JUDGMENT : Rao, J. - These two appeals arise out of the same judgment of Shri G. Ranga Row, Additional Sessions Judge, Cuttack. They were heard together. After the close of the hearing, we passed an order on 6-8-57 allowing Criminal Appeal No. 105 of 1955 and acquitting the seven Appellants and dismissing Government Appeal No. 2 of 1956, and reserved our reasons for the same. The reasons for our order are given hereunder. 2. Government Appeal No. 2 of 1956 was filed against 14 accused persons who were acquitted by the learned Additional Sessions Judge after trial on charges under Sections 148, 502109, 147109, 147 and 353 of the Indian Penal Code along with others. Respondents 11 to 13 in the Government Appeal, Hadibandhu Sahu, Krishnamohan Sahu, and Garuda Das were charged under Sections 392109 and 147109 I.P.C., Respondents 1 to 6 Basudeb Senapati, Ghanashyam Senapati, Dibakar Sahu, Dinabandhu Senapati, Fakir Senapati and Maheswar Sutar were charged u/s 302 read with Section 34 and Section 148 I.P.C., and Respondents 7 to 10 and 14 Jayaram Sahu, Krutibas Senapati, Danei Senapati, Daitari Senapati and Batakrushna Sahu were charged u/s 147 I.P.C. Respondents 2 and 3 were further charged u/s 353 I.P.C. No appeal is filed by the Government against the acquittal of accused Nos. 9 to 11; 15 and 19 to 33 of the offence of rioting punishable u/s 147 I.P.C. The Government Appeal Is against the acquittal of Respondents 1 to 6 on the charge of committing an offence u/s 302 read with Section 34 I.P.C.; against the acquittal of Respondents 11 to 13 on charges punishable under Sections 302109 and 147109 I.P.C. and against the acquittal of Respondents 7 to 10 and 14 on a charge u/s 147 I.P.C. During the course of argument, the teamed Government Advocate frankly conceded that he does not press the appeal against the accused other than accused Nos. 16, 17 and 18 for abetment of murder and against accused Nos. 1 to 6 for murder. Consequently, the Government Appeal was confined to these accused persons who are Respondents 11 to 13 and Respondents 1 to 6. 3. The Criminal Appeal is filed by Respondents 1 to 6 In the Government Appeal against their convictions and sentences u/s 148 I.P.C. and by accused No. 7 against his conviction and sentence u/s 147 I.P.C. 4. Consequently, the Government Appeal was confined to these accused persons who are Respondents 11 to 13 and Respondents 1 to 6. 3. The Criminal Appeal is filed by Respondents 1 to 6 In the Government Appeal against their convictions and sentences u/s 148 I.P.C. and by accused No. 7 against his conviction and sentence u/s 147 I.P.C. 4. The case was originally instituted by the Officer in charge of Patkura Police Station against 36 accused persons charging them with rioting with deadly weapons, assault on a public servant on duty and causing murder of one Madhusudan Samantaray on 21-10-1953 in Pikrali village. The Committing Magistrate in the first Instance committed only 18 accused persons to take their trial before the Sessions Court by his order dated 8-11-1954 and discharged the others. There was a revision petition filed against the order of discharge of the other accused before the Additional District Magistrate of which Haladhar Sahu, Appellant 7 in the Criminal Appeal is one and the Additional District Magistrate directed that all the 18 discharged accused persons except one should also he committed for trial along with the 18 others committed in the first instance. I may note here that the Magistrate who committed the 18 persons for trial and discharged the 18 others did not note the names of the discharged accused and the order. He ought to have done so and ought not to have simply given the names of 18 persons who were committed for trial in his order which is also an order of discharge against the other accused persons. The Additional District Magistrate also committed a mistake in not naming all the Respondents to the revision petition in his order of commitment. He contended himself by naming the persons as Nabaghana Sahu and 17 others. It is necessary that in the order of either commitment or discharge the names of all the accused persons should be noted. It is regrettable that these elementary and fundamental requisites are not observed by the magistracy even including the Additional District Magistrate. The omission to do so is a grave irregularity which should be noted by the magistracy, as it would cause great hardship to the persons who were discharged, in not being able to produce an order of the Court which shows that they are discharged. The omission to do so is a grave irregularity which should be noted by the magistracy, as it would cause great hardship to the persons who were discharged, in not being able to produce an order of the Court which shows that they are discharged. Thus 35 persons in all were committed to take their trial before the Court of Sessions of whom one of the accused persons Hadi Senapati died and consequently the trial proceeded against only 34 persons. 5. The prosecution case is briefly as follows:-In about 1948 the deceased Madhusudan Samantaray who was the President of Union No. 8 obtained on Patta from the then Zamindar of Kujang a piece of anabadi land measuring about 10 acres within plot No. 402 to khata No. 220 of village Bhusrang, but could not secure effective possessions of the same on account of the opposition of the villagers who wanted the same for their Gochar. The villagers moved the authorities including some Ministers to see that the land was secured back as village Gochar. Enquiries made were by the local officials of whom P.W. 13 is one who was the Third Officer of Kendrapara. The Sub-Divisional Officer (P.W. 21) also made an enquiry and he found no justification for the demand of the villagers. This is evidenced by Exts 15 to 18 and 23 series. The District Collector even proposed to the Sub-Divisional Officer to enquire whether the land can be acquired in order to be made Gochar of village Bhusrang, but nevertheless the officers of the Sub-Division were emphatically of the view that the demand of the villagers was unfounded; that there was no necessity to acquire the land for Gochar; and that the deceased Madhusudan Samantaray acquired a valid Patta of the anabadi land and his rights to the same were to be protected. The result was a tension between Madhusudan Samantaray on one side and the villagers on the other, in consequence of which the local police recommended for immediate preventive action in the year 1952 and the Sob-Divisional Magistrate (p. W. 21, issued an ex parte order u/s 144 Code of Criminal Procedure against the accused persons and thus averted a breach of the peek. The deceased got some sort of possession of the land, but the managers again in October 1953 dispossessed him. The deceased got some sort of possession of the land, but the managers again in October 1953 dispossessed him. Again an ex parte order u/s 144 Code of Criminal Procedure was obtained against the villagers including some (of the accused persons). In October 1953 which gave rise to this occurrence at the time when the said order u/s 144 Code of Criminal Procedure (Ext. 41) was promulgated. 