JUDGMENT : Das, J. - Criminal appeal No. 88 of 1958 was filed by 15 Appellants who were convicted u/s 147 of the Indian Penal Code, whereas Criminal Appeal No. 98 of 1958 was filed by Dayanidhi Goudo against his conviction under the same section. Government Appeal No. 13 of 1958 was filed by the State of Orissa against the acquittal of accused Nos. 1 to 11 of the charge u/s 395/149 and of accused Nos. 12 to 31 of the charge u/s 395 as also of 16 other accused persons who were acquitted, of the charge u/s 147 of the Indian Penal Code. All the three appeals were hard together and are governed by this common judgment. 2. I would first take up the appeals against conviction, that is, Criminal Appeal No. 88 of 1951 and Criminal Appeal No. 98 of 1958. 3. The facts leading up to the prosecution shortly stated are these: Since about the year 1955, there was a dispute going on between the complainant, Shyamsundar Das (P.W. 1) and his father Bipra Charan Das (P.W. 8) on the one hand and certain accused persons who were residents of mouza. Baunsia regarding the possession of certain lands therein. Prosecution alleged that in the year 1955 some of the accused persons had filed cases under the Orissa Tenants Relief Act against P.Ws. 1 and 8 on the ground that though they were the bhag tenants for certain lands under them, they were trying to dispossess them by inducting certain other tenants thereon. Ever since then a number of criminal cases were filed between the parties and it is admitted that by the date of occurrence, 22 criminal cases were pending disposal. 4. The application under the Orissa Tenants Relief Act; filed by the tenants was dismissed by all the courts below and an application under Article 226 and Article 227 of the Constitution of India was also pending before the High Court on the date of occurrence. It was further alleged that accused Banamali Moharana was, the local leader of the Praja Socialist Party and a meeting to incite the tenants was held in village Baunsia on the night previous to the date of occurrence, that is, on August 10, 1957. It was decided there in to put pressure on p.w. 1 by assaulting him and looting his property. It was decided there in to put pressure on p.w. 1 by assaulting him and looting his property. Accordingly, at about 7-30 A.M. on the following morning (11-8-1957) all the 31 accused persons along with many others entered inside the house of P.W. 1 while he was talking with Khetra Pradhn, Ananta Charan Patnaik and Dinabandhu Patnaik, P.Ws. 2, 3 and 4 respectively. When P.W. 1 saw this crowd coming armed with lathis and Katuas, he with the help of P.Ws. 2, 3 and 4 tried to close the front door of his house but was unsuccessful. The miscreants thus entered inside the house when P.Ws. 1, 2 and 3 finding no other way to go out entered the latrine situated in the courtyard where all the accused persons had gathered by then. The prosecution case then is that some of the persons assaulted P.Ws. 1, 2 and 3 by poking their lathis through the doorway and the window of the latrine causing a number of injuries on their persons. Simultaneously with the assault, some other accused persons broke open the lock of the granary and carried away the paddy in baskets and bags. P.W. all along was entreating the accused persons not to assault P.Ws. 1, 2 and 3, whereupon accused Banamali Moharana and others said that unless P.W. 1 execute a document giving up his rights in the lands under dispute, he would be killed. Accordingly, P.W. 1 was compelled to write out a document as required by them and the said document was alleged to have been taken away by the accused persons. Accused Narayan Das snatched away the wrist watch of P.W. 1 and wearing cloth which was stained with blood. After the miscreants had left the house, P.W. 1, 2, 3 and 4 closed the doors of the house and remained inside till about 5 in the evening when the father of p.w. 1, that is, P.W. 8 came there on receipt of information from his Halia, Raju Nahak (P.W. 7). In the meantime, the group Karji, Gokulananda Patnaik (P.W. 16) had given certain information at the Police Station at Purusottampur. So also, one Harihar Das, a cousin of P.W. 1 had sent information to the Police. An Assistant Sub-Inspector of Police (P.W. 20) with two constables arrived at village Baunsia at about 8 P.M. P.W. 1 handed over the first information report (Ext. So also, one Harihar Das, a cousin of P.W. 1 had sent information to the Police. An Assistant Sub-Inspector of Police (P.W. 20) with two constables arrived at village Baunsia at about 8 P.M. P.W. 1 handed over the first information report (Ext. 1) to P.W. 20. It is alleged that as P.Ws. 1 to 4 were trifid, P.W. 20 did not record their statements but started investigation by making certain seizures. On the following morning (12-8-1957) the Circle Inspector of Police (P.W. 21) arrived there at about 10 A.M. and took the investigation. He examined the witnesses and arranged for a photograph of the disturbed widow, the photographer having arrived according to previous arrangement. A Doctor of Purusottampur dispensary also arrived in the morning and examined the injuries on the persons of P.Ws. 1 to 4 on the requisition of the Police Officer. Thus, after the completion of the investigation a charge-sheet was filed against the accused, persons: all the 31 accused persons were charge-sheeted for the offences u/s 147 and 395 of the Indian Penal Code. The accused persons thus sent up for trial were: 1. Banamali Moharana 2. Sashi Bhusan Jena. 3. Biswanath Das. 4. Bhaigo Gouda 5. Hari Pollai. 