R.N. Biswal, J.
1. Both the appeals having arisen out of one judgment, the same were heard together and a common judgment is passed thereon.
2. Succinctly stated, the prosecution case is that on 12.3.1990 at about 8.00 A.M. Ranjit Meher (P.W. 11), Ramanath Mehera (P.W. 1), Pitabash Meher (P.W. 10) and about 40 to 50 others had been on a picnic to Sighinika jungle. At about 12.30 P.M. accused Puma Behera, Babru Behera and Sala Behera came to the picnic spot and asked to provide them food. While all the members of the picnic party and the aforesaid three persons were taking their food, Babru Behera started throwing rice at which Ranjit Meher (P.W. 11) rebuked him. Then Sala Behera, Babru Behera and Puma Behera stopped taking food and left the place. After the picnic was over Ranjit Meher (P.W. 11), Pitabash Meher (P.W. 10) and about five to six others returned in a jeep being driven by Narasingh Behera, while the rest returned in cycles. On the way, about 1 K.M. ahead of village Rampur, Narasingh Behera stopped the jeep and all the inmates including P.Ws. 10 and 11 got down from it and went on foot towards Rampur. At about 4.00 P.M., near Kantapali Chhak, accused Babru Behera being armed with Tabli, accused Kailash Behera with Tangi, Sudarsan Behera with Katuri, Udaya Behera and his father Purna Behera each with a lathi and some others were found standing in groups. When P.Ws.10 and 11 reached near them, they assaulted them indiscriminately with the weapons they were armed with, causing bleeding injuries.
3. On the same day at 10.00 P.M. Ramanath Meher (P.W. 10) lodged a written report before the O.I.C. of Rampur P.S. who entered the allegation in the Station Diary and transmitted the F.I.R. to the O.I.C. of Dungripali P.S. As the allegation contained in the F.I.R. revealed a cognizable case, the O.I.C. of Dungripali P.S. registered P.S. Case No. 19 of 1990 under Sections 147/148/323/325/326/324/307 read with Section 149 of I.P.C. and directed the O.I.C. of Rampur P.S. (P.W. 13) to investigate the case. Accordingly P.W. 13 investigated it. In course of investigation he visited the spot, examined the witnesses and seized the material objects, sent the injured persons (P.Ws. 10 and 11) and accused Sudarsan Behera and Babru Behera to hospital for their examination. On 17.3.1990 he arrested accused Sudarsan Behera, Puma Chandra Behera, Durbadal Behera and Udayanath Behera and forwarded them to Court and on completion of investigation, submitted Charge Sheet against all the accused persons.
4. All the accused persons took the plea of denial. Accused Sudarsan Behera further took the plea of alibi. The case having been committed to the Court of Sessions Judge, Balangir, it was transferred to the Court of Assistant Sessions Judge, Sonepur, who framed charge under Sections 148/307 read with Section 149 of I.P.C. against all the accused persons.
5. In order to establish its case prosecution examined 13 witnesses as against 4 witnesses examined on behalf of the defence. After assessing the evidence on record, the trial Court found the accused per so is guilty of the offence under Sections 148/307/149 of I.P.C. and sentenced each of the convicts to undergo R.I. for eight years and to pay a fine of Rs.500/- for the offence under Section 307 read with Section 149 of I.P.C. and R.I. for six months for the offence under Section 148 of I.P.C. and directed that both the sentences would run concurrently. Being aggrieved with the said order of conviction and sentence the appellants have preferred the aforesaid two Appeals.
6. At the outset learned Counsel for the Appellants submitted that a counter case bearing Dungripali P.S. Case No. 20 of 1990 was registered against the informant party wherein Charge Sheet was submitted under Section 307/34 of I.P.C. It also transpires from the evidence of P.W. 3 that there was assault and counter assault between the two parties. So, the trial Court committed error in convicting all the Appellant's for the offence under Sections 148/307 read with Section 149 of I.P.C. When there was a free fight between the two groups, the trial Court ought not have convicted the Appellants under Sections 148/307 read with Section 149 of I.P.C. i am in agreement with the submission of learned Counsel for the Appellants, but if it is proved that the Appellants assaulted any member of the informant party, they would be liable severally for their respective overt act. Learned Counsel for the Appellants further submitted that evidence of the prosecution witnesses suffers from inconsistency and major contradictions. As such, none of the Appellants can be liable for any offence, particularly when the injuries sustained by P.Ws. 10 and 11 have not been explained by the prosecution.
