said that he did not know if any accounts with regard to the cultivation of the lands were maintained. According to him, P.W. 19 Pani Barik was the leader of their party and he could give the details about the yield and other particulars about the land. P.W. 19 stated that pursuant to a compromise in a proceeding Under Section 145, Cr.P.C. between Chandra Sekhar Patnaik and the prosecution party they remained in possession of the lands and cultivated the same during the year of occurrence. One Lokanath Misra having attempted to cut away the paddy from the land, the prosecution party started a proceeding Under Section 144, Cr.P.C. and obtained a prohibitory order against the said Lokanath Misra and the accused party. In cross-examination he stated that the prosecution party started cultivation of the lands in pursuance of a resolution passed by the villagers. P.W. 16 Baman Mallik stated in his examination-in-chief that the pancha-mania lands, were being possessed by the villagers of Dimirisena except the accused persons. But his statement in cross-examination was that all the villagers of Dimirisena cultivated the Pan-chamanya lands. According to him, whenever any cultivation operation was being performed on the land there was a large gathering and he did not know who actually came there to cultivate the lands. Thus, it will be seen that the witnesses have given inconsistent versions regarding possession of the lands.
8. The evidence on the question of possession on the side of the accused persons is equally unsatisfactory. The accused party relied on an agreement (Ext, C) dated 17-4-1974 said to have been executed by Lokanath Misra, the Executive Officer of the deity in their favour. The agreement was proved by D. W. 1 who is an Advocate's Clerk engaged on behalf of the accused persons. He is the retained Clerk of Lokanath Misra with whom the prosecution party had disputes regarding possession of the deity's lands. It transpires from the evidence that Lokanath Misra was not allowed to possess the deity's lands. On a careful consideration of the evidence, the trial court doubted the genuineness of Ext. C. D. W. 2. the only witness examined for the defence on the question of possession stated that for about 10 to 20 years there was dispute regarding the lands of the deity and many proceedings under Sees. 144 and 145, Cr.P.C. had been started for the same. He is the brother of appellant No, 16 Pra-hallad Bhoi. His evidence shows that the paddy was not fully ripe on the date of occurrence. The evidence of P.W. 16 is also to the same effect, A person who has actually grown paddy would not cut the same unless it is fully ripe.
9. The materials on the record would show that neither party was in peaceful possession of the land and that there was scramble for possession. It appears that there was dispute between the parlies regarding the possession of the land for which proceedings Under Section 144, Cr, P. C. were started prohibiting both parties from going upon the lands in question as per Exts. l and 2/2. The evidence of the A. S. I. (P.W. 5) shows that both parties refused to receive the prohibitory orders, He stated that on 27-11-74 he could serve the notices Under Section 144, Cr.P.C. on appellants 11 and 12 only and on 28-11-74 when he went to serve the notices on others, appellant No. 11 Bhramar Samal and appellant No. 12 Kumar Samal told in a threatening voice that if he served the notices he would not be allowed to return back from the village with life. The members of the prosecution party also gave out that they would not obey the orders of the Court, According to if, W, 5, both parties were ready with deadly weapons to fight with each other. Oh a review of the recorded evidence, we are inclined to hold that both parties were prepared for a fight. The members Of the prosecution party went to the place knowing that they would meet opposition and taking with them a large number of persons to defeat that opposition. The accused party appears to have done exactly the same thing. In the circumstances, we hold that the assemblies on both sides were unlawful and it is immaterial which party began the attack. This is, therefore, a case where there was no right of private defence.
10. The learned Counsel appearing for the appellants strenuously urged that the appellants could not be convicted Under Section 302/149, IPC as the common object of the unlawful assembly as mentioned in the charge Under Section 148 was hot to commit murder but to commit assault. This argument overlooks the charge Under Section 302/149, IPC wherein it was specifically mentioned that -in prosecution of the common object, some of the members of the unlawful assembly committed the murder of Kunja Samla and Kulamani Behera which offence they knew to be likely to be committed,
11. Section 149. IPC fixes vicarious liability of the members of an unlawful assembly for the acts done in prosecution of the common object of that assembly. But such liability is not limited to the acts done in prosecution of the common object of the assembly. It extends even to acts which the members of the assembly knew to be likely to be committed in prosecution of that common object. If an offence is committed by a member of an unlawful assembly and ' that offence is one which the members of the unlawful assembly know to be likely to be committed in prosecution of the common object, every member who had that knowledge will be guilty of the offence so committed. In the instant case, the members of the assembly came heavily armed with deadly weapons, some with Tentas. some with Bhalis and some with lathis in order to carry out their common object. If the members of the assembly knew that by using those weapons death would be caused they are guilty Under Section 302/149, IPC In our opinion, the second part of Section 149 is clearly establi shed in this case. If the appellants were members of the unlawful assembly, they cannot escape their liability for the murders.