6. Natabar Pollai. 7. Arjun Goudo. 8. Dayanidhi Goudo. 9. Banchhanidhi Das. 10. Uday Goudo. 11. Arkhita Gouda. 12. Narayan Das. 13. Braja Sahu. 14. Chait an Das. 15. Bhima Das. 16. Mahantara Goudo. 17. Govindci Goudo. 18. Purna Chandra Das. 19. Bhubani Gouda. 20. Raghunath Behera 21. Hina Behera. 22. Khetro Goudo. 23. Musa Goudo. 24. Gadei Goudo. 25. Srinivas Jena. 26. Gouri Sankar Samanta. 27. Banehha Sahu. 28. Dukha Goudo. 29. Sridhar Bebera. 30. Artabandhu Behera, and: 31. Igni Behera. 5. Accused Nos. 1 to 11 were further charged u/s 120-B of the Indian Penal Code. The Committing Magistrate committed the accused persons to the court of sessions of an the charges as mentioned above. But at the time of the trial, the public prosecutor filed a petition to amend the charges by committing the charge u/s 120-B I.P.C, and framing charges as stated above. Accordingly, at the trial 31 accused persons stood charged for the offences u/s 147 of the Indian Penal Code. Accused Nos. 12 to 31 stood charged for the same offence read with Section 149 of the Indian Penal Code. 6. Accordingly, at the trial 31 accused persons stood charged for the offences u/s 147 of the Indian Penal Code. Accused Nos. 12 to 31 stood charged for the same offence read with Section 149 of the Indian Penal Code. 6. All the accused persons pleaded not guilty to the charges against them. Their defence was that the occurrence as alleged by the prosecution was not true and had been concocted by P.Ws. 1 and 8 with the help of their own servants and supporters to harass the accused persons which they were doing since a long time with a view to oust them from their long possession as bhag tenants. Accused Banamali Moharana stated that as an Ex-M.L.A. he had agitated both in the floor of the Assembly as also outside against the oppressions of the Baunsia tenants by the family of P.W. 1 and had taken the lead in various agitations by these tenants against such oppressions. Accordingly, P.Ws. 1 and 8 wanted to wipe out the Praja Socialist Party from that area and with that end in view he and other members of his party were added as accused persons. He further stated that he was not present at Baunsia either on the 10th or 11th August, 1957 and had been falsely implicated. The defence of accused Nos. 2, 25 and 26 is that they were members of the Praja Socialist Party and had worked against Harihar Das, a cousin of P.W. 1 during the last elections and they had their sympathies with the tenants of Baunsia in their legitimate agitation against the family of P.W. 1. It is for this reason that they have been falsely implicated in this case. The rest of the accused persons were inhabitants of village Baunsia and 16 of them had claimed to be the bhag tenants under P.Ws. 1 and 8. Due to their dispute with P.Ws. 1 and 8 they have been falsely implicated. The defence of accused No. 3 Biswanath Das and his relations was that they were the sympathisers of the bhag tenants mentioned above. Accused No. 3 being a rich man of the locality, P.W. 1 first sought his help to oust these bhag tenants but he had refused the same. On the contrary, lie and his relations had been supporting the tenants, as a result of which, they had been falsely implicated. Accused No. 3 being a rich man of the locality, P.W. 1 first sought his help to oust these bhag tenants but he had refused the same. On the contrary, lie and his relations had been supporting the tenants, as a result of which, they had been falsely implicated. There were certain other relations of the bhag tenants who also were implicated in this case. Their defence was that because they were relations of the bhag tenants P.Ws. 1 and 8 had falsely implicated them too. 7. The learned Additional Sessions Judge on a consideration of the evidence on record acquitted accused Nos. 1, 2, 25, 26, 10, 14, 15, 21, 22, 27, 31, 3,12,29 and 30 of the charge u/s 147 of the Indian Penal Code. He had also acquitted Nos. 12 to 31 of the charge u/s 395 and accused Nos. 1 to 11 of the charge u/s 395/149 of the Indian Penal Code. He, however, convicted the 16 bhag tenants, that is, accused Nos. 4 to 9, 11, 13, 16 to 20, 23, 24 and 28 u/s 147 of the Indian Penal Code and sentenced each of them to undergo rigorous imprisonment for one year. As I have stated earlier, these 16 convicted persons filed the aforesaid two criminal appeals against their conviction u/s 147 of the Indian Penal Code, whereas the State of Orissa had filed the Government Appeal against the acquittals as mentioned above. 