L. Mohapatra, J.
1. All the appellants having been convicted for commission of the offences under Section 302 read with Section 34 of the Indian Penal Code and sentenced to imprisonment for life by the learned Sessions Judge, Dhenkanal-Angul in S.T. Case No. 79 of 1993 have preferred this appeal.
2. The case of the prosecution is that accused Gadadhar Dehury had a daughter, namely, Susama Dehury, who fell in love with deceased Girish Naik of the same village and ultimately because of protest from the family members on the ground of caste, in the month of June, 1992 the deceased Girish took away Susama (P.W.9) from the village and got married to her in a Court at Hindol. Thereafter, they came back to the village and stayed in the house of the deceased. On account of the above, there was ill feeling between accused Gadadhar Dehury and the deceased. On 27.10.1992 at about 4.00 P.M. when the deceased had come to the village tank near the house of Gadadhar along with one Saranga and Murali Naik (P.W.4), a quarrel ensued between accused Gadadhar and Girish. After some time, when the deceased and Murali (P.W.4) were proceeding towards the house of the deceased, all the accused persons being armed with axe, kataris, spear and lathis surrounded the deceased, dragged him to the land of one Budhia Behera and assaulted him, as a result of which the deceased died at the spot. Susama (P.W.9), wife of the deceased and daughter of Gadadhar Dehury, saw the occurrence and tried to intervene but she was chased away by the accused persons. After the accused persons left the spot, P.W.9 went near the deceased. The brother of the deceased, namely, Suresh Naik also arrived at the spot and they carried the deceased to the verandah. But by that time, the deceased had succumbed to the injuries. In the same night, Gadadhar proceeded to Rasol P.S. along with the axe at about 10.15 P.M., produced the same before the O.I.C. and narrated the incident and a Station Diary entry was made accordingly. The axe was seized and Gadadhar Dehury was detained in police custody. Thereafter, the O.I.C. proceeded to the village where the occurrence had taken place. He reached the place of occurrence on 28.10.1992, drew up plain paper FIR and took up investigation. After completion of investigation, charge-sheet was filed against 9 accused persons including the present appellants for commission of offences under Section 302/34 of the Indian Penal Code.
3. The plea of defence was complete denial of the prosecution case.
4. The prosecution in order to bring home the charges examined 10 witnesses, but none was examined on behalf of the appellants. On analysis of the evidence adduced, in particular, relying upon the evidence of P.Ws.3, 4, 7 and the medical evidence the trial Court found all the 8 appellants guilty of committing the offence under Section 302/34 IPC, convicted them thereunder and sentenced them to imprisonment for life. Only accused Ramesh Behera was acquitted.
5. Learned Counsel appearing for the appellants assails the impugned judgment on the ground that neither P.W.3 nor P.W.4 had seen the actual occurrence and none of these two witnesses has stated anything about the assault on the deceased. P.W.9, who is the wife of the deceased and projected by the prosecution as an eye witness to the occurrence, also turned hostile and did not support the case of the prosecution. According to the learned Counsel for the appellants, since there is absolutely no evidence on record to show that these appellants had assaulted the deceased, the order of conviction under Section 302/34 IPC cannot be sustained.
6. Learned Counsel for the State relied on the evidence of very same witnesses to support the trial Court judgment.
7. We have carefully examined the evidence adduced before the trial Court. P.W.3 was examined by the prosecution as an eye witness to the occurrence. He in his deposition stated that on the date of occurrence he saw the deceased, Saranga and Murali standing on the ridge of the village tank. At that time, accused Gada was in his house at a distance 300 cubits from the ridge of the tank and Gada was quarrelling from his house and both Gada and Girish were abusing each other. Thereafter Girish and Murali proceeded towards the house of deceased Girish. At that time, accused Mohan and Laxman came from the front side. They prevented the deceased on the way. Giria, Hari, Banamali and Bhaja came from 'Beela' side and accused Gada and Sada came to that place from their house and all of them started (sic) with the deceased. One Pitabas came with a 'Barcha'. Appellant Mohan was holding one 'Tangia' and others were holding lathi and 'kati'. Apprehending trouble, he left that place. This witness was declared hostile and was cross-examined by the prosecution as well as defence. In cross-examination, he has also stated that he left for his house while the accused persons and the deceased were quarrelling near the house of Uchhei Sahu. Murali and Saranga were at the spot when he left. Similarly, P.W.4, who was also examined as an eye witness to the occurrence by the prosecution, only stated about the presence of the accused persons with arms. Much reliance was placed by the learned Counsel for the State on this witness to say that he had seen the assault on the deceased. In examination-in-chief, this witness has stated that all the accused persons surrounded deceased Girish and while they started attacking him he escaped from that place out of fear. In cross-examination this witness has stated that the police asked him to say that he had seen the murder of the deceased. He has further stated in cross-examination that he left the place after the accused persons surrounded the deceased with arms. Therefore, P.Ws.3 and 4 do not claim to have seen the assault on the deceased. The other eye witness to the occurrence is the wife of the deceased, P.W.9, who turned hostile and did not support the case of the prosecution at all. Reliance has been placed by the trial Court on the evidence of P.W.7, who was present in Rasol Police Station when, it is alleged, accused Gadadhar Dehury appeared before the OIC with 'Tangia' and declared to have killed the deceased by means of the said 'Tangia'. However, it appears from his evidence that though he could identify the 'Tangia' (M.O.I.), he failed to identify the accused Gadadhar Dehury. Therefore, on analysis of the evidence of these material witnesses, we find that the prosecution has been able to prove that all the appellants were armed and had surrounded the deceased on the date of occurrence and that there was exchange of abusive words between them. There being no evidence at all to show that anyone of the appellants or all the appellants assaulted the deceased, we are of the considered view that the trial Court committed an error by convicting the appellants for commission of offence under Section 302/34 IPC. If the entire prosecution case is accepted, the appellants can only be found guilty of committing offence under Section 341, IPC. We, therefore, set aside the impugned judgment of conviction and sentence, convict the appellants for commission of offence under Section 341 of the IPC and sentence each one of them to R.I. for one year.
8. In the result, the appeal is allowed to the extent indicated above.
Pradip Mohanty, J.
9. I agree.