6. In the early hours of 21-10-1958, It is stated, the police constable (P.W. 1) along with the Daffadar (P.W. 2) and another chouddar went to the village to serve the notice on the accused persons, but none of them barring accused No. 34 accepted the notice. Thereafter P. Ws, 1 and 2 went to the anabadi for promulgation of the order and on the way were met by the deceased with his servants drummers and some choukidars. They all went over the land and started promulgating the order and before it was completed and while the servants of the deceased were sowing Biri, on the information passed by Haladhar Sahu accused No. 7, accused Nos. 1 to 6 armed with lathis rushed towards the land, pulled out the flags, shouted for their villagers working in the vicinity and attacked the deceased and severely battered him white he was fleeing across a Joro. While attempting to protect the deceased, the constable (P. W.I) and others were also molested. In the meanwhile about 40 others including accused Nos. 8 to 15 and 19 to 34 armed with (sic) this came over the anabadi. By then the deceased crossed the Joro and reached the village Talsingh and hence they all returned back. This part of the occurrence forms the first part of the alleged offences charged against the accused. 7. It is next alleged that the deceased was given first aid on the Bundh of the river Chitrotpala and was advised by his servants and others to go home but he insisted on proceeding to the Police Station to lodge a report himself. Hence they all proceeded with the deceased across the river by a boat and reached the school house at Parkula where the deceased took rest, while arrangements were being made to secure a Bhara for carrying him to the Police Station. Hence they all proceeded with the deceased across the river by a boat and reached the school house at Parkula where the deceased took rest, while arrangements were being made to secure a Bhara for carrying him to the Police Station. But as, there was delay in securing the same, the deceased became impatient and left with his servants by foot across the paddy fields. The constable and party who went to procure the Bhara finding the deceased going ahead across the fields took the village rasta expecting to overtake him. But white they were at Kantagovindpur village, they heard a hulla from the side of the fields. Then they hurried towards the fields and found the deceased lying dead with injuries. 8. The prosecution Case is that the accused Hadibandhu Sahu of Khamangabindha an adjoining village (accused 16), Krishnamohan Sahu and Garuda Das (accused 17 and 18), Respondents 11 to 13 in the Government Appeal who were the leaders of the accused party instigated the accused persons to prevent the promulgation of the order u/s 144 Code of Criminal Procedure and to kill the deceased if he should go over the land, keeping themselves behind. It is alleged that they became annoyed at the accused returning allowing the deceased to escape and directed the accused to go and kill the deceased before he reached the Police Station. The same batch of accused who took part in the morning assault, accused Nos. 1 to 6 proceeded in the direction of pikrali side, overtook the deceased in the fields, scared away his servants and brutally put him to death, threw the body in a channel and returned to the village shouting that they had killed the deceased and would also kill Dharanidhar Senapati and lndramani Senapati (P. Ws. 19 and 34) and then face the fallows. 9. The Respondents pleaded not guilty. Their case was that the local authorities played themselves into the hands of the deceased who happened to be the brother of Shri Peari Mohan Samantaray of the Orissa Administrative Service and an Under-Secretary of the Revenue Board; and that they did not go over the anabadi land at the time when the order u/s 144 Code of Criminal Procedure was promulgated. They pleaded that they had nothing to do with the killing of the deceased on the fields of Pikrali and had been falsely implicated on suspicion and due to previous enmity. 10. The learned Additional Sessions Judge, after a careful consideration of the entire prosecution evidence, crime to the conclusion that the prosecution failed to prove the abetment of murder by Respondents 11 to 13 as also the murder by Respondents 1 to 6 and acquitted them. He also held that except Respondents 1 to 7, none of the other accused was guilty of rioting and convicted Respondents 1 to 7 as stated previously. 11. The learned Government Advocate who argued the Government Appeal with ability and commendable fairness frankly submitted that he could not contend that the acquittal was contrary to law, but contended that the said acquittal was contrary to the evidence on record and unreasonable. He contended that the learned Additional Sessions Judge did not correctly appreciate the evidence and come to a wrong conclusion that the Respondents were not guilty. 12. 43 witnesses were examined for the prosecution, four witnesses were examined as court witnesses and Exts. 1 to 53 were marked. Material objects I to XVII were exhibited. The defence marked Exts. A to V in evidence. 13. 12. 43 witnesses were examined for the prosecution, four witnesses were examined as court witnesses and Exts. 1 to 53 were marked. Material objects I to XVII were exhibited. The defence marked Exts. A to V in evidence. 13. In the first Instance, the learned Government Advocate contended that the learned Additional Sessions Judge having found that the case of rioting by Respondents 1 to 7 was true; that when the order was being promulgated and Madhu Babu was sowing Bid on the land, 6 or 7 of the accused came ahead armed with lathis and rushed at Madhu Babu that when Madhu Babu tried to escape across the Joro and the tank, 3 of them also got into the water, chased him and beat him; that Madhu Babu got injured on his head that the other part of the prosecution story also appeared quite probable; that the deceased thereafter crossed the river towards Pikrali side, took a bit of rest and then proceeded by the field lying to the northeast of that village; that the fatal assault took place on the fields of Pikrali; that there can be no doubt that it was the culmination of the incidents that proceed in the forenoon; and that the probability that all or some of the accused who took part in the assault on the anabadi were responsible for the fatal assault cannot be ruled out, he ought to have accepted the evidence of the eye witness to the abetment of murder and the murder, as also the documentary evidence. 14. The witnesses to the abetment of murder are P. Ws. 15, 16, 54 and 12 and the documentary evidence on which the learned Government Advocate relied In support of the case of abetment are Exts. 9 series and 26 series. Exts. 9 to 9b clearly show that Respondent Hadibandhu Sahu had been looking after the litigation of Bhusrang villagers and was also in charge of the dispute with the deceased Madhusudan Samantaray. These are letters written to Respondents Krishnamohan Sahu and others which were recovered from the house of Krishnamohan Sahu. Though the accused denied their genuineness, they were duly proved by P. Ws. 16 and 19 and P.W. 16 was not cross-examined, on that question. Ext. These are letters written to Respondents Krishnamohan Sahu and others which were recovered from the house of Krishnamohan Sahu. Though the accused denied their genuineness, they were duly proved by P. Ws. 16 and 19 and P.W. 16 was not cross-examined, on that question. Ext. 9 was written from Cuttack on 22-8-1953 to Krishnamohan and another informing them that the case of their village was posted to 24th and that Shri Pearimohan Samantaray the brother of the deceased had no mind to quit the land. Ext. 9a is dated 4-10-1953. It was written from Kendrapara to Danei