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2. Prosecution case, briefly stated, runs as follows :--On 15-4-1989 at about noon when p. w. 4 was returning to his house in village Mahulpatna undet Baisinga police station in the district of Mayurbhanj from Basanti Mandap in the nearby village Bachhuripada, Sanatan Acharya, the appellant in Criminal Appeal No. 115/1391 restrained him and assaulted him by dealing two fist blows on his face alleging that he (p. w. 4) had joined the rival group in the village and after being assaulted p.-w. 4 rushed back to Basanti Mandap and narrated the occurrence to his father Chhachindra Bebera (deceased) and the informant (p. w. 1). Accompanied by p. w. 1, p. w. 4 went to Baisinga police station and after lodging a written report returned back to Basanti Mandap. P. w. 1 went to his house and at about 4 p. m. that day hearing hulla at the Basanti Mandap he came out of his house and found the eight appellants along with twentythree co-accused persons (since acquitted), being armed with lathis, were challenging p. w. 4 as to why he reported the aforesaid matter to police and were having altercation with p. w. 4, his father (deceased), p. w. 2 and p. w. 6. At that time, Pramod Panigrahi (p, w. 3), Prasanta Panigrahi and Subash Panigrahi reached there. The deceased questioned the appellants and the other co-accused persons as to why they assaulted his son p. w. 4. It is alleged that when the informant intervened, appellant Larman Das (appellant No. 4) and appellant Sarbeswar Das (appellant No. 3) assaulted him with lathis on his head and hand resulting in bleeding injuries on his head. The informant fell down on the ground after the assault. Appellants Bhagaban Panda (appellant No. 1), Pradeep Panda (appellant No. 6) and appellant No. 3 assaulted the deceased by means of lathis on his head, hand and waist as a result of which he fell down on the ground and became unconscious. Witnessing assault on the informant and the deceased, p. ws. 3, 4 and others protested the appellants and their co-accused persons, but they were also assaulted by means of lathis resulting in bleeding injuries on their head and other parts of body. It is further alleged that some of the accused persons pelted brickbats as a result of which Prasanta Panigrahi sustained bleeding injuries on his head. When the deceased was found unconscious, the informant shouted that the deceased had breathed his last where after the accused persons fled away with their lathis. It is alleged that due to rivalry between two groups of villagers the prosecution witnesses along with others of their group had performed Basanti Puja separately for which p. w. 4 was assaulted and after that the present occurrence took place. At about 4.45 p. m. the informant (p.w. 1) reported the occurrence to the O. I. C., Baisinga P. S. (p w. 8) who reduced the same to writing, registered a case under sections 147, 148, 337, 323, 506/ 149, I. P. C. and took up investigation. During investigation p. w. 8 examined witnesses, sent, the injured persons for medical examination, visited the spot and found broken bricks and stains of blood on the ground, arrested the accused persons and forwarded them to court in custody. When he received information that the condition of the deceased was deteriorating, he went to the hospital, but the dying declaration of the deceased could not be recorded since he was unconscious. On 6-5-1989 the deceased succumbed to the injuries while he was under treatment in the District' Headquarters Hospital, Baripada. After the death of the deceased the case was converted to one under section 302, I. P. C. P. w. 8 beld inquest over the deadbody of the deceased, sent the same for post-mortem examination, seized the bed-head ticket, etc. from the hospital and on 15-5-1989 the Circle Inspector of Police, Betnati took over charge of investigation of the case from p. w. 8 and after completion of investigation submitted chargesheet under sections 147, 148, 337, 506, 302/149, I. P. C. against thirtyone accused persons named in the F. I. R.. All the accused persons stood their trial and eight of them (the appellants in these two appeals) were found guilty and were convicted under sections 148, 325/149 and 323/149, I. P. C. and were sentenced as stated earlier. But they were found not guilty of the charge under section 302, I. P. C. and were acquitted. The remaining twenty three accused persons were found not guilty and were acquitted of the charge.

11. Besides the above inconsistencies in the statements of p. ws. 1, 2, 3 and 4 with the medical evidence on record, the following facts are worth-noticing for proper appreciation of the testimony of the eye-witnesses to the occurrence.