8. Mr. Srinivas Misra, learned Counsel for the Appellants contended that in view of the admitted enmity between the complainant and the Appellants, the learned Additional Sessions Judge should not have convicted the Appellants on the evidence of witnesses most of whom are admittedly interested in P.W. 1. His further contention was that the learned Additional Sessions Judge having disbelieved the evidence of witnesses on the main part of the story, he should not have convicted the Appellants on the residue of their evidence. In short, his whole argument was that on the omnibus evidence in general terms to the effect that all the Appellants were the miscreant and came armed with deadly weapons should have been more closely scrutinised by him in order to eliminate all chances of false and mistaken implication. 9. The main defence of the Appellants, as stated earlier, was a complete denial of the occurrence. 9. The main defence of the Appellants, as stated earlier, was a complete denial of the occurrence. According to them, the whole case was concocted due to the admitted enmity between the Appellants and the family of P.W. 1 P.W 1. in his evidence had also admitted that ill all 22 criminal cases against a majority of the accused persons were pending at the time of the occurrence. He further admitted that these 16 Appellants are the residents of village Baunsia and claimed to be in possession of the lands in dispute as bhag tenants. They had also filed cases under the provisions of the Orissa Tenants Relief Act. P.W. 1 also admitted that accused No. 1, Banamali Moharana was a local leader of the Praja Socialist Party and had been agitating against him and his family on the floor of the State Assembly prior to 1956. Accordingly, he admitted to have sent a letter (Ext. A) challenging Banamali for those statements. The occurrence appears to have taken place between 7 and 7-30 A.M. on August 11, 1957 and the first information report (Ext. 1) was handed over to P.W. 20 at 8 P.M. that night. Thus, admittedly, there had been a considerable delay of about twelve hours in lodging the first information report. But before Ext. 1 was handed over to P.W. 20, the group Karji (P.W. 16) reported that morning to the Sub-Inspector of Purusottampur, Section regarding some occurrence having taken place at Baunsia (vide Ext. 14/1). The same day Harihar Das sent a letter to the Sub-Inspector informing him that he had heard about mob violence at village Baunsia and requested him to depute armed forces to maintain law and order. The Sub-Inspector recorded a station-diary entry being entry No. 173 at 2-30 P.M. of August 11, 1957 (vide Ext. 8/1). The station-diary entry No. 173 was to the following effect: V.M. Gokulananda Patnaik of Baunsia along with Sri Harihar Das, M.L.A. presented a written report to the effect that yesterday night Biswanath Das (Goudo) held a meeting with the Baunsia people and today at about 8 A.M. the Goudo people of Baunsia attacked the house of Bipra Charan Das and Shy am Sundar Das in a mob and assaulted some inmates. They heard this from some public and reported the matter at the P.S. The V.M, has not visited the village nor has seen the occurrence. They heard this from some public and reported the matter at the P.S. The V.M, has not visited the village nor has seen the occurrence. They could not say the name of the accused persons nor the complainants. Sri Harihar Das, M.L.A. has given in writing to this effect and he wants armed force to be stationed at Baunsia to maintain law and order. I have submitted reports to S.P. and C.I. for deputation of force to maintain law at village Baunsia. 10. P.W. 7, Raju Nahak went to village Dangopodar at a distance of about 2 miles from the place of occurrence where the father of P.W. 1 was staying and informed him at about 9.30 A.M. regarding the occurrence. P.W. 8 after certain unsuccessful attempt, eventully arrived in the village at 5.30 P.M. and soon after one Chhabilal Patnaik, the brother of P.W. 3 arrived there. According to the evidence of P.W. 1 the first information report was written out at 6 or 6-30 P.M. by this Chhabilal Patnaik to his dictation. Chhabilal Patnaik has not been examined in this case. The Assistant Sub-Inspector of Police (P.W. 20) arrived at 8 P.M. It may be remembered that neither P.W. 1 nor P.W. 8 had sent any information to the Police Station at Purusottampur. However, after the arrival of the Sub-Inspector Ext. 1 was handed over to him. 11. In view of these facts it was argued at the Bar that Ext. 14/1 was the real first information Report and not Ext. 1. According to Mr. Misra, Ext. 1 is hit by Section 162 of the Code of Criminal Procedure since it was a statement made to the Police Officer during investigation. Thus he contended that the Police Officer on receipt of the information (Ext. 14/1) as recorded in the station diary entry (ext 8/1) started for the place of occurrence, and accordingly, had proceeded to start the investigation. The evidence is that the Sub-Inspector in charge of the Police Station sent the Assistant Sub-Inspector to find out facts and to maintain law and order. The law appears to be quite clear that information given to the Police after the investigation had commenced is a statement made to the Police Officer u/s 161 of Chapter XIV of the Code of Criminal Procedure, and accordingly, that statement cannot be used in evidence by the prosecution. The law appears to be quite clear that information given to the Police after the investigation had commenced is a statement made to the Police Officer u/s 161 of Chapter XIV of the Code of Criminal