12. The doctor P.W. 14 held postmortem examination over the dead body of Kulamani Behera on 29-11-1974 and found the following external injuries:
(1) a deep perforated wound in the right side of back 2" x 1" margin eliptical.
(2) right ear perforated;
(3) two injuries on the right chest;
(4) small wound below umbilicus;
(5) bruise on the right side of the neck (6) deep perforated wound in the heart area in the left chest;
(7) wounds (minor cut wounds) on the left leg and knee joint;
(8) deep wound on the forehead. On dissection, the doctor found the following injuries;
(1) fracture of the lower end of left tibia involving the muscles;
(2) deep perforated wound in the heart area and fraeture of fourth rib of the left side;
(3) vessels of the right lung severed. In the doctor's opinion all the injuries were ante-mortem in nature and death was due to massive haemorrhage of the right chest cavity and shock due to severe damage to the right lung. The external injury No. (1) which was a perforating wound on the right chest could be caused by stabbing with a tenta and that injury alone was sufficient in the ordinary course of nature to cause death, According to the doctor, this in jury damaged the lung and resulted in the death of the deceased. The other injuries were not sufficient either individually or collectively to cause death in the ordinary course of nature. Injury Nqs. (1) and (3) together constituted one injury. Injury Nos. (2, (6) and (8) could be caused by stabbing with a tenta. Injury No, (5) could be caused, .by a blunt and rough weapon like a lathi, Injury Nos. (4) and (7) could be caused by a sharp cutting weapon like farsa.
13. The doctor P, W. 12 who exert mined Kunja Samal on 28-11-1974 at Pur,i Head quarters Hospital found the following injuries on his person:r.
(I) One cut penetrating wound 1 1/2"x 1 1/4" x cavity deep obliquely over the left side abdomen directed medially down wards, Left lumber region with portusr Ion of ementum through wound grievous in nature. Caused by sharp pointed weapon.
(II) One lacerated wound 3 1/2" x 1/2" x scalp deep obliquely on the right side scalp 3" above the right eyebrow. Caused by hard and blunt surface. Opinion was kept reserved.
(III) One lacerated wound l" x 1" x scalp deep obliquely on the right tern poral region, 3" above right ear caused fey hard and blunt surface. Opinion was kept reserved.
(IV) One lacerated wound 2" x 1/2" x scalp deep obliquely on the right parietal eminence 2" behind the injury No, III. The injury was caused by some hard and blunt substance, opinion was kept reserved.
(V) One cut wound 3" x 1" on the posterior aspect of the left ear pinna over left mastoid process. The injury was simple in nature and might have been caused by sharp cutting weapon.
(VI) One cut wound 2" x 1 1/2" on the left ear pinna cutting the ear pinna. Simple in nature and might have been caused by sharp cutting weapon.
(VII) One bruise 5" x 2" on the left leg at the middle on anterior aspect. Simple and by some hard and blunt substance.
Kunja Samla died on 29-11-1974 at 6.45 p. m. in the Hospital. The same doctor held post-mortem examination over the dead body of Kunja Samal on 30-11-1974 and opined that the cause of the death was due to shock and heaemorrhage as a result of the injury to the adominal cavity. According to him, the injury on the abdomen could be caused by stabbing with a tenta and was sufficient in the ordinary course of nature to cause death.
14. The prosecution relied on the dying declarations of Kunja Samal as per Exts. 4 and 11. The trial court disbelieved the same on cogent grounds. The trial court's finding on this aspect of the case is not challenged before us.