Senapati, accused (sic) and others informing them that on reaching Kendrapara he learnt that the fines imposed in the jute theft case had to be deposited on 12-10-1953 without fail; that Madhusudan Samantaray had again filed a case u/s 144 Code of Criminal Procedure which had been sent to the police might issue; that it would not be possible to secure an injunction in such a short time by filing a plaint; and that it was not an easy thing for Madhusudan Samantaray to go and take possession. The letter concludes with the following observation which was strongly relied upon by the learned Government Advocate as constituting instigation, "On the one hand there was no money and on the other if they should choose to proceed legally it would mean much expense and procrastination, but if the unity in the village was main hinged then the thing would be settled without litigation and expense and nothing could be done in such matters, if they do not stand united." Ext. 9b was written the same day but from Cuttack and was addressed to the same persons including Krishnamohan Sahu and after referring to some litigation in the High Court, it is stated in the letter that to proceed legally mean t a good deal of expense and floury; that it was never their intention originally to proceed like that and they should reconsider and stick to the original decision which appeared to be the only convenient and easy way and it concludes by saying that it would be better to lead a peaceful Satyagraha on this issue and court jail and that he would be going there to lead it after the Dashara. Ext. Ext. 10, an affidavit, discloses that Hadibandhu Sahu was in charge of the jute theft case which was a case falsely Instituted against some of the accused and the account khatas Exts. 11 to 13 disclose that Hadibandhu Sahu was collecting money from the villagers for the said litigation. These accounts are mostly maintained by Krishnamohan Sahu. They also show that Krishnamohan Sahu and Garuda Das were also collecting money and that Krishnamohan Sahu and Garuda Das were in charge of spending that money. The learned Government Advocate contend; that these documents clearly show that Krishnamohan and Garuda Das were the principal persons working on behalf of the villagers and that Hadibandhu Sahu, though a man of a neighbouring village, was actively assisting them in their litigation and opposition to Madhusudan Samantaray. The learned Government Advocate also submitted that the learned Additional Sessions Judge came to the conclusion that the villagers of Bhusrang did not raise any objection at the time when the Patta was granted to Madhusudan Sarnantaray though according to Exts. 22 to 22d, objections were called for on the application of the deceased dated 1-6-1943 for the Patta and that Exts. 23 to 23b disclose that the villagers were aware of the fact of the grant of the Patta at the lime and that it was only at the (sic) of Hadibandhu in 1948 the villagers moved in the matter, as by then Hadibandhu failed to secure that Presidentship of the union as against Kapila Das (P. W. 12), for the reason that the deceased made an adverse report in a proceeding u/s 107 Code of Criminal Procedure against Hadibandhu. The station diary entries covered by Exts. 26 to 26c show that the deceased was being threatened with mischief by the Bharang people in regard to the possession of the Anabadi. The learned Government Advocate very vehemently contended that this documentary evidence strongly corroborates the oral evidence regarding the abetment of murder by Respondents 11 to 13 who were accused Nos. 16 to 18, namely, Hadibandhu Sahu, Krishnamohan Sahu and Garoda Das. 15. The oral evidence with regard to this aspect of the case is the evidence of P. Ws. 15, 16, 12 and 34.XXXX The learned Judge analyses the evidence on this point. 16. I may also mention that there are some stray incidents disposed to by P. Ws. 16 to 18, namely, Hadibandhu Sahu, Krishnamohan Sahu and Garoda Das. 15. The oral evidence with regard to this aspect of the case is the evidence of P. Ws. 15, 16, 12 and 34.XXXX The learned Judge analyses the evidence on this point. 16. I may also mention that there are some stray incidents disposed to by P. Ws. 16, 18, 19 and 26 which are sought to be relied upon by the prosecution 8 to probabilise the abetment of murder by Respondents 11 to 13. X.X His Lordship analyses the evidence. In my view, therefore, the learned Additional Sessions Judge was right In hold in that this evidence does not prove that Respondents 11 to 13 abetted either murder or doting. 17. Next the learned Government Advocate contended that there are direct eyewitnesses to the murder of the deceased by accused Nos. 1 to 6 and that the learned Additional Sessions Judge is unreasonable in not acting on their evidence, specially in view of the fact that he held he had no doubt that the deceased was driven out of the anabadi by accused Nos. 1 to 7 by force and that being so the other part of the prosecution story also appears quite probable: The eye-witnesses on whose evidence the learned Government Advocate relied as proving the case of murder are P. Ws. 36, 38 and 39. He also relied upon the evidence of P.W. 40 who is a witness to certain incidents after the occurrence and that of P.W. 37 who speaks of certain Incidents before the occurrence as also that of P.Ws. 12, 31 and 30. 18. As already stated, the fatal assault took place in the fields of Pikrali a distance of over 80 feet from a water channel running from west to east. At the place of the assault, large quantity of blood was found. There was a visible mark of dragging across the field to the water channel. His Lordship analyses the evidence. 19. On this evidence, the learned Government Advocate contends that the guilt of Respondents 1 to 6 for murder is made out. No doubt the evidence of these witnesses in chief examination does implicate Respondents 1 to 6, but the question to be considered is-can these witnesses be taken as credible and truthful witnesses or are they persons who are introduced into the case simply to support the prosecution story. No doubt the evidence of these witnesses in chief examination does implicate Respondents 1 to 6, but the question to be considered is-can these witnesses be taken as credible and truthful witnesses or are they persons who are introduced into the case simply to support the prosecution story. P. Ws. 31, 36, 38, 39 and 40 are alleged to be witnesses for both the occurrences. P. Ws. 36, 38 and 39 actually deposed to causing of death whereas P. Ws. 37 and 40 are witnesses to the events before and after the actual commission of murder implicating the accused persons. Under these circumstances, one would naturally expect that the Investigating officer would examine these witnesses in the first instance, specially P.W. 40 Bishnu Charan Naik whose name is expressly mentioned in the F.I.R. P.Ws. 36 and 38 were examined on 24-10.53. P.W. 39 is shown to have been examined on 22-10-53. But as I will show presently this cannot be accepted, as In my opinion, there is a fabrication of an important document In order to make it appear that he was examined on 22nd. P.W. 40 was the last witness to be examined in the investigation on 2-11-1953 about 10 days after the occurrence and the learned Additional Sessions Judge held that he was not at all present at the time of the first occurrence. P.W. 36 is an agnate of the deceased and he is Mulia of the deceased and does not mention the presence