Procedure, and accordingly, that statement cannot be used in evidence by the prosecution. Cases may arise that different report regarding the commission of an offence may be sent independently by different persons from different places. In that event, the later report is not hit by Section 162 and would be an independent F.I.R. and can be used in evidence by the prosecution. In the case of Emperor Vs. Lalji Rai, a Division Bench of the Patna High Court took the view that where a report about the commission of an offence is given to the Police at two different places by two different persons, and one is earlier in point of time than the other, the later report is not a statement made to a police Officer in the course of investigation but is an independent first information report and therefore can be used in evidence by the prosecution. Thus, Ext. 1 cannot be regarded as in admissible though an earlier report without any details whatsoever was given by P.W. 16. The term "first information" has not been mentioned in the Code of Criminal Procedure, but it means information as recorded u/s 154 (vide ILR 1958 Cal. 1312). A vague or indefinite information which does not make it incumbent to start investigation is not an information within the meaning of Section 154. Thus, when the officer-in-charge of the Police Station was simply told that there was some occurrence at village Baunsia without disclosing the name of the complainant nor the accused persons or any detail thereof it cannot be said to be a first information within the meaning of Section 154 of the Code of Criminal Procedure. Accordingly, in our view, Ext. 1 was the first information given in this case. 12. Even, if Ext. 1 is treated as the first information, it is still to be seen whether it was a true report of the occurrence or there were exaggerations and embellishments. Accordingly, in our view, Ext. 1 was the first information given in this case. 12. Even, if Ext. 1 is treated as the first information, it is still to be seen whether it was a true report of the occurrence or there were exaggerations and embellishments. The learned Additional Sessions Judge found that in view of the interestingness of the prosecution witnesses and the laps of time of about twelve hours between the occurrence and the lodging of the first information report, there was enough time and opportunity for these 4 prosecution witnesses to have exaggerated the story and to make a report. The delay in lodging the first information report has been viewed with suspicion to eliminate the chance of false and mistaken implication. In the well-known case of Privy Council in AIR 1945 18 (Privy Council) took the view that the object of the providence of Section 154 and 155 of the Code of Criminal Procedure is to obtain early information alleged Criminal activity, and to record the circumstances before there is time for them to be forgotten or embellished. Similarly, in the case of Radha Krishen v. Emperor AIR 1954 Lah 714 the Lahore High Court was of opinion that delay in making a report to the Police is only a suspicious circumstance which puts the Court on its guard and cannot by itself be held to be a reason for ejecting evidence which is otherwise fully entitled to credit. By the time this F.I.R. was written, p.w. 8 had already arrived. So also Chhabilal Patnaik, the brother of p.w. 3. p.ws. 2, 3, and 4 were there since the time of the occurrence in the morning. P.w. 7, admittedly a halia of p.w. 1, had gone and informed p.w. 8. According to him, he had seen with his own eyes some of the accused persons carrying away paddy from the house of P.w. 1. This he related to Praharaj Mohapatra. According to p.w. 16 it is this Praharaj Mohapatra who informed about the occurrence to him, and accordingly, he went to the Police Station and reported as in Ext. 14/1. Ext. 14/1 does not mention anything about the looting of paddy. Although Biswanath Das had been mentioned to have held the meeting on the previous night in Ext. 14/1, Ext. 1 mentions about Banamali Moharana having held the meeting. 14/1. Ext. 14/1 does not mention anything about the looting of paddy. Although Biswanath Das had been mentioned to have held the meeting on the previous night in Ext. 14/1, Ext. 1 mentions about Banamali Moharana having held the meeting. According to p.w. 1, this information he received, shortly before the first information report was written out, from his halia, Bena Naik and his clerk Praharaj Mohapatra. These to persons have not been examined in this case. In Ext. 1, mention was made that p.w. 1 became senseless as a result of the injuries inflicted on him. Not a word has been whispered in the evidence about it p.w. 8 in his deposition had stated that he came with three or four persons from Dengapodoro to Baunsia, but was obstructed by the villagers. But none of these persons have been examined and nothing has been said in Ext. 1 regarding the obstruction to p.w. 8 as a result of which he arrived at the place of occurrence at 5-30 p.m. The assault and the loot, according to the prosecution case, had taken place simultaneously. Thus, there is some substance in the argument of Mr. Misra that the real first information, that is, Ext. 14/1 was left vague with a view