15. The trial court did not place any reliance on the evidence of the eye-witnesses on account of the discrepancies in their evidence. We have carefully gone through their evidence. No doubt there are discrepancies, but, in our opinion, their evidence cannot be rejected altogether on all points. Unless there is any good ground to think that the discrepancies are due to a deliberate attempt to depart from truth, it is unfair to discard their entire, evidence merely on account of discrepancies. We can accept their evidence in so far as it is corroborated by other evidence or circumstances, p. Ws. 2, 3, 4 and 6 to 9 had marks of injuries on their persons the age of which when examined by the doctor synchronised with the time of occurrence. The presence of injuries on their bodies lends assurance to their testimony that they were present at the time of occurrence. When they had gone to the spot, they could not be expected to stand there as silent spectators. When the members of the unlawful assembly attacked Kulamani and Kunja, the witnesses might have been anxious to rescue them. In the circumstances of the case, it would be unreasonable to expect the witnesses to give an accurate account of the number of injuries and indicate accurately the particular parts of the body where the injuries were caused. In our opinion, the fact that the witnesses are unable to specify the site of the impact of the blow given by each individual accused, in the confusion Of an attack made by a large number of assailants is not a valid reason at all to reject their evidence.
16. P. Ws. 1 to 4, 6 to 10, 17 to 20 and 23 deposed about the occurrence of assault on Kulamani Behera. AH the above witnesses except P.W. 3 Ban-chhanidhi Swain implicated appellant No. 1 Sikhar Behera as an assailant of Kulamani, According t0 them, this appellant dealt a blow with the sharp side of a farsa on the head of Kulamani. In the doctor's opinion, Injury No. (8) which is a deep wound on the forehead could be caused by stabbing with a tenta. The doctor did not find any other injury on the head. According to him injury Nos. (4) and (7) which are situated on other parts of the body could be caused by a farsa. P.W. 3 stated that this appellant gave a farsa blow on his back thereby causing a bleeding injury. The doctor P.W. 12 found a cut wound 3" x 1/3" x 1/2" on the right scapular region and opined that this injury could be caused by farsa. Presence of this appellant in the mob is deposed to by P.W. 5. the A. S. I. of Police, This appellant admitted his presence at the spot. On a review of the evidence, we agree with the trial court that this appellant was a member of the unlawful assembly.
17. Appellant No. 2 Puma Chandra Behera was implicated by P.W. 3 alone. According to P.W. 3, this appellant dealt a farsa blow on his head. P.W. 5 the A. S. I. of Police did not say that this appellant was present in the mob. There is no other evidence to corroborate the statement of P.W. 3. He is, therefore, entitled to acquittal.
18. P. Ws. 1, 4, 6, 8, 10, 17, 18, 19 and 20 implicated appellant No. 3 Khatua Behera as one of the assailants of Kulamani. According to them, this appellant stabbed on the back of Kulamani with a tenta. As already stated, the doctor has opined that the external injury No. (1) which proved fatal was caused by stabbing with a tenta. That injury was situated on the back side of the deceased and was perforated from the back side. In the doctor's opinion, this injury was inflicted from the back side and it caused damage to the lung and resulted in death. Thus, the evidence of the witnesses gains corroboration from the medical evidence. Presence of this appellant in the mob is deposed to by P.W. 5. This appellant also admitted his presence at the spot. His membership of the unlawful assembly is clearly established by the evidence as discussed above.
19. Appellant No. 4 Bandhu Behera was implicated by P. Ws. 1, 2, 4 and 19 as one of the assailants of the deceased Kulamani. According to them, this appellant used a tenta in committing the assault. They did not, however, state the particular. part of the body of the deceased on which the injury was inflicted by this appellant. According to the doctor, injury Nos. (2, (6) and (8) on the deadbody of Kulamani could be caused by stabbing with a tenta. This appellant admitted his presence at the spot. The trial court rightly held that he was a member of the unlawful assembly.
20. Appellant No. 5 Daitari Behera was implicated by P. Ws. l and 4 as an assailant of the deceased Kulamani. According to them, this appellant used a tenta in committing the assault. They did not, however, specify the particular part of the body on which the injury was inflicted by this appellant. As mentioned earlier, the doctor has found injuries on the deceased Kulamani which could be caused by a tenta. This appellant was also implicated as an assailant of P.W. 8 Nakula Behera. According to P.W. 8 this appellant assaulted on his head with a tenta. The doctor P.W. 13 who examined p. W, 8 on 28-11-1974 found one lacerated injury over his right eye-brow. The presence of this appellant in the mob is deposed to by P.W. 5. This appellant also admitted his presence at the spot. The evidence as discussed above clearly shows that he was a member of the unlawful assembly.
21. Appellant No. 6 Khetra Behera was implicated by P. Ws. 1 and 4 as one of the assailants of Kulamani. According to them, this appellant used a tenta in committing the assault. They did not, however, specify the particular part of the body on which the injury was caused by this appellant. But the doctor has opined that some of the injuries on the dead body of Kulamani were caused by tenta. This appellant admitted his presence at the place of occurrence. Considering the evidence of P. Ws. 1 and 4 along with the statement of this appellant, we hold that he was a member of the unlawful assembly.