of Bishnu in his evidence in the committal court. For the first time before the Sessions Court 'this witness was made to say that only one blow was given to Madhu Babu at the anabadi though the other witnesses stated contra In order to fit in the postmortem certificate which described only one injury on the forehead. P.W. 40 was available for being examined by the Investigating Officer that very evening. During that day he accompanied the dead body to the hospital and though his name appeared in the F.I.R. is surprising how the Investigating Officer did not examine him till 2-11-53. The explanation submitted by the Investigating Officer for this delay is not at all satisfactory. P.W. 40 is the Gumasta of the deceased. The names of P. Ws. 36, 38 and 39 do not find a place in the F.I.R. P.Ws. 36 and 38 were not immediately examined. The explanation submitted by the Investigating Officer for this delay is not at all satisfactory. P.W. 40 is the Gumasta of the deceased. The names of P. Ws. 36, 38 and 39 do not find a place in the F.I.R. P.Ws. 36 and 38 were not immediately examined. P.W. 39 is shown to have been examined on 22nd itself, but there are reasons to believe that it was not so P.W. 39 is stated to have been examined on 22nd and despatched for medical examination as he had injury. It is absurd that he reached Marsaghai a place within six miles so late as 3 P. M. on 24th, the day on which he is said to have been medically examined. It is not on 24th but it is only on 26th that he was medically examined. The re-question for his medical examination is Ext. 19 with him was also sent Gadadhar Lenka (P. W. 14) with a similar requisition Ext. 20 for medical examination at Marshaghai. He is also stated to have reached the place on 24th at 3 P.M. Though the requisitions were written at one time, they were scribed by different persons. Ext. 19 the requisition of P.W. 39 appears to have been scribed by the Assistant Sub Inspector while Ext. 20 the re-question of P.W. 14 was scribed by the Investigating Officer. Ext. 19a is the opinion of the Medical Officer Shri Keshab Chandra Bhanj regarding the injury on P.W. 39. A look at this Injury certificate clearly shows that this document is tampered with. In the text, the sentence as originally written is the injury is about six days old at the time of the examination. "Six" Was struck out and "four" was written above. This injury certificate originally was dated 26-10-1953 under the signature of the Medical Officer presumably in his own handwriting, but the 6' of 26' is corrected to 4' and a look at the date clearly shows that 4' is written over 6'. The corrections also appear to be in the handwriting of the Medical Officer. It is unfortunate that either Public Prosecutor nor the learned Counsel appearing for the defence confronted the Medical Officer who was examined as P.W. 22 with these alterations. This is a very serious matter, specially in sessions trials in which the accused are on trial for their lives. It is unfortunate that either Public Prosecutor nor the learned Counsel appearing for the defence confronted the Medical Officer who was examined as P.W. 22 with these alterations. This is a very serious matter, specially in sessions trials in which the accused are on trial for their lives. These alterations are deliberately brought about to probabilities the immediate examination of P.W. 39 who is put forward as a direct eye-witness to the murder. Ext. 20 appears to be in the handwriting of the Investigating Officer and from the original it appears that he dated this requisition in the first instance as 21-10-1953. The 1' of 21' appears to have been altered into 2'. 2' is overwritten on 1' and it is the case for the prosecution that both these requisitions were sent on the same day, that is, on 22-10-53. In order to explain the delay of the examination the prosecution wants to make out that these persons could not be examined on 2nd as the Medical Officer of Marshaghai was absent. Ext. 20 shows that consequently on 23-10-1953 the requisition was endorsed in favour of the Madical Officer, Patkura, but he was not examined by the said Medical Officer. Again on 24th there is an endorsement on him to examine the injured person. There is nothing to show on these documents that the requisitions were actually taken to the Medical Officers concerned. There is no endorsement to that effect on either of these two documents by anybody connected with the hospital or the dispensary. The injury report of the Medical Officer on Ext. 20 is dated 24-10-53 and in the text of the certificate also It is stated that the Injury is about four day old. But the prosecution case definitely is that both P.W. 39 and P.W. 14 were sent for medical examination the same day, that is, on 22-10-1953. Taking the evidence into consideration, there is no manner of doubt whatever that P.W. 39 was examined on 26-10-1953 by the Medical Officer and in order to make out that he was actually examined by the Investigating Officer on 22-10-1953, the Investigating Officer has come forward with this false story of Medical Officers being absent on 22nd and 23rd and also must have connived or investigated the Medical Officer to alter the date 26-10-1953 in Ext. 19a to 24-10-1953. 19a to 24-10-1953. The Medical Officer of Marshaghai (P.W. 22) who gave the Injury certificates deposed that he complied with both the requisitions on 24-10-1953 at 3 P.M. The Medical Officer also stated that this injury on P.W. 39 may be self-inflicted and the injury itself is simply a bruise. It is regrettable that the Medical Officer had obliged the prosecution in tampering with the injury certificate in supporting the case that P.W. 39 was present and sustained an injury in the melee. The presence of P.Ws. 36 and 38 also at the scene of the fatal occurrence appears to be clearly doubtful. In order to probabilise their presence the prosecution had to take recourse to the evidence of P.W. 10. He falsely asserted that he enquired from Bishnu Charan Naik (P. W. 40) as to how the deceased came to be hurt on the anabadi land. He was examined on 23-10-1953 in the first instance, but he was once again approached by the Investigating Officer for a statement on 29-10.1953, though the witness denies t same. The Investigating Officer explained that he expected some more information from him. The witness with Achhuta Banda purchased a piece of land belonging to the deceased. The learned Additional Sessions Judge even doubted whether he was in charge of the ferry as he could not remember whether it was a day of Hat at Marshaghi. His vision also Is defective. 20. I cannot understand how the entire once party, the constable the Daffadar and the choukidars who were accompanying the deceased after the first occurrence managed to be absent at the time of the fatal occurrence. To explain away their absence, they put forward the case that the deceased was unable to walk and they were all engaged in securing a Sika and Beta. The learned Additional Sessions Judge doubts if the deceased required any assistance at all for carrying him. The injury he had sustained on the forehead is not such as to incapacitate him from walking. According to the evidence of P. Ws. 20 and 39, the deceased could walk a distance of about 500 cubits towards the river without any effort. The evidence in regard to Bishnu being sent for fetching a Bhara Is conflicting and the learned Additional Sessions Judge did not believe It. According to the evidence of P. Ws. 20 and 39, the deceased could walk a distance of about 500 cubits towards the river without any effort. The evidence in regard to Bishnu being sent for fetching a Bhara Is conflicting and the learned Additional Sessions Judge did not believe It. Though the name of Bishnu appears in the F.I.R. and It is stated therein that because of the delay by Bishnu In fetching the Bhara the deceased wanted to proceed by foot to the Thana, it cannot have much value Inasmuch as the F.I.R itself seems to have been made not at Patkura Police Station Immediately after the information was lodged, but sometime or some days subsequently in the village itself. 