to have a suitable report later on as is given in Ext. 1. It is argued that the statement made in Ext. 1 are not fully corroborated by the evidence of the prosecution witnesses at the trial. Similarly, the probabilities are also against the happening of an occurrence as alleged by the prosecution in the board day light. Mr. Misra submitted that if at all the Appellants had previously planned such an attack, as stated by the prosecution, they would have accomplished their object in the darkness of the night and opportunities were not taking for them to do the same. 13. His Lordship deals with the evidence of P.Ws. xxx. 14. The Police in this case, it appears to us, has not investigated the case properly. According to the evidence of p.w. 3, 4 to 6 lathis were lying inside the latrine, but Police had not seized any lathi from the latrine. The lathis that were seized were from the houses of different accused persons, and were articles of common use in a village. P.Ws. According to the evidence of p.w. 3, 4 to 6 lathis were lying inside the latrine, but Police had not seized any lathi from the latrine. The lathis that were seized were from the houses of different accused persons, and were articles of common use in a village. P.Ws. 1 and 4 categorically stated that the Assistant Sub-Inspector of Police examined them and certain other person on the night of the occurrence, but did not record their statements. The Circle Inspector arrived there the following morning and re-examined them and their statements were then recorded. Although according to the evidence of p.w. 1 there were marks of blood on the floor of the latrine, the Police did not seize them on the ground that it would break the floor. Curiously again, the Police waited for the photographer to arrive on the next morning to take a photograph of the window with the iron bars. The iron bars were not taken out as they were but had been pulled out by a Halia. The result was that the iron bars, as we have found now, do not represent the condition in which they are found in the photograph. The Police could have cut the wood portion of the window and would have taken out the iron bars without causing further damage to them. P.W. 1 stated that he was maintaining a paddy account. Neither the Police had seized the account book nor had measured the paddy in the granary to find out if actually some paddy had been taken away by the accused persons as alleged by the prosecution. Thus, in view of the above facts it becomes extremely doubtful if the occurrence did actually take place as has been alleged by the prosecution. 15. It was vehemently argued by the learned Govt. Advocate that since the present Appellants were members of the unlawful assembly and did assault and loot the properties belonging to p.w. 1, in furtherance of their common object, their conviction should be maintained. It is well known that in order to sustain a conviction u/s 147, it is essential that the persons forming the unlawful assembly should be animated by a common object and in the absence of a clear finding to that effect the conviction cannot be sustained. It is well known that in order to sustain a conviction u/s 147, it is essential that the persons forming the unlawful assembly should be animated by a common object and in the absence of a clear finding to that effect the conviction cannot be sustained. Attempt had been made to prove that the accused persons were present in the courtyard and some of them took part in the assault, whereas certain others had looted away the paddy. The learned Judge had not arrived at a clear finding that they were animated by one common object. This question came up for consideration before the Supreme Court in the case of Baladin and Ors. v. state of Uttar Pradesh AIR 1956 S.C. 81 wherein their Lordships have laid down that it is shown that it is well settled that mere presence in an assembly does not make such a person a member of an unlawful assembly unless it is shown that he had done something or omitted to do something which would make him a member of an unlawful assembly, or unless the case falls u/s 142 of the Indian Penal Code. If members of the family of the Appellants and other residents of the village assembly, all such persons could not be condemned 'ipso facto' as being members of that unlawful assembly. It is necessary therefore, for the prosecution to lead evidence pointing to the conclusion that all the Appellants had done or been committing some overt act in prosecution of the common object of the unlawful assembly. The omnibus evidence in general terms to the effect that all these persons and many mope were the miscreants arid were armed with deadly weapons, like gun, spears, phrases, axes, lathis etc., naturally has to be very closely scrutinised in order to eliminate all chances of false or mistaken implication. I have shown above that the evidence of the prosecution witnesses were more in a general nature and the same was not free from doubts. Further, when the evidence of witnesses on vital particulars had been rejected, it would be unsafe to rely on the residue of their evidence in order to convict the Appellants of a minor charge as u/s 147. My learned brother took that view in the