B. K. BEHERA, J. ( 1 ) ARISING out of same judgment and order, these two appeals have been heard together and will be governed by this common judgment. ( 2 ) THE appellants stood charged under section 148 of the Indian Penal Code (The Codet, for short) for being members of an unlawful assembly in prosecution of their common object, viz. , to assault Ramesh Chandra Samantray (to be referred to hereinafter as the deceased), being armed with deadly weapons, such as, pharsas, bhujali, knife, bicycle chains and lathis, which, used as weapons of offences, were likely to cause death and committed rioting on June 14, 1980, at Belpahar in the district of Sambalpur. All of them also stood charged for having committed murder by intentionally or knowingly causing the death of the deceased in furtherance of their common object under section 302 read with section 149 of the Code on the same day. ( 3 ) THE appellants, it was alleged, belonging to a labour union of which the appellant Gyan Patnaik was the leader, which was hostile to the labour union headed by Chiranjilal Agarwala (P. W. 21), had been waiting near Golai Chhak in three batches, being armed with dangerous instruments, in the early hours of June 14, 1980, for the deceased to come on his way to the Belpahar Refractory (to be described hereinafter as factoryt) where he had been working. When the deceased, in company with Bharat Chandra Baraj (P. W. 16), reached that spot, the appellant Gyan Patnaik called out the other appellants and he dealt a blow with the pharsa he was holding on the head of the deceased who fell down crying aloud. The assault on the person of the deceased by the other appellants followed with the instruments they had. This occurrence bad been witnessed by Maksud Ali (P. W. 3), Raghunath Das (P. W. 6), Dandapani Swain (P. W. 9), Bharat Chandra Baraj (P. W. 16), Kartik Mohanty (P. W. 17) and Naba Kishore Sahu (P. W. 20 ). The last named person was the first informant. Of these witnesses to the occurrence, P. Ws. 3, 6, 9, 16 and 20 were workers in the factory and they had either been proceeding towards the factory to join their duties or returning from the factory on finishing their shifts. The last named person was the first informant. Of these witnesses to the occurrence, P. Ws. 3, 6, 9, 16 and 20 were workers in the factory and they had either been proceeding towards the factory to join their duties or returning from the factory on finishing their shifts. P. W. 17 had witnessed the occurrence, as testified by him, while he had gone to Guest house at about 5. 30 a. m. to realise his dues for the fish supplied by him to the Guest House Canteen earlier on credit. After the assault with dangerous instruments on the person of the deceased, the latter was carried to the hospital at Belpahar in the vehicle belonging to the factory of which Narsingh Pradhan (P. W. 1) was the driver, where, on examination, the deceased was declared to be dead. On the basis of the first information report lodged by P. W. 20, investigation followed in the course of which autopsy over the dead body of the deceased was conducted after inquest was held, witnesses were examined, some seizures were affected and on the completion of investigation, a charge-sheet was placed. ( 4 ) THE plea of the appellants was one of denial and false implication. According to them, they were nowhere near the scene and have falsely been involved by the witnesses, who belonged to a hostile faction and who were on inimical terms with them, having been set up by Chiranjilal Agarwala (P. W. 21 ). ( 5 ) WHILE the prosecution had examined twenty-five witnesses to bring home the charges to the appellants, two witnesses had been examined for the defence. ( 6 ) AS earlier indicated, P. Ws. 3,6, 9, 16, 17 and 20 had been examined as the witnesses to the occurrence and they had involved the appellants with the commission of the offences with which they stood charged. P. W. 1 was the driver of the vehicle in which the deceased in an injured state had been carried to the hospital where he was first seen by the Pharmacist (P. W. 2) and then by Dr. Nayak (P. W. 5) who declared the death of the deceased. P. W. 1 was the driver of the vehicle in which the deceased in an injured state had been carried to the hospital where he was first seen by the Pharmacist (P. W. 2) and then by Dr. Nayak (P. W. 5) who declared the death of the deceased. P. W. 4 was the doctor who had conducted the autopsy and had noticed a number of anti-mortem injuries on the person of the deceased, sufficient in the ordinary course of nature to came death, as per the postmortem report (Ext. 11 ). P. W. 7, a Revenue Inspector, had prepared the sport map (Ext. 4) P. W. 8 was in charge of the Station Diary of the Belpahar Police Out-Post on January 17, 1980 when P. W. 21 had gone there and lodged a report. This had been admitted in evidence to show the previous enmity and to establish a motive for the commission of the offences P. Ws. 10 and 11 were witnesses