GOURANGA NAIK v. STATE — 1985 DIGILAW 326 (ORI)

BEHERA, J. ( 1 ) THESE two appeals arising out of the same judgment and order have been heard together and will be governed by this common judgment. ( 2 ) WE would, at the outset, give a brief outline of the case of the prosecution and the steps taken in the course of investigation. The appellants in these appeals with two other co-accused persons, namely, Bharat Chandra Pani and Prafulla Kumar Pani, stood their trial in the Court of Session. The appellant Maheswar Pani stood charged under S. 302 of the Penal Code ('the Code', for short) for having committed the murder of Brahmananda Pani (to be described hereinafter as 'the deceased') by dealing a blow on his head with a crow-bar on Nov. 3, 1978, at Jaleswarpur in the district of Cuttack and the appellant Gouranga and the two other co-accused persons stood charged under S. 302 read with S. 34 of the Code for commission of the same murder in furtherance of their common intention. The appellant Gouranga stood separately charged under S. 341 of the Code for wrongfully restraining the deceased by catching hold of him which, according to the prosecution, facilitated the appellant Maheswar to deal the blow on the head of the deceased. The two appellants and the other two co-accused persons stood charged under S. 324 read with S. 34 of the Code for voluntarily causing hurt to Niranjan Pani (P. W. 1), Netrananda Pani (P. W. 8) and the deceased by means of a crowbar and lathis which, used as weapons of offences, were likely to cause death. ( 3 ) THE deceased, the injured witnesses, the appellants and the co-accused persons belonged to the same village. The appellant Maheswar and the co-accused Bharat, being the sons of Nanda Kishore and the co-accused Prafulla, being the son of Gajendra, both Gajendra and Nanda Kishore being the sons of Krushna, are brothers. There had been long standing dispute between the two groups which had led to various litigations and on the day previous to the day of occurrence, Sarat Pani (another son of Gajendra), also belonging to the group of the appellants and the co-accused persons, had reported at the Mahanga Police Station against the complainant's party for damage to paddy crops. In the morning of Nov. In the morning of Nov. 3, 1978, while Balabhadra (P. W. 3), the son of the deceased, was returning after taking his bath, the co-accused Bharat abused him for cutting away his paddy crops during the previous night to which the former protested and on being called out by the co-accused Bharat; the other three accused persons came to the scene, the appellant Maheswar being armed with a crow-bar and the accused Prafulla having two lathis. The appellant Gouranga had come to the scene without any instrument. The deceased, who had gone out to arrange labour, was then returning. The appellant Gouranga caught hold of him and the appellant Maheswar dealt a blow with the crow-bar on his head which ultimately proved fatal and the deceased fell down. Niranjan (P. W. 1) came to the rescue of the deceased when he was dealt a blow by means of the crow-bar on his head by the same appellant Maheswar. Similarly when Netrananda (P. W. 8) came to the scene, he was dealt a blow by the same appellant, which hit his head, by means of the crow-bar. The co-accused Prafulla and Bharat, it was alleged, had been brandishing lathis on the scene of attack. When a number of persons gathered, the two appellants and the co-accused persons took to their heels in the direction of the house of Kailash Tripathy and while leaving the spot, the appellant Maheswar Had thrown away the crow-bar (M. O. I) on the spot which had later been picked up by Pravakar Pradhan (P. W. 5) and made over to Rangalata (P. W. 6), the widow of the deceased, who, in turn, had produced it in the course of investigation and it was seized. The deceased was carried to the Primary Health Centre at Mahanga and the two injured persons Niranjan (P. W. 1) and Netrananda (P. W. 8) also went to that place for treatment. On the basis of the report (Ex. 1/1) made by P. W. 1, investigation followed in the course of which the deceased and the two injured persons were examined by the Medical Officer (P. W. 12) at Mahanga as per the injury reports (Exts. 5 to 7) and attempts were made to remove the deceased for medical treatment at cuttack, but no vehicle could be available and the deceased succumbed to the injuries sustained by him. 5 to 7) and attempts were made to remove the deceased for medical treatment at cuttack, but no vehicle could be available and the deceased succumbed to the injuries sustained by him. In the course of investigation, the Officer-in-charge of the Mahanga Police Station (P. W. 14) took steps for the autopsy over the dead body of the deceased which was done by the doctor (P. W. 13) as per the postmortem report (Ex. 8) and the Investigating Officer seized M. O. I, on production by Rangalata (P. W. 6), the clothes of the deceased (M. Os. II and III) and bloodstained and sample of earth from the spot. On his transfer, he made over charge of the investigation of the case on Aug. 17, 1979 to P. W. 11 who submitted the charge-sheet in Nov. , 1979. ( 4 ) ACCORDING to the case of the defence, on Nov. 1, 1971 (sic), their paddy crops have been damaged for which Sarat had lodged the First