case of Madhusudan Ray and 7 Ors. v. State 25 C.L.T. 139. Further, when the evidence of witnesses on vital particulars had been rejected, it would be unsafe to rely on the residue of their evidence in order to convict the Appellants of a minor charge as u/s 147. My learned brother took that view in the case of Madhusudan Ray and 7 Ors. v. State 25 C.L.T. 139. In a previous case of this Court in Krishan Patro and Ors. v. State 24 C.L.T. 23 a Division Bench took the view that more competence to depose as an eye-witness does not necessarily mean that their evidence should be taken as reliable. Once, it is established that the eye-witnesses belong to a hostile faction and it is also clear that they are suppressing a material portion of the occurrence, it is difficult to accept their evidence as to how exactly the fight took place. Doubtless, if a consistent story had been put forward, it may be possible for a court even to accept the testimony of partisan witnesses specially where, the village is divided into two factions and disinterested persons may not be available. But when the F.I.R. version and the case as put forward in the court do not tally, it will be extremely hazardous for a court to conjecture as to how the fight must have taken place. In the case of Ram Chand and Others Vs. The State, it was similarly held that the commission of the dacoity being an important part of the entire narrative could Dot be said to be merely a fringe or embroidery to the main story. On the contrary, it was the main part of the deposition of the witnesses and it was wholly untrue. It has therefore, had the effect of pulling a stone out of the arch and, therefore, of the whole fabric of their testimony falling to the ground. The conviction of the accused on the testimony of such witnesses was, therefore, wholly unjustified. I had shown above that some of the material witnesses have not been examined by the prosecution, and no satisfactory explanation has been offered at the trial on that behalf. In this connection, I may refer to a case in Dhirendra Nath Vs. State. The conviction of the accused on the testimony of such witnesses was, therefore, wholly unjustified. I had shown above that some of the material witnesses have not been examined by the prosecution, and no satisfactory explanation has been offered at the trial on that behalf. In this connection, I may refer to a case in Dhirendra Nath Vs. State. In that case, their Lordships of the Calcutta High Court took the view than it is no doubt true that the prosecution is not bound to call all available witnesses irrespective of what they might say. But when certain witnesses are known to be witnesses of the occurrence and the prosecution does not call them, the prosecution ought to place before the court some explanation as to why they had not been called, either by way of examining the investigating Police Officer or otherwise. It would then be for the Judge to tell the juri that the witnesses not called were witnesses of the occurrence, but the prosecution had given a reason for not calling them and that it would be for the jury to consider whether that reason was a good and credible reason. But if they came to the conclusion that the reason could not be accepted, the position would be that material witnesses had been with-held and the jury would be entitled to draw a presumption against the prosecution. While coming to this conclusion, their Lordships had relied upon an earlier decision of that Privy Council in Stephen Seneviratne v. The King AIR 1936 P.C. 289 . After having given our anxious consideration to the case, we are of opinion that in view of the admitted enmity between the complainant and the Appellants and in view of the interestingness of the prosecution witnesses and their discrepant statements as also in view of the fact that the main incident has been disbelieved by the learned Additional Sessions Judge, the Appellants are entitled at least to the benefit of doubt. Accordingly, we would set aside the order of conviction and sentence, allow Criminal Appeal Nos. 88 and 98 of 1958 and direct that the Appellants be set at liberty forthwith. 16. Accordingly, we would set aside the order of conviction and sentence, allow Criminal Appeal Nos. 88 and 98 of 1958 and direct that the Appellants be set at liberty forthwith. 16. Coming now to the Government Appeal No. 13 of 1958, as I have stated earlier, it was directed against the acquittal of 15 accused persons u/s 147 and certain accused persons u/s 395 and certain others of the charge u/s 395/149. The first group of 15 accused persons can well be divided into three sections, namely (i) the relatives of the bhag tenants being 7 in number; (ii) the Praja Socialist Party workers who are 4 in number; and (iii) the sympathisers of the bhag tenants also 4 in number. According to the prosecution there was a meeting of the villagers consisting of these, accused persons on the night of the 10th. Ext. 14/1 mentions that P.W. 16 came to know that Biswanath Das and the people belonging to the other camp of Shyam Sundar Das held a meeting last night. This version has been completely changed in Ext. 1 wherein it was mentioned that P.W. 1 came to know that on the previous night