to the seizures of blood-stained earth from the spot, two bicycle chains (M. Os. II and III) and an arrow (M. O. IV ). No witness to the occurrence had identified M. Os. II and III to be the bicycle chains which had been used for assaulting the deceased. The recoveries of these articles were, therefore, of no consequence. P. W. 12 was a witness to the inquest held as per the inquest report (Ext. 10 ). P. W. 13 had taken the photographs of the place of occurrence and had proved Exts. 11 to 14, the negatives of the photographs and Exts 11/1 to 14/1, the photographs of the spot. P. W. 14 had been examined to substantiate the case of previous enmity between the two groups and had proved two reports (Exts. 15 and 16) scribed by P. W. 21 at the instance of the deceased in January, 1980 in respect of previous incidents between the parties. P. W. 15, the widow of the deceased, had testified about the previous enmity between the two groups. P. W. 18, a Constable, had taken the dead body of the deceased for the purpose of autopsy and had identified it prior to the post-mortem examination. P. W. 19 was the Sub-divisional Judicial Magistrate who had conducted the test identification parade on August 8, 1980 as per his report, Ext. P. W. 18, a Constable, had taken the dead body of the deceased for the purpose of autopsy and had identified it prior to the post-mortem examination. P. W. 19 was the Sub-divisional Judicial Magistrate who had conducted the test identification parade on August 8, 1980 as per his report, Ext. 17, wherein Raghunath Das (P. W. 6) had identified the appellants other than the appellants Sarangadbar Sahu and Kartik Bhoi and P. W. 17 had identified the appellants Gyan Patnaik, Ratikanta Rout, Bibhisen Rout, Krishna Babadur and Rabi Singh among the suspects and the other persons mixed up with them. Chiranjilal Agarwala (P. W. 21) bad spoken about the previous strained relationship between the two groups and about the previous reports and proceedings between the parties. P. Ws. 22 to 25 were the four police officers who had investigated into the case at different stages. ( 7 ) OF the two witnesses examined for the defence, D. W. 1 had testified that the attendance of P. W. 20 in TCT shift duty on June 13, 1980 had not been marked in the Time Office. This evidence had been led by the defence to show that P. W. 20 could not have witnessed the occurrence while he was returning from his duty, as claimed by him. D. W. 2 was the Officer-in-Charge of the Belpahar Police Out-Post who bad deposed that on January 10, 1980 he had received an oral report from the deceased which he had reduced into writing and he had proved the signature of the deceased (Ext. U) therein. According to him, he had investigated into the case and had placed a charge-sheet under section 307 of the Code. This was with reference to a previous incident. ( 8 ) ON a consideration of the evidence and upon hearing the learned counsel for both the sides, who, as would appear from the record and the impugned judgment and order, had elaborately addressed the trial court, the learned trial Judge has held that the charges against the appellants have been established. Accordingly the appellants have been convicted under section 302 read with section 149 of the Code and sentenced thereunder to undergo imprisonment for life. Accordingly the appellants have been convicted under section 302 read with section 149 of the Code and sentenced thereunder to undergo imprisonment for life. For their conviction under section 148 of the Code, the appellants have been sentenced to undergo rigorous imprisonment for a period of one year with a direction that the substantive terms of imprisonment are to run concurrently. ( 9 ) MR. B M. Patnaik, appearing for the appellants in Criminal Appeal No. 173 of 1981 and Mr. S. Mohapatra, appearing for the appellants in Criminal Appeal No. 170 of 1981, have assailed the findings recorded against the appellants by the trial court. It has been contended on behalf of the appellants that the actual first information report had been suppressed and after undue and unexplained delay, a belated report had been lodged which was treated to be the first information report. As submitted, the witnesses to the occurrence had not been examined promptly in the course of investigation and their evidence was not only of a highly partisan character, but had bristled with material inconsistencies and discrepancies and was not in consonance with the medical evidence. It has strenuously been urged that there are materials to indicate the mala fides on the part of the investigating agency which has foisted a false case against the appellants at the behest of Chiranjilal Agarwala (P. W. 21 ). It has also been urged that no common object among the culprits had been established and consequently their conviction for forming an unlawful assembly and for committing the murder of the deceased in furtherance of their common object has not been well-founded. It has been