Information Report at the Mahanga Police Station on the day following and investigation had been taken up by the Police agency by coming to the village. On Nov. 3, 1978, i. e. the day of occurrence, Sarat had left for the police station. Balabhadra challenged the co-accused Bharat as to why the report had been lodged and slapped him for which the appellant Maheswar, co-accused Prafulla and the family members abused Balabhadra. Thereafter Balabhadra and others came with lathis and brick-bats and pelted brick-bats at the appellants and the co-accused and members of their families for which the latter shut their doors and remained inside their houses. Balabhadra and the members of his party attempted to push open the doors and held out threats that they would set fire unless they came out. It was then that the appellant Maheswar with a lathi and co-accused Bharat with a crow-bar came out and in their self-defence, brandished those instruments. Some one from the prosecution party dealt a blow on the appellant Maheswar. During that occurrence, a crow-bar hit the deceased's head and he fell down. At this, the prosecution party became enraged and, therefore, the appellant Maheswar and the co-accused Bharat ran and took shelter in the house of Kailash Tripathy until the police authorities came to the scene and rescued them. During that occurrence, a crow-bar hit the deceased's head and he fell down. At this, the prosecution party became enraged and, therefore, the appellant Maheswar and the co-accused Bharat ran and took shelter in the house of Kailash Tripathy until the police authorities came to the scene and rescued them. When the rioting was going on, the niece of Sarat came to the shop of Somanath Samal (D. W. 1) where Sarat was taking tea on his way to the police station and informed him about the rioting. Sarat went straight to the police station and on the basis of his information, Station Diary Entry No. 43 was made by P. W. 14 who came to the scene and on the basis of the report of the co-accused Bharat, recorded the first information report on the basis of which Police Station Case No. 102 of 1978 was registered and investigation followed. ( 5 ) TO bring home the charges, the prosecution had examined fifteen witnesses. Of them, P. Ws. 1 to 9 had figured as witnesses to the occurrence. In their defence, the appellants and the co-accused persons had examined Somanath Samal whose evidence, as submitted at the Bar, was not of much consequence. ( 6 ) ON a consideration of the evidence, the learned Sessions Judge has criticised the conduct of the Investigating Officer (P. W. 14) and has found that the investigation was perfunctory. The finding recorded by the trial Court is that there had been serious discrepancies in the statements of the prosecution witnesses recorded in the course of investigation and their evidence at the trial and if it is held that the Investigating Officer had faithfully recorded the statements of the prosecution witnesses, they were to be disbelieved for material discrepancies in their statements at different stages. Having found that the investigation was of a tainted character, the trial Court has brushed aside the discrepancies and has accepted the evidence of the prosecution witnesses so far as the charges under S. 302 and under S. 324 of the Code against the appellant Maheswar and the charge under S. 341 of the Code against the other appellant Gouranga are concerned. The trial Court has held that the other charges had not been established. The trial Court has held that the other charges had not been established. For his conviction under S. 302 of the Code, the appellant Maheswar has been sentenced to undergo imprisonment for life and for his conviction under S. 324 of the Code, he has been sentenced to undergo rigorous imprisonment for a period of six months without any order that the sentences would run concurrently in view of the sentence of imprisonment for life awarded against him. The appellant Gouranga has been convicted under S. 341 of the Code and has been sentenced to suffer simple imprisonment for a period of one month. ( 7 ) APPEARING on behalf of the appellants, Mrs. Padhi has contended that the evidence from the side of the prosecution was that of highly interested witnesses and being partisan in character, could not be accepted without corroboration. It has been contended that regard being had to the material discrepancies in the statements made by the eye-witnesses in the course of investigation and at the trial, their evidence was not worthy of credence and ought not to have been accepted by the trial Court by wrongly coming to a conclusion regarding the bona fides of the Investigating Officer whose conduct in the course of investigation did not deserve the treatment given to him by the trial Court. It has been contended on behalf of the State that the prosecution witnesses present on the scene were natural and competent witnesses and their evidence given at the trial does deserve credence if this Court, in agreement with the trial Court, finds that the investigation was suspect. ( 8 ) IT is not disputed at the Bar that the injury on the head which had resulted in serious internal injuries including injuries to the brain had resulted in the death of the deceased and that the two superficial injuries found