22. Appellant No. 7 Narsingha Behera was implicated as an assailant of P. W- 3. This witness stated that Narasihgha Behera gave a blow by the sharp side of a farsa on the fingers of his left hand. But P.W. 3 had not implicated this appellant as one of his assailants before the Investigating Officer, His statement before the Inyestigaiirig Officer was that accused Jogia Bhoi cut the fingers of his left Hand; There is no other evidence to show that this appellant was a member of the unlawful assembly. He is, therefore, entitled to acquittal.
23. Appellant No, 8 Chandia Behera was implicated by P. Ws. 1. 2, 4 and 19ak an assailant of Kulamani/According to them, this appellant used a, tenta in 'committing the assault. Though they did not specify the particular part of the body on which this appellant inflicted the injury, yet the doctor has opined that some of the injuries on the dead-body of Kulamani could be caused by tenta. According to P. Ws. 2 and 3, this appellant chased them with a tenta in his hand. This appellant admitted his presence at the spot and stated that he had gone to protest against the cutting of paddy by the prosecution party. On a consideration of the evidence of the aforesaid witnesses, and the statement of this appellant Under Section 313, Cr.P.C. we have no doubt in our minds that he was a member of the unlawful assembly.
24. Appellant No. 9 Dija Behera was implicated by P.W. 4 as an assailant of the deceased Kulamani. According to him this appellant used a tenta in committing the assault on Kulamani. His presence in the mob is deposed to by P; W. 5, He himself admitted his presence at the spot and stated that when the prosecution party being armed with deadly weapons went to cut paddy from Panchamanya lands he went there along with others to protest against the paddy cutting. He alleged that he was assaulted by Bhima Behera and Banchhanidhi Swain at the spot. Considering the evidence of P. Ws. 4 and 5 along with his statement before the trial court, we have no manner of doubt that he was a member of the unlawful assembly.
25. Appellant No. 10 Bhramar Behera was implicated as an assailant of de- ceased Kulamani by P.W. 1. P.W. 3, stated that this appellant stabbed with a tenta on the right side of his chest and caused a bleeding injury. The doctor P. W/12 who examined P.W. 3 found one lacerated wound on the right side chest below the right axillary fold and in the injury certificate it has been mentioned, that this injury was caused by a sharp cutting weapon. But during his evidence, in Court, the doctor stated that the injury might have been caused by a blunt weapon, P.W. 8 stated that this appellant stabbed his back with a tenta. The doctor P.W. 13 found one lacerated injury over the right shoulder of P.W. 8 and opined that his injury could be caused by a blunt weapon. P.W. 10 stated that this appellant had a tenta in his hand. During his examination under Section 313, Cr.P.C. this appellant admitted his presence at the spot and stated that he had gone to protest against the cutting of paddy by . the members of the prosecution party. Considering the evidence of the above witnesses along with the statement of this appellant, we have no manner of doubt that he was a member,of the unlawful assembly.
26. Appellant No. 11 Bhramar Samal was implicated by P. Ws. 18 and 19 as an assailant of deceased Kulamani. He was also implicated as an, assailant of Kunja Samal by P. Ws. 4, 17 and 23. According to these witnesses, this appellant was armed with a tenta. P.W. 5 implicated this appellant as a member of the mob. The evidence of P.W. 5 also shows that on 28-11-1974 when he went to serve the orders Under Section 144, Cr.P.C. this appellant told him in a threatening voile that if he served the notices on that day he would not be allowed to return back with his life from the village. The evidence of P.W. 5 also shows that this appellant had been served with order Under Section 144, Cr.P.C. on 27-11-1974, but he disobeyed the order. During his examination in Court, this appellant admitted his presence at the spot. The evidence on if.e record clearly shows that he was a member of the unlawful assembly,
27. Appellant No. 12 Kumar Samal was implicated as an assailant of deceased Kunja Samal by P. Ws, 1, 18, 19, 20 and 23. According to these witnesses, this appellant caused injuries on Kunja Samal with a tenta. Though they did not specify the particular parls of the body on which the injuries were caused, the doctor P.W. 12 who held post-mortem examination over the dead body of Kunja Sanaal opined that the injury on the abdomen could be caused by stabbing with a tenta and that this injury was sufficient in the ordinary course of nature to cause death. P.W. 8 stated that this appellant assaulted him with a lathi on his right leg. P.W. 9 also stated that this appellant chased him with a tenta while he was runnin8 away. The presence of this appellant in the mob is deposed to by P.W. 5, the A S. I. of police, P.W. 5 stated that,on 28-11-1974 when he went to serve the orders Under Section 144, Cr.P.C. this appellant along with appellant No. 11 Bhramar Samai met him and told in a threaten--ing voice that if he served the notice on that day he would not be allowed to return back with his life from the village. During his examination Under Section 313, Cr.P.C. this appellant admitted his presence at the spot: and stated that he had gone there along with others, to protest against the cutting of the paddy by the members of the prosecution party, The evidence led by the prosecution coupled with the statement of this appellant clearly proves his membership of the unlawful assembly.