Banamali Moharana held a meeting in the Hanuman Math in village Baunsia. He also gave an explanation for this statement in Ext. 1. According to him, he got this information from his Halia Bona Naik and clerk, Praharaj Mohapatra. I had discussed above that the names were not mentioned in Ext. 1 nor have they been examined at the trial. In order to prove the meeting on the night of the 10th, the prosecution examined p.ws. 11, 12 and 13. The learned Additional Sessions Judge had disbelieved these three witnesses and we see no compelling reason to differ from him. Thus, the basis for the formation of the unlawful assembly as has been alleged by the prosecution falls to the ground. Besides, as far as the four Praja Socialist party workers are concerned, that is, accused Nos. 1, 2, 25 and 26, it is admitted that accused No. 1 Banamali Moharana was leading the P.S. Party and was an ex-member of the State Legislature on that party ticket. It is also admitted that these persons were supporting the agitation of the bhag tenants in that area. They are admittedly not residents of Baunsia. 1, 2, 25 and 26, it is admitted that accused No. 1 Banamali Moharana was leading the P.S. Party and was an ex-member of the State Legislature on that party ticket. It is also admitted that these persons were supporting the agitation of the bhag tenants in that area. They are admittedly not residents of Baunsia. The allegation of the prosecution that they had come the night previous having been disbelieved, it is doubtful if they were present at all on the date of occurrence in village Baunsia. The facts and circumstances in this case also go against the probability of these Praja Socialist workers being present at the time of occurrence. From Ext. 8/1 it is clear that p.w. 16, the Village Munsif, had reported against the Goudos of Baunsia who had committed the mob violence. He had not mentioned about the presence of Banamali Moharana or his coworkers. If in fact Banamali Moharana had come, the Village Karji would have come to know about it and would not have omitted his name. 17. Similarly, the letter sent by Harihar Das does not mention about the presence of Banamali or his workers. The learned Additional Sessions Judge who had the opportunity of seeing the witnesses in the witness box and marring their demeanour thereat has disbelieved these witnesses and had come to the conclusion that these four accused persons have been purposely implicated after deliberation by p.ws. 1 to 4 who had about twelve hours time to make the report under Ext. 1. 18. Coming to the sympathisers, that is, accused Nos. 3. 12, 29 and 30, the learned Additional Sessions Judge had found that accused No. 3 Biswanath Das was rather a rich man of the village. According to his statement, p.w. 1 and his father asked him to help them in their fight against the tenants which he had refused. It is after this refusal that they have been trying to implicate him in some case or other. The learned Additional Sessions Judge, it appears, has committed an error of record when he said that p.w. 3 had lodged a complaint on August 4, 1956. From a closer examination of the record, it appears that this report (Ext 13) was alleged by Shri M.K. Mallik, A.S.I. in which Biswanath Das was named as one of the accused persons. The learned Additional Sessions Judge, it appears, has committed an error of record when he said that p.w. 3 had lodged a complaint on August 4, 1956. From a closer examination of the record, it appears that this report (Ext 13) was alleged by Shri M.K. Mallik, A.S.I. in which Biswanath Das was named as one of the accused persons. This report was lodged on June 1, 1956 and P.W. 3, it appears, made certain statements in that case on August 4, 1956. From the evidence of P.W. 1, it is clear that on the information lodged by Ananta Charan patnaik (P.W. 3), a G.R. case was started for an alleged occurrence at Baunsia against Igni Behera and others under Sections 147, 379, 323 etc. In that case, he made a statement that he was the gomasta of Bipra. Charan Das. Although Biswanath Das was sought to be implicated by the first information in Ext. 13, from the charge-sheet (Ext. C-b) it appears that he was not charge-sheeted and d.w. 1 in his cross-examination had stated that Ananta patnaik's statement was recorded on August 4, 1956. The report in Bhaigo Goudo's case was submitted by A. Section I. regarding an occurrence dated June 1, 1956. Unless he could see the case diary, he could not say on what ground he excluded Biswanath Das & others from the charge-sheet. Thus, there is evidence to show that there was previous attempt by the complainant's party to implicate accused No. 3 and his relations also, and the learned Additional Sessions Judge rightly had given the benefit of doubt and acquitted them. 19. There remains still the charge against the seven relatives of the tenants. These are accused Nos. 10, 14, 15, 21, 22, 27 and 31. 