on his person could be caused by a fall and according to both the sides, the deceased fell down after being hit on his head by a crow-bar which, according to the prosecution, was to be attributed to the attack on him by the appellant Maheswar and according to both the defence, (sic) was accidental by being hit on his head by some one on the scene. Thus whether the death of the deceased was homicidal or accidental in nature and as to whether the appellant Maheswar was responsible for his death and for causing injuries on P. Ws. 1 and 8 by means of the crow-bar (M. O. I) and as to whether the other appellant had wrongfully restrained the deceased would depend on the acceptance of the evidence of the prosecution witnesses said to have been present on the scene of occurrence. ( 9 ) REGARD being had to the contentions raised by the learned counsel appearing for both the sides, the first question for consideration would be as to whether the finding recorded by the trial Court that the investigation was suspect and had not been conducted properly is to be accepted. If it is established that the Investigating Officer had not faithfully recorded the statements of the witnesses and his conduct is unreliable, the Court has to weigh the evidence of the prosecution witnesses given in the Court without attaching importance to the statements recorded in the case diary in the course of investigation, as observed by the Supreme Court in AIR 1956 SC 181 , Baladin v. State of Uttar Pradesh to which reference has been made by the learned trial Judge. As has been observed by the Supreme Court in AIR 1983 SC 826 : 1983 Cri LJ 1081, Bhagwant Singh v. Commr. of Police, Delhi, the haphazard maintenance of a police case diary not only does no credit to those responsible for maintaining it, but defeats the very purpose for which it is required to be maintained. It is of utmost importance that the (sic) sufficient details, mentioning all significant facts, in careful chronological order and with complete objectivity. One must, however, keep in mind that the presumption that a person acts honestly applies as much to a police officer as to any other person. So mala fides or improprieties on the part of an Investigating Officer are not to be readily assumed unless the evidence and the circumstances obtaining in a case and the conduct on the part of the Investigating Officer would clearly lead to such a conclusion. So mala fides or improprieties on the part of an Investigating Officer are not to be readily assumed unless the evidence and the circumstances obtaining in a case and the conduct on the part of the Investigating Officer would clearly lead to such a conclusion. ( 10 ) IF instead of properly pursuing the investigation, it is shown that the investigation in the case suffers from callousness, lack of incisiveness and unreasonable dilatoriness, the case diary cannot assume the same importance while judging the evidence of witnesses at the trial whose statements had been recorded therein. In AIR 1974 SC 220 , Chandrakant Luxman v. State of Maharashtra, the Supreme Court has observed and held :"the learned trial Judge disbelieved the evidence of the eye-witnesses Kana Bhika and Sunder Govind almost wholly on the ground that the version of the incident given by them was not consistent with the earliest version recorded at the Bandra Police Station, on the evening of the 11th. In coming to this conclusion, the learned Judge overlooked that the officer in charge of the police station adopted an unduly light-hearted attitude to the complaint which Arjun wanted to make and in fact, in a departmental proceeding taken against the officer, a fine was imposed on him for remissness in the discharge of his official functions. Counsel for the appellant is right that the benefit of what the High Court terms a highly defective' investigation cannot go to the prosecution. If it were to appear that the story narrated by Arjun immediately after the incident was in material particulars different from the evidence of the eye-witnesses the benefit of such an infirmity would have gone to the accused. But if on a proper evaluation of the various facts and circumstances it transpires that the apparent inconsistencies in the case of the prosecution are solely the result of remissness on the part of the investigating officer and not of any improvement or prevarication on the part of the prosecution witnesses, there would be no justification for discarding the accusation. "a conclusion of imperfect or mala fide investigation with remissness or lack of zeal must, however, be borne out from the evidence and cannot be assumed by surmises or on the basis of some inconsequential delay in unimportant steps in the course of investigation or while recording of the statements of the witnesses with regard to minor details. "a conclusion of imperfect or mala fide investigation with remissness or lack of zeal must, however, be borne out from the evidence and cannot be assumed by surmises or on the basis of some inconsequential delay in unimportant steps in the course of investigation or while recording of the statements of the witnesses with regard to minor details. If the investigation in the instant case is found to be reliable and acceptable, even as the learned Sessions Judge has observed, the case must have to