7. Now, it is to be seen whether the evidence of the prosecution witnesses suffered from inconsistency and contradictions, so as to disbelieve their testimony. It transpires from the evidence of P.W.1 that Appellant Purna was armed with a Thenga, Babru with a Tabli, Kailash with an axe, Sudarsan with a Katuri and Udayanath with a Badi fixed with a motor cycle chain. He further stated that while Appellant Babru was attempting to inflict a Tabli blow on P.W. 11, it feel on the knee of Appellant Kailash. Thereafter, he inflicted another blow with the said Tabli on the foot of Ranjit Meher (P.W. 11). Furthermore, he stated that Appellant Sudarsan gave a blow to the left hand of Ranjit Meher causing severance of the ring finger and cut injuries on the little and middle fingers and that Appellant Purna gave a blow to the right shoulder of Pitabas and Sudarsan gave a blow on his (Pitabas) left leg.
8. On perusal of the evidence of P.W. 2 it is found that while Appellant Babru was inflicting a Tabli blow to P.W. 11 it struck Appellant Kailash. He dealt another Tabli blow on the left leg of P.W. 11 for which he fell down. He has not stated anything more implicating the other Appellants in the alleged crime. It transpires from the evidence of P.W. 3, that Appellant Babru was armed with Tabli, Purna with a lathi, fixed with a motor cycle liver clutch and Udayanath with a Katari. It is his specific evidence that Appellant Durbadal was not holding anything. As stated earlier, as per the evidence of P.W. 1, Udayanath was armed with a Badi, so also Kailash. So the evidence of P.Ws. 1 and 3 differ with regard to the weapon of offence said to have held by Appellant Udaya. P.W. 6 deposed that Babru was armed with a Tabli, Sudarsan with a Katuri, Kailash with a Tangi, Purna with a Thenga and Udaya with a small Badi to which something was affixed. But as stated earlier, as per the evidence of P.W. 3 Kailash was armed with a Badi. Furthermore, P.W. 6 has not stated before the I.O. that Sudarsan was armed with a Katuri, Kailash with a Tangi and Udaya with a Badi affixed with something. So, this part of the evidence of P.W. 6 cannot be relied upon. P.W. 7 deposed before the trial Court that accused persons assaulted P.Ws. 10 and 11, so out of fear he went to a distance. His evidence is not specific as to who assaulted whom. So, the evidence of this witness is of not much importance. It transpires from the evidence of P.W. 8, that Babru was armed with a Tabli, Purna and his son Udaya each with a lathi and that Purna, Sudarsan, Babru and Durbadal assaulted P.W. 11. When Purna and Udaya were not armed with any weapon, if at all they assaulted P.W. 11 they assaulted him with hands and legs. But it is not the case of the prosecution that any of the accused persons assaulted P.W. 11 with kicks, fist blows or slaps. As discussed above, the evidence of the witnesses differ from one another in material particulars. Furthermore, it transpires from the evidence of P.W. 4, the doctor that on 13.3.1990 he examined appellant Kailash Behera and found one incised wound of size 4' X 2' X 2.1/2' over the front of right thigh 2' above knee, cutting a part of the femur bone. The said injury was grievous in nature. So it was the duty of the prosecution to explain as to how appellant Kailash Behera sustained that injury. Some of the witnesses have stated that while appellant Babru was inflicting a Tabli blow on P.W. 11, it fell on Kailash for which that injury was caused. But this does not satisfy the conscience. Admittedly there was case and counter case between the parties. Appellants Kailash and Babru sustained injuries because of the clash, so also P.Ws. 10 and 11. As stated earlier, in a clash between two groups each accused would be held responsible for the overt act he played, but in the case at hand due to the contradictions and inconsistency in the evidence of the prosecution witnesses, the injuries sustained by P.Ws. 10 and 11 cannot be definitely attributed to any of the appellants. This aspect was not considered by the trial Court. The Appellants might have committed the alleged offences, but there is a long gap between might have and must have. Prosecution failed to prove beyond all reasonable doubt, that the Appellants committed the alleged offences. So they deserve to be acquitted under benefit of doubt. Furthermore, the occurrence took place on 12.3.1990. Appellants faced the ordeal of trial till 23.12.1991, when the judgment was passed. The appeals are pending since the year 1992.
9. Taking all these facts into consideration, the appeal is allowed and the judgment and order of conviction and sentence as passed by the trial Court are hereby set aside and the appellants are acquitted of all the charges under benefit of doubt. Their bail bonds be cancelled.