submitted on behalf of the State that on the basis of clear and acceptable evidence, the trial court has found the prosecution case to have been established in its entirety and there is no justifiable reason for interference. ( 10 ) IT has been established from the evidence, a, dealt with by the trial court in details, that bitter blood was the ruling relationship between the two rival labour groups, one headed by the appellant Gyan Patnaik and the other by Chiranjilal Agarwala (P. W. 21 ). There had been many previous incidents for which reports and counter reports had been made by both the groups and there had been criminal cases and proceedings between the parties. There had been many previous incidents for which reports and counter reports had been made by both the groups and there had been criminal cases and proceedings between the parties. The allegation of the prosecution that there was bad blood between the two groups had been established not only by the oral evidence adduced by both the parties, but also by sufficient documentary evidence. The highly strained relationship could prompt the appellants to commit the crime and it could as well prompt the rival group to falsely involve the appellants. It must, however, be kept in mind that motive, however adequate, cannot sustain a criminal charge and conversely, if there is clear and cogent evidence pointing to the guilt of an accused person, absence of proof of motive is not of much consequence as some times, motive is known only to the perpetrator of the crime and to no one else. It is, therefore, to be seen as to whether the prosecution has been able to bring home the charges to the appellants by the evidence adduced at the trial. ( 11 ) WHEN the murder of a person belonging to a faction has been committed in a locality having two rival groups, often enough, a court has to deal with the evidence of a partisan character, as in such a case witnesses coming forward to depose against persons of the other group would normally belong to the rival group. The evidence of partisan or interested witnesses has to be examined with great care before its acceptance, but the mechanical rejection of such evidence on the sole ground that it is of a partisan character would lead to failure of justice. Judicial approach has to be cautious in dealing with such evidence. In the instant case, of the witnesses to the occurrence, all except P. W. 17, who had been examined after considerable delay in the course of investigation, to which aspect we would come at the appropriate stage, did belong to a faction hostile to that of the deceased. The faction to which the witnesses belonged was being led by P. W. 21, who, as urged on behalf of the appellants, had got the case foisted to unseat the appellant Gyan Patnaik from his position to capture the labour union. The evidence of these witnesses, therefore, has to be very carefully scrutinised. The faction to which the witnesses belonged was being led by P. W. 21, who, as urged on behalf of the appellants, had got the case foisted to unseat the appellant Gyan Patnaik from his position to capture the labour union. The evidence of these witnesses, therefore, has to be very carefully scrutinised. ( 12 ) THE learned counsel for both the sides, besides orally addressing the Court, have submitted copious written notes. A number of decisions of the Supreme Court have been cited at the Bar with regard to the acceptance or rejection of the evidence led at the trial. It may, however, be kept in mind that there can be no authority on a question of fact and whether the evidence of a witness is to be accepted or rejected would depend on the facts and circumstances of each case. In Charan Singh und others v. State of Punjab,1 the Supreme Court has observed : - ( 13 ) IN the context of what value should be attached to the statements of the witnesses examined in this case, our attention has been invited by the learned counsel for the appellants to a number of authorities. We have refrained from referring to those authorities because, in our opinion, reference to those authorities is rather misplaced. The fate of the present case like that of every other criminal case depends upon its own facts and the intrinsic worth of the evidence adduced in the case rather than what was said about the evidence of witnesses in other decided cases in the context of facts of those cases. The question of credibility of a witness has primarily to be decided by referring to his evidence and finding out as to how the witness has fared in cross-examination and what impression is created by his evidence taken in the context of the other facts of the case. Criminal cases cannot be put in a strait-jacket. Though there may be similarity between the facts of some cases, there would always be shades of difference and quite often that difference may prove to be crucial. The same can also be said about the evidence adduced in one case and that produced in another. Decided cases can be of