19. There remains still the charge against the seven relatives of the tenants. These are accused Nos. 10, 14, 15, 21, 22, 27 and 31. Accused No. 10 is the son of accused No. 4, accused No. 14 is the brother of accused No. 9, accused No. 15 is the brother of a tenant, accused No. 21 is the nephew of accused No. 8, accused No. 22 is the son of accused No. 28, accused No. 27 is the father of accused No. 13 and accused No. 31 is a relation of accused No. 24, On a consideration of the evidence, the !earned Additional Sessions Judge came to the conclusion that in the circumstances the possibility of p.w. 1 and others having included their names is that excluded, and accordingly; he had given the benefit of doubt to these persons also, We had gone through the entire evidence and from the general nature of evidence, it is clear that the prosecution has been trying to implicate not only the bhag tenants, but also those people who were interested in them. Accordingly, the acquittal of these 15 persons u/s 147 must stand. 20. Coming now to the question of the charge u/s 395 of the Indian Penal Code, the learned Govt. Advocate did not press the prosecution version regarding the looting of paddy. He, however, insisted on the removal of the dhoti, wrist watch and the extortion of a valuable document from p.w. 1 as also the removal of certain articles as mentioned above from the house including a cash of Rs. 300/-. In order to sustain a conviction u/s 395 of the Indian Penal Code, it must be proved that the violence had been used for the Act of committing theft. The prosecution evidence is that the assault and the loot took place simultaneously. It is not the prosecution evidence that the assault took place in order to loot the property of p.w. 1. p.ws. 1 to 4 were positive that some of the accused persons while indulging in assaulting them, the others had broke open the granary and carried away the paddy. It is not the prosecution evidence that the assault took place in order to loot the property of p.w. 1. p.ws. 1 to 4 were positive that some of the accused persons while indulging in assaulting them, the others had broke open the granary and carried away the paddy. In the case of AIR 1933 407 (Lahore) it was held that in order that theft may amount to robbery, it must be shown that hurt was caused in order to commit the theft or in carrying away or attempting to carry away the property obtained by theft. The hurt contemplated must be a conscious and voluntary act on the part of the thief for the purpose of overpowering resistance on the part of the victim, quite separate and distinct from the act of theft itself. In the instant case, the assault is not for the express purpose of committing the robbery. Similarly in the case of Subramania Aiyar and Another Vs. A.L.V.R.R.M. Muthia Chettiar (dead) and Others, a Division Bench of the Madras High Court took the view that to constitute the offence of decoity, it is necessary that death or hurt or wrongful restraint or fear of such instant evils should be caused by the offenders not only in order to the committing of theft or in committing theft, or in carrying away property obtained by theft, but also for that end and that five or more persons should be acting conjointly. The word "for that end" cannot be read as meaning "in those circumstances". 21. Hence, in my view, the prosecution has not been able to substantiate the charge u/s 395 of the Indian Penal Code. As regards the extortion of a valuable document from p.w. 1, the document has not been produced at the trial. It could not have been produced also because according to the allegations of the prosecution, the document would be in the possession of the accused persons. The learned Additional Sessions Judge had given cogent reasons for disbelieving this part of the story as also the removal of the dhoti and the wrist watch do not want to repeat them here. 22. The learned Government Advocate, however, vehemently urged that the learned Additional Sessions Judge had not considered about the removal of cash and other things from the almirah at all. P.Ws. 22. The learned Government Advocate, however, vehemently urged that the learned Additional Sessions Judge had not considered about the removal of cash and other things from the almirah at all. P.Ws. 1 to 4 have not stated anything regarding breaking of this almirah or the removal of the articles therefrom. All the evidence that is available is that p.w. 1 stated that these articles were removed by the miscreants. No witness not even p.w. 5 or p.w. 15 had seen the removal of any article from the room where the almirah was kept although they had seen the accused persons carrying paddy in baskets and bags. Nothing also has been recovered from the possession of these accused persons. Hence, we find it difficult to convict the accused persons u/s 395 or 395/149 of the Indian Penal Code. Accordingly, there is no merit in the Government Appeal and it must be dismissed. 23. In the result, Criminal Appeal Nos. 88 and 98 of 1958 are allowed and the Appellants Bhaigo Goudo, Hari Pollai, Natabar Pollai, Arjun Goudo, Banchhanidhi Das, Arkhit Goudo, Baraja Alias Brajabandhu Sahu, Muhapatra Goudo, Govinda.Goudo, Puma Chandra Das, Bhobani alias Bhobana Gouda, Raghunath Behera, Musa Goudo, and Gadei Goudo, Dukha Goudo and Dayanidhi Goudo are acquitted and are set at liberty forthwith. Government Appeal No. 13 of 1958 is dismissed. Barman, J. 24. I agree. 25. Criminal Appeal 88 and 98 Allowed, Government Appeal dismissed. Final Result : Dismissed