21. Ext. 8 is the F.I.R. The Investigating Officer admits that he did not record the evidence of the Informant at the Police Station and did not take a copy or substance of the F.I.R to the spot. He admits that the only constable available at the Police Station was constable No. 368 who accompanied him to the spot. But when he was confronted with the fact that he could not have accompanied him as the F.I.R. was sent through this very constable, he resiled from the statement. He even admitted that what all he had noted in this connection in his case diary was not a correct statement of facts. The case diary mentions that the Assistant Sub Inspector accompanied him, but his deposition Is that he left the despatch of the F.I.R. to the Assistant Sub Inspector at the Police Station and then left for the spot on a cycle, though on the day previous he had a fall from his door steps and had sustained a sprain in his leg. One of the persons who accompanied the Informant to the Police Station stated that the Sub Inspector came to the scene of occurrence by crossing the river on a boat. Even though the Investigating Officer stated that he asked the Assistant Sub Inspector to send the F.I.R. it is clear from the station diary that the Assistant Sub Inspector was not present at the Station. Even though the Investigating Officer stated that he asked the Assistant Sub Inspector to send the F.I.R. it is clear from the station diary that the Assistant Sub Inspector was not present at the Station. Constable No. 775 is shown to have been put in charge when the Investigating Officer left and curiously enough the command certificate in dispatching the F.I.R is written by the Investigating Officer himself though an Assistant Sub Inspector could issue a contemned certificate, and the hour of despatch of the F.I.R. was put as 1 P.M. on 21-10-1953. It is regrettable that there was no cross-examinant on this point. The report of the Court Sub Inspector discloses that it was received by him on 22-10-1953 at 9 P. M. These facts could not be confronted to the Investigating Officer as according to the learned Additional sessions Judge they were subsequently discovered by him. Some attempt was made to probe into this mystery by examining the relevant general register and also in trying to understand the procedure obtaining, in various courts in regard to Its maintenance when registering an F.I.R. received out of court hours. Court witness No. 2 who was examined during the course of arguments stated that the correct procedure is that the Court Sub Inspector is to give the dale of the actual receipt in the register and not the date following when it is put up for Sub Divisional Magistrate?s Initials. The receipt of the F.I.R. was noted by the Court Sub Inspector as at 9 P.M. and the command certificate of the constable who took the F.I.R. disclosed the time of receipt as at 6 P.M. Court witness No. 2 also deposed that even if the F.I.R. is received beyond court hours and it is put up for Sub Divisional Magistrate?s signature the next day, the date given by the Sub Divisional Magistrate is the date of receipt by the Court Sub Inspector which is entered in the general register and it is not the practice for the Sub Divisional Magistrate to give the actual time and date when his Initial is being taken. This also appears to me to be a very curious practice. This also appears to me to be a very curious practice. The practice sets at naught the mandatory provisions of the Code of Criminal Procedure It is the duty of the Officer In charge of a Police Station to send a copy of the F.I.R. to the Magistrate having jurisdiction forthwith and then proceed to Investigate. The object under-lying this preemptory rule is that the Magistrate could have Information and should be in the know of how the investigation is proceeding from day to day. I am also surprised at the practice of the Sob Divisional Magistrate not putting the date on which the F.I.R. was submitted to him, but putting the date on which it was actually received by the Court Sub Inspector. This, if I may say so, is a matter concerning statutory documents and is nothing but antedating a document required to be maintained according to law. It is hoped that this practice would be put an end to at the earliest moment and the Sub Divisional Magistrates Insist upon the submission of the F.I.R. to them the moment they are received and put the actual date of the said receipt and not the date on which it was received by the Court Sub Inspector. The Code of Criminal Procedure contemplates that the Sub Divisional Magistrate should bring his mind to bear on the F.I.R. and the investigation going on In (sic) cases and the concerned Sub Divisional Magistrates should note that this Is not a mere formality but a serious obligation imposed upon them by the statute. Otherwise it would lead to much tampering of these important documents by the police officers In charge of the investigation as has actually happened in this case. Further it may be noted that the learned Additional Sessions Judge made efforts to examine the Sub Divisional Magistrate who received the F.I.R. Summons was sent once. Afterwards again on 14-7-1955 the Public Prosecutor petitioned for resummoning Mr. S.C. Das, Sub Divisional Magistrate who was then at Sambal pur. The petition was sent to the committing Magistrate for immediate action. A telegram was sent by the Collector that the Sub Divisional Magistrate was in camp. The matter ended there. The Sub Divisional Magistrate ought to have attended the Court and it is regrettable that he did not though summoned twice. The petition was sent to the committing Magistrate for immediate action. A telegram was sent by the Collector that the Sub Divisional Magistrate was in camp. The matter ended there. The Sub Divisional Magistrate ought to have attended the Court and it is regrettable that he did not though summoned twice. It is also regrettable that the learned Additional Sessions Judge did not pursue the matter further. As he opined that the examination of the Sub Divisional Magistrate was necessary and on the failure of the Sub Divisional Magistrate to attend, he ought to have taken coercive process sanctioned by law to secure his attendance. I am constrained to say that the Sub Divisional Magistrate failed in his duty to comply with the summons to attend a Sessions Court. The Collector On receiving the telegram from Sessions Court ought to have asked the S.D.M. to proceed to Cuttack forthwith. 