help if there be a question of law like the admissibility of evidence. The same can also be said about the evidence adduced in one case and that produced in another. Decided cases can be of help if there be a question of law like the admissibility of evidence. Likewise, decided cases can be of help if the question be about the applicability of some general rule of evidence, e. g. , the weight to be attached to the evidence of an accomplice. This apart, reference to decided cases hardly seems opposite when the question before the court is whether the evidence of a particular witness should or should not be accepted. TI The evidence of the eyewitnesses adduced by the prosecution to establish the charges is to be closely scrutinised in the light of the principles referred to above keeping in mind the fact that the evidence other than that of P. W. 17 was of a partisan character. ( 14 ) IT is not disputed at the Bar that the deceased had died a homicidal death. The doctor (P. W. 4), who had conducted the autopsy, had noticed external injuries on the person of the deceased and had, on dissection, noticed haematoma on the left side of the skull, depressed fracture on the parietal bone and tearing of the durameter. In addition, the brain matter had protruded. The injuries, according to him, were anti-mortem in nature and might have been caused by hard and blunt weapons. As would appear from his evidence, the bruises and the wound on the left parietal bone which bad caused the internal injuries were sufficient in the ordinary course of nature to cause the death of the deceased while the other twelve injuries were simple in nature, some of which were superficial ones. The finding recorded by the trial court with regard to the homicidal nature of the death of the deceased is well-founded. ( 15 ) COMING next to the complicity of the appellants, no incriminating articles had been recovered from their person or possession which had been identified to be the weapons of attack. Vague statements had been made that instruments like the bhujali (M. O. I) and the two bicycle chains (M. Os. II and III) seized in the course of investigation had been used. But no one had specifically identified by saying that any of these articles was in the hands of any particular appellant and had been used by him. Vague statements had been made that instruments like the bhujali (M. O. I) and the two bicycle chains (M. Os. II and III) seized in the course of investigation had been used. But no one had specifically identified by saying that any of these articles was in the hands of any particular appellant and had been used by him. Apart from the element of motive to which reference has been made which could prompt the appellants to commit the murder of the deceased or prompt the rival group to falsely involve the appellants, the case depends on the evidence of the witnesses to the occurrence, namely, P. Ws. 3, 6, 9, 16, 17 and 20, coupled with the medical evidence. On a consideration of their evidence, the learned trial Judge has accepted it. The question for consideration would be as to whether the evidence of these witnesses could safely be accepted and made the foundation of an order of conviction against the appellants under sections 148 and 302 read with section 149 of the Code. ( 16 ) THE essence of the offence of an unlawful assembly is the common object of the persons forming it. Whether the object is in their minds when they come together or it occur to them on the spot is not material. It is, however, necessary that the object should be common to the persons forming the assembly and they should all be aware of it and concur in it. There is a difference between object and intention. Though the object of an assembly is common, the intentions of the members may differ. An unlawful object may develop after the people gather at the scene of offence. It is enough if each of the members has the common object in view and their number is five or more and that they act as an assembly to achieve that object. To constitute an unlawful assembly, the common object of the assembly must be an immediate one to be carried into effect forthwith. Mere presence of a person at the time of commission of rioting is not sufficient to show that he was a member of the unlawful assembly which committed the offence. (See Anam Pradhan and others v. The State2 ). Mere presence of a person at the time of commission of rioting is not sufficient to show that he was a member of the unlawful assembly which committed the offence. (See Anam Pradhan and others v. The State2 ). ( 17 ) IN the instant case, two of the appellants, namely, Gyan Patnaik and Rabi Singh, were alleged to have been armed with pharsas and the appellant Krishna Bahadur was alleged to have been armed with a bhujali. These were sharp cutting instruments. Four of the appellants, namely, Harihar, Mukunda, Bibhisan and Sarangadhar were alleged to have bicycle chains with them. The other appellants, namely, Ratikanta, Kartik, Kanheilal, Mahendra, Sanatan