be thrown out. If, on the other hand, a contrary conclusion is reached, the evidence of P. Ws. 1 to 9 would require careful scrutiny before its acceptance without discrediting them with reference to the statements recorded in the case diary. ( 11 ) THE main grounds on which the learned trial Judge has held the investigation to be suspect and perfunctory in the body of his judgment do not appeal to us. The fact that the Investigating Officer did not seize the crow-bar (M. O. I.) on the spot would not be a circumstance to attack the bona fides of the investigation as the prosecution evidence would show that Rangalata (P. W. 6) had been in possession of M. O. I, having been handed over to her by another person who had picked it up on the spot and in the course of investigation, this instrument had been seized on being produced by her. This was her evidence in the Court. There was no evidence that this article had stains of blood and no comment can legitimately be made for not sending this article for chemical examination in view of the reason given by the Investigating Officer (P. W. 14) that he did not take steps for sending this article for chemical examination as he did not notice stains of blood. The learned trial Judge has commented that instead of registering a case under S. 326 of the Code, a case had been registered by P. W. 14 under S. 325 of the Code in respect of the assault on the person of the deceased which ultimately proved fatal. In the absence of any material to indicate that this had been done with an ulterior motive and had not been done bona fide, no adverse inference could be drawn from this regarding the conduct of the Investigating Officer. In the absence of any material to indicate that this had been done with an ulterior motive and had not been done bona fide, no adverse inference could be drawn from this regarding the conduct of the Investigating Officer. Some delay in arresting some of the accused persons could not be a circumstance suggesting mala fides on the part of P. W. 14 as on the basis of the statements made in the first information report or in the statements of some witnesses which could not be the all and all of a case, an Investigating Officer might choose to make further verification before effecting the arrest of some persons. Some delay noticed by the learned trial Judge in sending M. Os. II and III for chemical examination in March, 1979, did not indicate any mala fides on his part. After all, these articles were the clothes of the deceased and were not incriminating articles recovered from the person or possession of any of the accused persons. In a large number of cases, we have noticed that articles including the weapons of attack are being sent for chemical examination by the Investigating Officers after considerable delay. The learned trial Judge has observed that although the name of the appellant Gourang had hot figured in the first information report and in the statements of some of the witnesses, P. W. 14 had taken steps to arrest him and this would give an indication that another first information report might have been lodged and some other statements had been made by prosecution witnesses which had been suppressed. But apart from the statements of witnesses made in the course of investigation, an Investigating Officer may gather some other materials against an accused person for which he may take steps to search for him for the purpose of interrogation or arrest. These grounds taken by the learned trial Judge for discrediting the investigation and criticising the conduct on the part of P. W. 14 cannot reasonably be accepted. We are, therefore, of the view that investigation had properly been conducted and no mala fides could be attributed to it. These grounds taken by the learned trial Judge for discrediting the investigation and criticising the conduct on the part of P. W. 14 cannot reasonably be accepted. We are, therefore, of the view that investigation had properly been conducted and no mala fides could be attributed to it. ( 12 ) IN the view we have taken regarding the conduct of investigation and the finding recorded by the learned trial Judge that in the event of a conclusion being recorded that investigation has been bona fide and that the statements of the witnesses have been recorded truly and faithfully, the evidence of the witnesses to the occurrence is to be thrown out because of material discrepancies in their statements from stage to stage, the orders of conviction recorded against the appellants cannot be sustained. While making the aforesaid observation in paragraph 6 of the judgment, the learned trial Judge has recorded in another part that if the investigation is taken to have been conducted properly, the case presented by the prosecution cannot be accepted as the witnesses to the occurrence must be taken as liars. We have considered with reference to the evidence of the witnesses to the occurrence, namely, P. Ws. 1 to 9, as to whether the prevaricating statements were such that the case of the prosecution would have to be thrown out as viewed by the learned trial Judge and we notice that this part of the finding recorded by the learned trial Judge cannot be said to be unwarranted or unsustainable. The witnesses to the occurrence, as found by the learned Sessions Judge, belonged