22. Further if the F.I.R. was actually drawn up at the Police Station, there was no excuse for P.W. 9 the informant to forget the fact of his giving thumb impression thereon. He stated that he merely conveyed the information of the murder of the deceased on the Pikrali fields after the anabadi incident. He categorically denies to have named Danei Senapati accused No. 13 or that his son was the first to attack the deceased. He even alleges that he does not know them and denies to have reported that Bishnu Naik 'prabhruti' saw the occurrence and the Investigating Officer dose not seem to have ascertained who those others were. There is some force in the suggestion of the defence consequently that the F.I.R. was drawn up actually in the village and not at the Police Station and Bishnu Naik?s name was mentioned therein simply to speak to the prosecution case as developed in the village and to rope in as many persons as possible. Even the drawing up of the inquest report is not free from suspicion. The learned Additional Sessions Judge opined that some columns were filled up at one time and the others afterwards. The learned Government Advocate, after communicating with the Public Prosecutor and Police getting written replies submitted to us that he was Instructed to say that the alterations in the Injury certificate Ext. 19a and the command certificate Ext. 2 were made in the Sessions Court when the record was there. The learned Government Advocate, after communicating with the Public Prosecutor and Police getting written replies submitted to us that he was Instructed to say that the alterations in the Injury certificate Ext. 19a and the command certificate Ext. 2 were made in the Sessions Court when the record was there. This is a preposterous suggestion. If it were so it was the duty of the Public Prosecutor and the Police to have drawn the attention of the trial Judge which was not done though the trail lasted for 51 days. It is regrettable that before us such an unfounded suggestion was made for the first time by the Public Prosecutor through the Government Advocate. 23. In this state of the evidence It is not possible to accept the evidence of the alleged eye-witnesses to the murder or the evidence of the witnesses who speak to the Incidents before and after the fatal occurrence. The learned Additional Sessions Judge is, therefore, in my opinion, right in acquitting Respondents 1 to 6 of the charge of murder. 24. Criminal Appeal filed by accused Nos. 1 to 7 is with regard to the conviction under Sections 148 and 147 I.P.C. respectively. About 14 witnesses were examined as eye-witnesses to what took place at the anabadi, that is, to the case of rioting and obstruction to the constable. The learned Additional Sessions Judge after discussing the evidence of all the eye-witnesses came to the conclusion that he ultimately relied upon the evidence of P. Ws. 1 to 3 only with regard to the case of rioting. P.W. 2 the Daffadar knew the accused persons from before and he spoke to the case of rioting. The learned Additional Sessions Judge accepted his evidence though he holds that he had some animus against the accused and treating the evidence of P.W. 1 and P.W. 8 as corroborative evidence of what is deposed to by P.W. 2, convicts Respondents 1 to 7 of rioting. 25. Mr. K.P. Acharya, the learned Counsel appearing for these Appellants contends that the evidence of these three witnesses also should not have been accepted by the learned Additional Sessions Judge. 25. Mr. K.P. Acharya, the learned Counsel appearing for these Appellants contends that the evidence of these three witnesses also should not have been accepted by the learned Additional Sessions Judge. P.W. 1 is the constable who was entrusted with the duty of promulgating the order u/s 144 Code of Criminal Procedure He went to the village on 21-10-1953 In obedience to the command certificate issued to him and promulgated the order when afterwards the rioting took place. He accompanied the deceased after he was injured at the anabadi and as already shown above manner to be absent at the Parkula school and arrive at the scene of the second occurrence only after the deceased was done to death in the fields near Pikrali. P. Ws. 2 and S also managed to be absent at the same time though they also stated that they accompanied the deceased. They reached the place of murder and came to know of the deceased having been murdered. The F.I.R. was lodged on the very same day and the Investigating Officer reached the village on that day. But it is curious to note, and I cannot understand the delay why P.W. 1 the constable who was entrusted with the promulgation of the order u/s 144 Code of Criminal Procedure and in consequence of which the rioting and the murder took place never returned the command certificate the very day stating the execution of the order, the obstruction which he met with in promulgating the order or the consequences which happened after the promulgation of the order. One would naturally expect that this report should have been submitted by P.W. 1 the very day to the Officer in charge of the Police Station but it was submitted more than 10 days afterwards. P.W. 1 explained the delay by saying that he could not write the report as he had to think it over and them betrays the troth. He must have been made deliberately to withhold his reports tilt the investigation proceeded to some extent so that his report might contain the developments introduced in consequence of the investigation. The command certificate Ext. 2 and the evidence of the constable and the Investigation Officer show that there is something suspicious and fishy in this affair. He must have been made deliberately to withhold his reports tilt the investigation proceeded to some extent so that his report might contain the developments introduced in consequence of the investigation. The command certificate Ext. 2 and the evidence of the constable and the Investigation Officer show that there is something suspicious and fishy in this affair. Column 8 of the command certificate discloses that it was returned to the Assistant Sub-Inspector by the constable at 2-20 P. M. on 31-10-1958 but the report of return on the back was written subsequently on 3rd and the document clearly shows that 3' was subsequently changed to 5'. There was also an attempt to change the date 31-10-1953 in column 8 to 3-11-1953, but it could not be successfully achieved. This attempt evidently must have been made to correspond with the date given by the constable in his first report. The constable was made to give a second report and the evidence of P.W. 1 regarding as to why the second report was given is conflicting with that of the Investigating Officer. The first report bears the initials of the Assistant Sub Inspector. It is dated 3-11-1953 with an endorsement 'seen' and over this endorsement the Sub Inspector endorsed a direction to the Assistant Sub Inspector under the date 5-11-1953 requiring a detailed report from the constable and it is to be assumed that the second report Ext. 2b was given by the constable on that direction. It is stilt more surprising to find that the date originally ?given in the second report was also 3-11-1953 which was later attempted to be changed to 5-11-1953. This fact was not mentioned in the case diary. The Investigating Officer ought to have insisted upon P.W. 1 to give his report on the very day when he reached the village. Even before the receipt of this report from P.W. 1 who was entrusted to promulgate the order issued by the Sub Divisional Magistrate, the Investigating Officer by Ext. 38 sought permission to take cognisance of the case u/s 188 I.P.C. on 26th October 1953. Even before the receipt of this report from P.W. 1 who was entrusted to promulgate the order issued by the Sub Divisional Magistrate, the Investigating Officer