and Krupa had lathis, as the prosecution sought to establish. Evidence had been led that after the first blow was dealt by the appellant Gyan Patnaik by means of a pharsa on the forehead of the deceased, he fell down and thereafter all the appellants surrounded the deceased and assaulted him to death. As already stated, only two injuries which had caused internal injuries were fatal in nature and all the injuries were simple in nature and evidently some of the other injuries were of a superficial character. If the appellants had the common object of committing the murder of the deceased, it was likely that they would have dealt some decisive blows on his person, armed as they were with dangerous instruments and would not have caused superficial and simple injuries by means of lathis, pharsas, bhujali and bicycle chains. Although four of the appellants were armed with bicycle chains, as alleged the doctor had noticed but three injuries, a bruise on the right upper back, a bruise on the left flank and a bruise on the left side of the chest and abdomen which could be caused by bicycle chains, as opined by him. Thus at least one of the appellants bad not used the bicycle chain which he was alleged to have had with him. Thus at least one of the appellants bad not used the bicycle chain which he was alleged to have had with him. If indiscriminate use of lath is and other instruments bad been made, three of which were sharp cutting ones and the sharp sides of the pharsas and bhujali had hit the deceased as earlier stated by the witnesses to the occurrence in the course of investigation which they had given a go-by having said in their evidence that they were not quite sure as to whether the sharp sides or blunt side of these instruments hit the deceased, evidently to make their evidence consonent with the medical evidence, because no incised or any other cut would have been noticed on the person of the deceased by the doctor, a number of incised and other serious wounds would have been caused on the person of the deceased. The appellants were thirteen in number. Fourteen external injuries had been noticed by the doctor of which the injuries Nos. 1 and 2 on the head could be caused by one stroke, as opined by him. There thus remain twelve injuries all of which were simple in nature, As would be clear from a critical examination of the evidence of witnesses to the occurrence all the appellants had not been armed, as alleged by the prosecution. The deceased had been surrounded and assaulted, as sought to be established. It could be that some of the appellants were not assailants at all and had not attempted to assault on the person of the deceased. Although the witnesses to the occurrence bad deposed that the appellant Gyan Patnaik had dealt a pharsa blow on the forehead of the deceased after which he fell down, they had as well deposed that the appellant Krishna Bahadur had used bhujali and the appellant Rabi Singh had used pharsa in assaulting the deceased. In the circumstances in which the witnesses had been placed, it would not be possible for them to fix up any particular assault on the person of the deceased to have been caused by any particular appellant. In the circumstances in which the witnesses had been placed, it would not be possible for them to fix up any particular assault on the person of the deceased to have been caused by any particular appellant. Regard being had to the alleged acts of the appellants and the nature and number of the injuries caused on the person of the deceased and the other circumstances stated above, it would not be legal, reasonable and proper to hold that the appellant had been actuated by the common object to commit the murder of the deceased. ( 18 ) WE would next proceed to examine as to whether and how far the prosecution had been able to establish by the evidence of P. Ws. 3, 6, 9, 16, 17, and 20 that the appellants had assaulted the deceased to death. ( 19 ) OF the witnesses to the occurrence, except P. W. 17, who came to the scene at the stage of investigation as late as on August 1, 1980, the others belonged to a faction hostile to the appellant Gyan Patnaik and the other appellants who were said to be his supporters and had joined hands with him in killing a person of the rival group. The learned Government Advocate has urged that there was no reason aslo why P. W. 17, whose evidence had intrinsic worth, should have falsely implicated the appellants. While appreciating the evidence of witness in a criminal trial, it would be a wrong approach to accept his evidence merely because of his disinterestedness. The court has to see as to whether the evidence of a witness is worthy of acceptance. If it is, absence of interestedness on his part would lend assurance to his testimony. It is no part of the defence to show as to why a false case has been foisted against an accused person or as to why a witness bas come forward to depose against him. Mysterious is the working of the human minds. Often enough, it would not be possible for an accused person to say as to why a particular person has joined the rival group and has deposed against him. In this connection, reference may be made to the observations of the Supreme Court in Shankarlal Gyarasilal Dixit v. State of Maharashtra. Mysterious is the working of the human minds. Often enough, it would not be possible for an accused person to say as to why a particular person has joined the rival group and has deposed against him. In this connection, reference may be made to the observations of the Supreme Court in Shankarlal Gyarasilal Dixit v. State of Maharashtra. 