to a hostile faction, being arrayed as the accused persons in criminal cases or as delinquents in proceedings under S. 107 of the Criminal P. C. against the party of the accused, although some of them made a serious attempt to suppress this part. Some of the witnesses were close relations of the deceased. Their evidence, therefore, needed careful scrutiny before acceptance, as observed by the learned Sessions Judge. ( 13 ) P. WS. 1 to 9 had testified that the appellant Maheswar dealt a blow on the head of the deceased by means of M. O. I, and when P. Ws. 1 and 8 intervened, he assaulted P. Ws. Their evidence, therefore, needed careful scrutiny before acceptance, as observed by the learned Sessions Judge. ( 13 ) P. WS. 1 to 9 had testified that the appellant Maheswar dealt a blow on the head of the deceased by means of M. O. I, and when P. Ws. 1 and 8 intervened, he assaulted P. Ws. 1 and 8 by the same instrument and that at the time of the murderous assault on the person of the deceased by the appellant Maheswar, the other appellant had caught hold of the deceased and had thus wrongfully restrained him. ( 14 ) P. W. 1 had not stated in the course of investigation, as deposed to by him in the court, that being called by the co-accused Bharat, the appellant Maheswar came with a crow-bar and that the co-accused Prafulla came with lathis. He had neither stated in his report nor in his statement to Investigating Officer about the presence of the appellant Gourang on the spot or that the co-accused Prafulla had a lathi with him. He had disowned his statement in his report that while the deceased and some others were on the one side, the appellant Maheswar and the co-accused Prafulla and Bharat were on the other side quarrelling with each other. P. W. 2 had stated in the course of investigation that he had not seen the assault on P. Ws. 1 and 8 which he had claimed to have seen in his evidence at the trial. He had not stated in the course of investigation that the appellant Maheswar threw away the crow-bar on the spot. P. W. 3 had not stated in the course of investigation that the appellant Gourang came to the spot and caught hold of his (P. W. 3's) father. He had also not stated that the appellant Maheswar had dealt blows on P. Ws. 1 and 8 by the crow-bar. On the other hand, he had stated that he could not say who assaulted P. Ws. 1 and 8. He had not stated to the investigating officer that the appellant had left the crow-bar on the spot, as deposed to by him in the Court. On his own showing, he had not been examined by the police officer on the day of occurrence or on the day following and had been examined seven to eight days after it. He had not stated to the investigating officer that the appellant had left the crow-bar on the spot, as deposed to by him in the Court. On his own showing, he had not been examined by the police officer on the day of occurrence or on the day following and had been examined seven to eight days after it. P. W. 4 had given a go-by to what he had stated in the course of investigation when he was examined at the trial. He had stated to the Investigating Officer that P. W. 1 had been assaulted by the co-accused Bharat and Prafulla and he had not stated to him that the appellant Maheswar had assaulted him. He had not stated to the Investigating Officer that the appellant Maheswar had thrown away the crow-bar on the spot. P. W. 3 had not stated in the course of investigation that the appellant Gourang caught hold of the deceased and that the appellant Maheswar dealt a blow on the deceased by means of the crow-bar, as had been deposed to by him at the trial. He had not stated in the course of investigation that the appellant Maheswar had assaulted P. Ws. 1 and 8 with a crow-bar, as testified by him in the court or that the co-accused Bharat and Prafulla brandished lathis, as deposed to by him while he had claimed to be a witness with regard to the assault on the deceased by the appellant Maheswar when he deposed at the trial, he had stated to the Investigating Officer that when he came to the spot, he had found the deceased lying on the ground with head injury. P. W. 6 had deposed in the court, although he had not stated so in the course of investigation, that the co-accused Bharat called aloud and that the appellant Maheswar with a crow-bar, the co-accused Prafulla with a lathi and the appellant Gouranga came to the scene. According to him, he had not made any statement about the occurrence to anyone and had for the first time spoken about the occurrence in the Court and he had not made any statement in the course of investigation. According to him, he had not made any statement about the occurrence to anyone and had for the first time spoken about the occurrence in the Court and he had not made any statement in the course of investigation. P. W. 7, who had contested the co-accused Prafulla for the Ward Membership in the Panchayat election, had not stated in the course of investigation, as deposed to by him in the Court, that the co-accused Bharat called his brother and that the appellant Maheswar and Prafulla came to the spot. In his statement in the course of investigation, he had not named the co-accused Prafulla in any connection. He had not stated to the Investigating Officer that the appellant Maheswar had assaulted P. W. 