12. The informant p. w. 1 has stated that when he tried to intervene during discussion between the appellants and the other accused persons on one side and the deceased and p. w. 4 on the other side, he was assaulted by accused persons Laxman Das and Sarbeswar Panda and thereafter when the deceased tried to intervene he was assaulted by accused persons Sarbeswar Panda, Pradeep Panda and Bhagaban Panda, as a result of which he fell down and became unconscious and thereafter when p. ws 2 and 3 tried to rescue the deceased they were also assaulted by accussd persons Sarbeswar Panda, Sanatan Acharya. Santosh Panda and Deepak Panda. He has added that Pravash Panigrahi and Suresh Panigrahi were also assaulted and injured, but did not state as to which of the accused parsons assaulted them. Further he has stated that accused Sadhak Narayan Nanda pelted brickbats which struck near the left ear of Prasanta Panigtahi who has not been examined as a witness in this case. Thereafter he raised alarm and the accused persons left the place with their lathis. In his statement in cross-examination p. w. 1 has stated that p. w. 3 and Prasanta Panigrahi are his brother and p. ws 2, 6 and Subas are the sons of his another brother - Purna, and that there was dispute regarding performance of Puja in the year 1988 when, he was one of the office-bearers of the Puja Committee and was managing the Puja. He has stated that the Basanti Puja Mandap is situated in his village and the residents of three adjoining villages, viz., Gapalpur, Mahulpatna and Bachhuripada, were performing Puja jointly in the said Mandap. He admitted that since the dispute there were factions and the accused persons belonged to one faction; whereas he and his family members belonged to the other faction and that the family members of the deceased and Janardan Das belonged to his group and the accused persons had started performing Puja separately on the land of said Janardan Das; whereas p. w. 1 and his supporters continued to perform Puja on the old Mandap where the alleged occurrence took place. P. w. 1 has also stated that except the accused persons named as the assailants the other co-accused persons were only shouting. He has admitted that he has not stated in the F.T.R. that the accused persons including accused Sanatan Acharya were challenging p. w. 4 as to why he was in the other group instead of joining their group and that he did not Specifi-cally state in his report that Pramod Panigrahi and sutesh Panigrahj were assaulted by accused persons Sarbeswar and Sanatan with lathis and that he could not recollect if he had stated the same before the investigating officer.

13. P. w. 2 has stated that after departure of the accused persons from the place of occurrence he found that Prasanta Panigrahi, Pramod Panigrahi, Pravash Panigrahi and Subas Panigrahi had sustained injuries, but has not stated as to how they sustained the injuries. In his statement in cross-examination p. w. 2 has stated that lathi blows were dealt by the accused persons with force and that p. w. 1 sustained one swelling on his finger, which has not been stated by p. w. 1 himself. According to p. w. 2, the deceased was assaulted by the accused persons on the Puja Mandap which is of the size 12' X 12' and p. w. 1 was assaulted on the road by the side of the Mandap. But according to p. w. 1 when he was assaulted by the accused persons, the deceased intervened and was assaulted and he fell down and became unconscious.

15. P. w. 4 who is the son of the deceased has stated that he was present on the Mandap and his father (deceased) was sitting on the verandah when the accused persons arrived there in a group being armed and that Kali Charan Behera, Banamali Behera, Trilochan Das and Khageswar Palei were not present along with the accused persons at that time which he has stated before the I.O, (p. w. 8). Though he has not stated before the I. O. (p. w. 8) to have seen accused persons Sanyasi Das, Amar Das, Brundaban Panda, Karunakar Panda, Santosh Nanda and Sadhak Narayan Nanda at the place of occurrence and that p. w. 1 had accompanied him to the police station after the occurrence that took place in the noon, he has stated the same in court. P. w. 4 has stated that the members of both the groups were present on the Mandap when the assault took place. It cannot be believed for a moment that such a large number of persons were present on the Mandap which is stated to be of the size 12' X 12' when the deceased was assaulted by means of lathis. Thus the statement of p. w. 4 is not free from infirmities and improbabilities and it is also tainted with interestedness and hence cannot be relied upon.