3 In paragraph 33 of the judgment, their Lordships of the Supreme Court observed and held: Our judgment will raise a legitimate query: If the appellant was not present in his house at the material time, why then did so many people conspire to involve him falsely? The answer to such questions is not always easy to give in criminal cases. Different motives operate on the minds of different persons in the making of unfounded accusations. Beside, human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions. It is to be seen as to whether the evidence of P. W. 17 can be accepted. ( 20 ) THE occurrence had allegedly taken place sometime between 6. 00 a. m. and 6. 05 a. m. when the night shift in the factory had ended and the morning shift from 6. 00 a. m. to 2. 00 p. m. was to commence. This was on June 14, 1980. Investigation was taken up on the same day and continued for a length of time through a number of Investigating Officers and the Crime Branch of which P. W. 23 was an officer came to the scene in the second part of July, 1980. It was then that P. W. 24, then investigating into the case with the aid and on the advice of P. W. 23, attempted to find out, as the evidence of P. Ws. 23 and 24 would show, as to whether there might have been a chance witness to the occurrence. They discovered one and P. W. 17 was examined in the course of investigation by P. W. 24 on August 1, 1980. ( 21 ) DESCRIBING about what he had seen, P. W. 17 had deposed thus: I went to the Oak Bungalow and I stood near the gate and after opening the gate I looked back out of suspicion. At that time, I found accused Gyana Patnaik along with 4 to 5 persons jumped into Gopabandhu Park. ( 21 ) DESCRIBING about what he had seen, P. W. 17 had deposed thus: I went to the Oak Bungalow and I stood near the gate and after opening the gate I looked back out of suspicion. At that time, I found accused Gyana Patnaik along with 4 to 5 persons jumped into Gopabandhu Park. They came out from the Gopabandhu Park being armed with pharsas, bhujali, cycle chains and lathis. They came towards the Golei Chhak. The other 4 to 5 persons who were there joined them. They roamed about for a while and accused Gyana Patnaik kept the pharsa towards his back side inside the banian. At that time R. C. Samantray was coming from the Railway Line and ahead of him another person was coming. Both of them were coming walking. I do not know the name of the other person who was coming with R. C. Samantray. I can identify the person who was coming with R. C. Samantray if he is shown to me. When R. C. Samantray reached the Golei Chhak accused Gayna Patnaik asked others Dhain Asha. There is a Mahua tree near the Golei Chhak. Then accused Gayna Patnaik came from behind R. C. Samantray and gave a pharsa blow on the head of R. C. Samantray. When accused Gyana Patnaik called Dhain Asha the other persons had come and surrounded Ramesh Chandra Samantray. After receiving the blow of Gyana Patnaik, R. C. Samantray cried out Maalo and fell down. After R. C. Samantray fell down the others surrounded him and assaulted. P. W. 17 had disowned his statement made under section 164 of the Code of Criminal procedure that the appellant Gyana Patnaik and other assailants had left the arms on the spot. This witness had claimed to have seen the occurrence while he was at the gate of the Guest House having gone there for collection of money for the fish supplied by him on credit to the Guest House earlier. Interestingly enough, as his own evidence would show, after he saw the occurrence, he did not take any steps for collection of his dues. His evidence was that he was to go to his village on the same day and he proceeded in the evening. Interestingly enough, as his own evidence would show, after he saw the occurrence, he did not take any steps for collection of his dues. His evidence was that he was to go to his village on the same day and he proceeded in the evening. If he had gone to collect his dues from the Guest House, he would normally and naturally have met some persons there to collect his dues. Instead, he returned from the Guest House. According to him, he had again gone to the Guest House at about 4. 