by Ext. 38 sought permission to take cognisance of the case u/s 188 I.P.C. on 26th October 1953. This report does not show any indication of its having been received by the Divisional Inspector to the Sub Divisional Magistrate was dated 15-11-1953 and the Sub Divisional Magistrate's order to put up of draft was dated 21-11-1953 and the order of the Sub Divisional Magistrate was issued on 3-12-1953 and was received by the Investigating Officer on 12-12-1953. The case diary also does not indicate, as observed by the learned Additional Sessions Judge, the fact of Ext. 38 as having been sent from the spot on 26-10-1953. On these facts, it appears to me that the conduct of the Investigating Officer relating to the command certificate also is strongly to be condemned. There is a deliberate attempt by the Investigating Officer to try to get a report from the constable to fit in with the investigation which he was making. Had the constable made his report on the very day stating what actually happened on that day, It would have been of very great use to the prosecution in bringing the offenders to book. But unfortunately on account of this deliberate tampering of documents by the officers concerned with the investigation, the real culprits escaped punishment and cannot be convicted. The investigation in this case, in my opinion, Is responsible for the failure to convict the real guilty persons. The object of the law is clearly frustrated by the officers who are expected to maintain the law. 26. Under these circumstances, I cannot treat the evidence of P.W. 1 as corroborative evidence of what is deposed to by P.W. 2. The evidence of P.W. 1, though the learned Additional Sessions Judge accepted the same and charaterised it as disinterested evidence, in my view cannot be relied upon inasmuch as he never gave his report Immediately after the occurrence or aught I think his evidence might have been also dictated to by the Investigating Officer. P.W. 3 is one of the choukidars who accompanied the deceased from the village and was present at the first occurrence. He did not mention before the police the presence of Bishnu and Mandardhar. P.W. 3 is one of the choukidars who accompanied the deceased from the village and was present at the first occurrence. He did not mention before the police the presence of Bishnu and Mandardhar. He did not state that Basu pushed the deceased and sat on him. The evidence of P.W. 2 the Daffadar is attacked on the ground that he bore a grudge against the Bhusrang people, most of whom were his tenants, he being the tenure-holder and with whom he had a hitch in regard to the (sic) celebration of his Thakur. He adnits to have stopped the Melan held at Bhusrang. 27. The last question which is connected with all these three aspects is the question relating to the identification of the accused. P.W. 1 identified accused Nos. 1 to 7 besides four others. In the committing Court he identified besides accused Nos. 1 to 7 five others, but in the Sessions Court he Identified only accused Nos. 1 to 7, accused Nos. 1 to 6 as forming the first batch aged accused No. 7 as forming the second batch. P.W. S identified accused Nos. 2, 5 and 6. In the Sessions Court he named accused Nos. 1 and 2 but could not identify accused No. 1 and named and identified accused Nos. 2 and 5 only. P.W. 37 stated that accused Nos. 1 and 2 dealt with the body of the deceased at the Mahara and Knew these two accused for 8 years. But he could not identify them in the lower Court. He was not taken to the Identification Parade. He identified these two accused persons in the Sessions Court. Instead of leaving the evidence as it is to be taken into consideration by the trial Judge, the leaned Public Prosecutor who conducted the prosecution before him appears to have made this witness explain that he was not given a fair opportunity by the committing Magistrate and that the committing Magistrate being in hurry called him back before he could make his way to the accused persons who are all Juggled up in a corner and also having their heads with head dress. Even if his explanation can be accepted, it cannot be imagined how a person who knew, these two persons for 8 years failed to identify them in the committing Magistrate's court. Even if his explanation can be accepted, it cannot be imagined how a person who knew, these two persons for 8 years failed to identify them in the committing Magistrate's court. But what Is surprising is that the learned Public Prosecutor, with a view to convince the Sessions Judge about the genuineness of the explanation prayed for local Inspection of the committal court which the Sessions Judge did in the presence of the assessors. After the said inspection, he came to the conclusion that the accused had sufficient accommodation and It could not be said that they were huddled up in a corner and that even the Sessions court hall could not afford 'better accommodation, because the committal court has was much better ventilated and illuminated as it was open on three sides and therefore did not place any value In the plea taken for the witness' Inability to identify accused Nos. 1 and 2 In the committal court. It is surprising and I am constrained to note with regret that the learned Public Prosecutor who conducted the Case In the Sessions Court should have attempted to explain away the evidence of this witness in the way he did though he was the Public Prosecutor w also conducted the proceedings before the committing Magistrate. (sic) the Magistrate caned back the witness before the latter could Identify the accused if the committal court shall 13 so small as not to make the witness identify the accused, it was the duty of the Public Prosecutor to ask the Magistrate as Public Prosecutor of the district to take the accused out of the court into the open and get the witness identify the accused, specially In a case of murder. He never did anything of that sort. He never lodged any protest before the Magistrate for having huddled the accused or hastened the witness but he filed a petition before the Sessions Court for local inspection of the committal court hall and tried to explain away the failure of this witness to identify accused Nos. 1 and 2. 28. The various seizure lists including the seizure list of the Katari M. Order VI, according to the learned Additional Sessions Judge, appear to have been written out at the same time. They had not been sent to Court till 1-1-1954. 1 and 2. 