28. Appellant No. 13 Jugal Samal was implicated by p. Ws. 4 and 18 as an assailant of deceased Kunia Samal. According to P.W. 4, this appellant stabbed on the chest of Kunia Samla. The doctor P, W. 12 found injuries over the right side of the scalp, right parietal eminence, right temporal region posterior aspect of the left ear pinna, left side of abdomen over lumber region and on the left ear pinna. According to him the injury on the abdomen could be caused by a tenta and this injury proved fatal. P.W. 18 stated to have seen this appellant assaulting Kunja Samal wxth a tenta. But he could not say on which part of the body the injury was caused. The evidence of P.W. 5 shows that this appellant was served with the orders Under Section 144. Cr.P.C. on 27-11-1974. During his examination in Court, this appellant admitted his presence at the spot and stated that on getting information that the prosecution party had gone to the Palnchamanya lands to cut paddy he went with others to protest. On a review of the evidence on the record, we are satisfied that he was a member of the unlawful assembly.
29. Appellant No. 14 Arakhita Bhoi was implicated by P.W. 19 as an assailant of the deceased Kunj, a Samal. According to P.W. 7, this appellant gave a tenta blow on his right hand, p, W, 10 also stated that this appellant assaulted P.W. 7 with the bamboo portion of the tenta and further stated that he himself was chased by this appellant. During his examination in Court, this appellant. admitted his presence at the spot and stated that he had gone there to protest against the action of the prosecution party in cutting the paddy from, Panchamania lands. Considering the evidence of the above witnesses along with the statement of this appellant in Court, we have no manner of doubt that he was a member of the unlawful assembly.
30. Appellant No. 15 Sankar 3hoi has been implicated by P. Ws. 1, 2, 10, 18, 19 and 20 as an assailant of deceased Kulamani. According to P.W. 10, this appellant stabbed with a tenta on the right leg of Kulamani. p, Ws. 18, 19 and 20 stated that this appellant stabbed with a tenta on the left leg and knee of Kulamani. The doctor P.W. 14 found cut wounds on the left leg and knee joint of the dead body of Kulamani. According to P.W. 9 this appellant chased him with a Bhali in his hand while he was running away. We see no cogent ground to disbelieve the evidence of these witnesses. During his examination in Court, this appellant admitted his presence at the spot and stated that he had gone their to prohibit the prosecution party from cutting away the paddy crops. His membership of the unlawful assembly is clearly established by the evidence on the record.
31. Appellant No. 16 Prahallad Bhoi has been implicated by P. Ws 1, 10, 18, 19 and 20 as an assailant of the deceased Kunja Samal. According to them, this appellant stabbed the belly of Kunja Samal with a tenta. The doctor P, W. 12 noticed one cut penetrating wound 1 1/2" x 1 1/4" x cavity deep obliquely over the left side abdomen directed medially downwards and the doctor opined that the injury on the abdomen could be caused by stabbing with a tenta and that it was sufficient in the ordinary course of nautre to cause death. The presence of this appellant in the mob is deposed to by P.W. 5, the A. S. I. of Police. During his examination in Court, this appellant admitted his presence at the spot and stated that on getting information that the prosecution party had gone with deadly weapons to Panchamania lands, he along with others went there to prohibit them from cutting away the paddy. On a review of the evidence, we have no manner of doubt that this appellant was a member of the unlawful assembly.
32. In the ultimate analysis, we allow the appeal so far as appellant No. 2 Purna Chandra Behera and appellant No. 7 Narasjngha Behera are concerned and set aside their convictions and sentences. We direct their release forthwith. The appeal so far as it relates to the the other appellants is dismissed, the convictions and the sentences being maintained.
Behera, J.
33. I agree.