00 p. m. on that day for collection of his dues and he had stated in his cross-examination that he had informed Biswanath, an employee in the Guest House, about the occurrence. As the evidence of P. W. 22 would show, he had examined the cook Biswanath. This person was not cited as a witness evidently because he had not been able to give any clue. The evidence of P. W. 22 that Biswanath did not throw any light on any aspect of the prosecution case would be rendered inadmissible being hit by section 162 of the Code of Criminal Procedure, but the fact that Biswanath was not cited as a witness for the prosecution would certainly give an indication that he had not been able to throw any light on any material aspect of the case of the prosecution. P. W. 24 had stated that he had verified from the person in charge of the Guest House as to whether P. W. 17 had been supplying fish to the Guest House and as to whether some dues of his were outstanding. In the next breath, however, P. W. 24 blurted out: TIJ have not examined the person in charge of the guest house whether Kartika Mohanty was supplying fish to the Guest House or he has any dues from the Guest House. I have not examined the persons in charge of the Guest House and my case diary does not disclose that I verified from the person in charge of the Guest House. I have not examined the persons in charge of the Guest House and my case diary does not disclose that I verified from the person in charge of the Guest House. The Inspector of the Crime Branch (P. W. 23) was asked as to whether he had verified the statements of P. W. 17 that he had been supplying fish to the Guest House and that he was to get his dues for the fish supplied on credit and P. W. 23 had stated that he did not make any verification and believed the statements of P. W. 17 to be true. P. W. 23 had stated thus: I was present at the time of examination of Kartika Mohanty. Kartika Mohanty was examined at the Guest House. I have seen the statement of Kartika Mohanty. After I took over charge of this case, I went through the statement of Kartika Mohanty. After perusal of the statement of Kartika Mohanty I believed his statement. So I did not verify from the inmates of the Guest House and the Guest House was in arrear dues of Kartika Mohanty. ( 22 ) THE suggestion of the defence was that P. W. 17 Kartika had been working as a private servant in the house of a Sub-Inspector of Police who had taken some part in the investigation of the case. Our attention has been invited to the fact that this Sub-Inspector of Police was cited as a witness for the prosecution and had figured as a witness in the list of witnesses on four dates of trial, but on April 30, 1981, the prosecution declined to examine him as a witness. It has been submitted on behalf of the appellants that the prosecution took this step as otherwise the truth as to how and why P. W. 17 was arranged as a false witness would have come to light. The Sub-Inspector of Police has not been examined and he should not be condemned unheard. But as the evidence of P. W. 17 itself would show, it was highly unlikely that he would have gone near the Guest House for collection of his dues in such early hours of the day and without taking any step in this regard, comes back and goes again at about 4. But as the evidence of P. W. 17 itself would show, it was highly unlikely that he would have gone near the Guest House for collection of his dues in such early hours of the day and without taking any step in this regard, comes back and goes again at about 4. 00 P. M. The statements of P. W. 17, as indicated above, had not properly been verified by the investigating agency although he had figured as a witness long after the occurrence, but his statements were glibly accepted and he was cited as a witness for the prosecution. ( 23 ) THE evidence of P. W. 17 that he had gone to the Guest House for collection of his dues and that he had been supplying fish on earlier occasions to the Guest House on credit, if true, could be, but had not been corroborated by the evidence of any employee of the Guest House. ( 24 ) NO reasonable explanation had been given by P. W. 17 as to how and why he made such a belated disclosure about a murderous assault seen by him on June 14, 1980 and spoken to by him for the first time on August 1, 1980. His statement that he bad informed Biswanath of the Guest House on the same day about the occurrence is not to be accepted, as such a statement could be corroborated by Biswanath, but had not been. The evidence of P. W. 17 would show that prior to his examination in the course of investigation on August 1, 1980, he had told none about the occurrence. There was no reason as to why he would be afraid of anyone. There was no evidence that any of the appellants had threatened him with serious consequences if he disclosed the occurrence. At the relevant time, he was said to be at the gate of the Guest House. Immediately after the occurrence, a number of persons gathered at the scene and the investigation was taken up by the Police authorities. Even accepting the evidence of P. W. 17 that he left for his village in