6 about which evidence had been given by him in the Court. On the other hand, he had stated in the course of investigation that Sarat Pani had dealt a lathi blow on the head of P. W. 8. He had not named Niranjan Pani (P. W. 1) in his statement under S. 161 of the Criminal P. C. in any connection. P. W. 8 had stated in the course of investigation that he could not know who assaulted P. W. 1 while testifying in the Court that the appellant Maheswar assaulted him. He had not stated to P. W. 14 during the investigation that the appellant Gourang had caught hold of the deceased. He had not even uttered the names of the appellant Gourang and the co-accused Prafulla in his statement to the Investigating Officer. He had stated in the course of investigation that the appellant Maheswar had caught hold of the deceased, a statement which was disowned by him during the cross-examination. P. W. 9 had stated to the Investigating Officer that the co-accused Bharat had given a blow to P. W. 1 with a small crow-bar. This was not his evidence in the Court. ( 15 ) THE aforesaid discussion of the evidence and the prevaricating statements made by the witnesses to the occurrence would clearly show that their evidence could not be accepted in view of the irreconcilable and inconsistent statements made by the witnesses at the trial and in the course of investigation. This was not his evidence in the Court. ( 15 ) THE aforesaid discussion of the evidence and the prevaricating statements made by the witnesses to the occurrence would clearly show that their evidence could not be accepted in view of the irreconcilable and inconsistent statements made by the witnesses at the trial and in the course of investigation. As their evidence would show, they had scant regard for truth and had departed from their statements made in the course of investigation with the evident purpose of bolstering up the case of the prosecution against the accused persons. While they had not even implicated some of the accused persons at the stage of investigation, they did not hesitate to implicate them in such grave and heinous crimes including the offence of murder punishable with death. The prevaricating and inconsistent statements made by P. Ws. 1 to 9 at different stages would bring about their condemnation. They seem to be thoroughly unreliable witnesses and no part of their evidence can safely be accepted. ( 16 ) THE version of the defence narrated in the earlier part of this judgment would not only get support from the report made by Sarat about which P. W. 14 had testified, but also from the seizures of brick-bats from places in front of the houses of some of the accused persons and the fact that from the side of the accused persons and the members of their families, as many as eight persons had sustained injuries as noticed by the doctor (P. W. 12) and injured persons included the co-accused Bharat Pani, the appellant Maheswar Pani, his wife Malati, the wife of co-accused Prafulla and the co-accused Prafulla. There could be no doubt from the evidence and the circumstances of the case that the aforesaid accused persons and others had sustained injuries during the same occurrence. The injuries on the persons of the appellant Maheswar and the co-accused and others had not been explained by the prosecution. The prosecution witnesses to the occurrence had, on the other hand, pleaded ignorance as to how the appellant Maheswar and the other persons from his side came by the injuries. The injuries on the persons of the appellant Maheswar and the co-accused and others had not been explained by the prosecution. The prosecution witnesses to the occurrence had, on the other hand, pleaded ignorance as to how the appellant Maheswar and the other persons from his side came by the injuries. No doubt, the prosecution is not obliged to explain injuries found on the persons of some of the accused persons in every case, but in a case of this nature where there had been attack and counter attack and the evidence would give an indication that the party of the complainant were the aggressors, the non-explanation of the injuries found on so many persons including the appellant Maheswar which were likely to have been caused by the complainant's party would be a circumstance in support of the defence taken by the appellants and the co-accused persons. In view of the other conclusions recorded by us in the foregoing paragraphs, it would not be necessary, in our view, to go further into the question and find out as to how far and to what extent adverse inference should be drawn against the prosecution for non-explanation of the injuries on the appellant Maheswar and the other persons named above. ( 17 ) WE thus find that none of the charges had been brought home to any of the accused persons and that they were entitled to an acquittal. ( 18 ) IN the result, the appeals succeed and the same are allowed. The orders of conviction and sentences passed against the appellant Maheswar under Ss. 302 and 324 of the Penal Code are set aside. The appellant Maheswar be set at liberty forthwith. The order of conviction passed against the appellant Gouranga under S. 341 of the Penal Code and the sentence passed against him thereunder are set aside. He is discharged from his bail bond. R. C. PATNAIK, J. : - I agree. Appeals allowed. .