28. The various seizure lists including the seizure list of the Katari M. Order VI, according to the learned Additional Sessions Judge, appear to have been written out at the same time. They had not been sent to Court till 1-1-1954. Section 16, Clause (5, of the Code of Criminal Procedure says: Copies of any record made under Sub-section (1) or Sub-section (2) shall forthwith be sent to the nearest Magistrate empowered to take cognizance of the offence and the owner or occupier of the place searched shall on application be furnished with a copy of the same by the Magistrate. Such being the mandatory provision of law and taking into consideration the gravity of seizer of one?s property and incriminating weapons I cannot understand how the seizure lists were not sent forthwith to the Magistrate concerned but were sent only about 1-1-1954. The learned Government Advocate wanted merely on Rule (sic) of the Orissa Police Manual 1940 to justify the action. Rule says: The original case diaries, lists of property stolen, lists of property found on parties arrested, reports on previous convictions, the bait-bonds and the recognizance bonds executed u/s 170 Code of Criminal Procedure shall be attached to the charge sheet form. This rule even if It covers the sending of seizure lists is, in my opinion, contrary to the Code of Criminal Procedure The seizure lists ought to have been sent immediately they were prepared. That this is a wholesome rule cannot be denied. The legislature wanted that there should be no scope for people to think that the seizure list was subsequently brought about or the original seizure list substituted. It is regrettable that this provision was violated by the Investigating Officer. I may also mention that the same observation applies to the submission of the inquest report also. The inquest report should be submitted at once. The learned Government Advocate wanted to rely upon Section 174 Code of Criminal Procedure and Rule 199 of the Police Manual to justify the sending of the inquest report along with the charge sheet. Section 174 Code of Criminal Procedure relates to powers and duties of the (sic) to enquire and report on suicide etc. The learned Government Advocate wanted to rely upon Section 174 Code of Criminal Procedure and Rule 199 of the Police Manual to justify the sending of the inquest report along with the charge sheet. Section 174 Code of Criminal Procedure relates to powers and duties of the (sic) to enquire and report on suicide etc. and Clause (2) says: The report shall be signed by such police officer and other persons, "or by so many of them as concur therein, and shall be forthwith forwarded to the District Magistrate or the Sub Divisional Magistrate. Consequently Section 174 Code of Criminal Procedure requires the inquest report to be submitted forthwith. Clause (b) of Section 199 of the Police Manual supports to some extent the learned Government Advocate. It says, if a final report shall be submitted in P.M. Form No. 37-A on the termination of the investigation into the unnatural death. An inquest in report P.M. Form No. 38 signed by the police officer and two respectable persons u/s 174 Code of Criminal Procedure shall be attached to the final report. In my opinion, this Clause (b) of Rule 199 of the Orissa Police Manual is also contrary to the mandatory directions in the Code of Criminal Procedure and it is the duty of the Investigating Officer to submit the inquest report forthwith to the Magistrate. 29. It is very regrettable that in this case there are many regularities in, and violations of, the mandatory provisions of law during the investigation from the stage of the first information report up to the submission of the charge-sheet. Justice should not only be done, but should appear to have been done. It cannot be said that justice is done if in a case where there are so many irregularities the accused are convicted. Forms of procedure should be strictly, adhered to by the Investigating Officers and the Magistrates concerned with the Investigation. They should try to follow the spirit and letter of the law and not at as it suits their convenience. 30. For the reasons stated above, I am convinced that there are compelling reasons as to why the judgment of acquittal passed by the learned Additional Sessions Judge, after a careful consideration and discussion of the, entire evidence in the case, has come to a reasonable conclusion that he cannot held those accused persons guilty of murder and abetment of murder. For the reasons stated above, I am convinced that there are compelling reasons as to why the judgment of acquittal passed by the learned Additional Sessions Judge, after a careful consideration and discussion of the, entire evidence in the case, has come to a reasonable conclusion that he cannot held those accused persons guilty of murder and abetment of murder. The acquittal of Respondents 1 to 6 and Respondents 11 to 18 was therefore confirmed. As the learned Government Advocate did not press his case against the other co-Respondents, their acquittals also were confirmed. 31. In the Criminal Appeal filed by Respondents 1 to 6 and another accused, for the reasons stated above, their convictions cannot be upheld. Their convictions and sentences under Sections 148 and 147 I.P.C. were therefore set aside and they were acquitted. 32. For all these reasons, we pronounced our order dismissing the government Appeal and allowing the Criminal Appeal. 33. The learned Additional Sessions Judge has rightly passed certain remarks on the investigation In this case and the way in which the prosecution before him was conducted. I fully agree with all the remarks he made. This case bristles with violations of law during investigation. The officer concerned with the investigation, as it appears from the evidence, has even gone to the extent of altering and fabricating documents to be made under the statute and has taken an undue zeal to rope in as many persons as possible as accused persons and see that they are punished. As far as the alterations in the command certificate to promulgate the order u/s 144 Code of Criminal Procedure and the false entries made in the F.I.R. and other documents as also the alterations made in the injury certificates Ext. 19a, I would have passed an order calling upon the Investigating Officer and the Medical Officer concerned to show cause why they should not be prosecuted. But in view of the fact that certain facts concerning the same were not put to the witnesses concerned and an opportunity given to them to explain, I refrain from doing so. We wanted to examine before us the persons concerned and give them an opportunity to explain. But unfortunately on account of some contingencies the learned Government Advocate stated that they could not be produced during the week in which we were closing the hearing of the appeal. We wanted to examine before us the persons concerned and give them an opportunity to explain. But unfortunately on account of some contingencies the learned Government Advocate stated that they could not be produced during the week in which we were closing the hearing of the appeal. I think this is a fit case in which these charges appearing prima facie against the Investigating Officer and the Medical Officer should be enquired into in order that the people may not lose faith in the administration of criminal Justice in this State. I, therefore direct that the Additional Sessions Judge of Cuttack will take further action in the matter by issuing notice to the investigating Officer Shri Gopal Chandra Roy and the Medical Officer Shri Keshab Chandra BhanJa to show Cause why they should not be prosecuted and enquire into this and pass such orders as he thinks proper. 34. It must also be noted that the complaint made before us by the learned Counsel on both sides that the learned Additional Sessions Judge was too often interfering with the examination and cross examination of witnesses by examining the witnesses himself is perfectly justified. The counsel calling witness must be allowed to examine the witness in the way in which he wants and the cross-examining counsel must be allowed to do so as he prefers. No doubt, it is true that the Court can put any question to the witness at any stage of the examination, but this power should not be carried to the extent of the Court itself examining the witness so often as was done in this Case. Mohapatra, J. 35. I agree. 36. G. A. 2/56 dismissed & Crl. A. 105/56 allowed. Final Result : Allowed