the evening, he was present at Belpahar for the whole day. He had admitted that although the police people were pet rolling on the day, he did not inform them about the occurrence. Even accepting the evidence of P. W. 17 that he left for his village in the evening, he was present at Belpahar for the whole day. He had admitted that although the police people were pet rolling on the day, he did not inform them about the occurrence. He did not report about the occurrence to any authority on that day. He had stated: I remained silent on the date of occurrence. Until I was examined by the Police. I did not report to any authority. After being asked by the Police I narrated the incident to the Police. He had further stated: I did not tell my house owner about the occurrence or to Chiranjilal. I did not tell Behera Babu about the occurrence. I did not say anything to the Police on the day of the occurrence. I cannot say to whom I told about the occurrence for the first time. I told about the occurrence after I returned from my village. ( 25 ) A person witnessing a murderous assault and not disclosing about what he had seen may not be deemed to be an accomplice in the eye of law, but his evidence is to be very closely scrutinised. (See Venireddy Satyanarayan Reddy and others v State of Hyderabad. 4) The evidence of a witness who has claimed to have seen a murder, but has not disclosed the occurrence soon thereafter and has not offered any reasonable explanation therefore should not be accepted.) Reference in this connection may be made to the cases reported in Duvvur Dasaradharmareddy v. The State of Andhra Pradesh,5 Babuli v. State of Orissa,6 State of Orissa v. Mr. Brahmananda Nanda,7 Bhagwan and another v. State of Madhya Pradesh8 and Sonia Behera v. State of Orissa9 Judged in the light of the principles laid down by the Supreme Court in the aforesaid cases, it would be extremely hazardous to accept the evidence of P. W. 17 in the instant case although the defence has not been able to show as to why he had implicated the appellants. ( 26 ) FOR the aforesaid reasons, we are not prepared to place any reliance on the evidence of P. W. 17 and we are constrained to observe that the learned trial Judge should have done well in critically examining the evidence of this witness because of the highly belated disclosure made by him and thrown out his evidence instead of accepting it. ( 27 ) WE would next examine the evidence of the other eyewitnesses, viz, P. Ws. 3, 6, 9, 16 and 20. On a earful examination of the record, we notice highly suspicious features with regard to the lodging of the first information report and the examination of the witnesses to the occurrence besides the seizures of incriminating articles on the spot. Before we examine these aspects, we propose to discuss the evidence of the witnesses to the occurrence with regard to the assault on the person of the deceased. ( 28 ) MAKSUD Ali (P. W. 3) had given evidence that while he was going to the factory to attend his duty in AT shift, which according to the evidence was from 6. 00 a. m. to 2. 00 p. m. , he saw the appellants Gyan Patnaik, Harihar Ray, Krushna Bahadur and Ratikant standing near the Golei Chhak when the appellant Gyan Patnaik had a pharsa, the appellant Harihar had a bicycle chain, the appellant Krushna Bahadur a bhujalia a sharp cutting instrument and the appellant Ratikanta had a lathi. He also saw the appellants Rabi Singh with a pharsa, Mukund with a bicycle chain, Bibhisan with a bicycle chain. Kanheilal with a lathi and Kartik with a lathi near the Golei Chhak. He had also seen the other appellants Mahendra with a lathi, Sarangadhar with bicycle chain, Sanatan with a lathi and Nrupa with a lathi nearby. According to him, the deceased at that time proceeded in his front at a distance of about twenty feet with Bharat Baraj (P. W. 6) proceeding ahead of him and they were proceeding to join their duties. Describing as to what then happened, P. W. 3 had deposed thus: At that time at first accused Gyana Patnaik called three other accused persons who were with him, and accused Gyana Patnaik gave a pharsa blow (Chot) by coming in front of R. C. Samantray. Describing as to what then happened, P. W. 3 had deposed thus: At that time at first accused Gyana Patnaik called three other accused persons who were with him, and accused Gyana Patnaik gave a pharsa blow (Chot) by coming in front of R. C. Samantray. The three other accused persons who were with accused Gyana Patnaik obstructed R. C. Samantray. After receiving the blow from accused Gyana Patnaik R. C. Samantray cried out Maa Lo and fell down on the ground. Thereafter all the accused persons surrounded R. C. Samantray and the deceased was not visible to me. All the accused persons assaulted R. C. Samantray with their respective weapons. I cannot say which other accused had assaulted as in which weapon to Re. Samantray. At the time of this assault 1 was at a distance of 20 feet from R. C. Samantray. I saw the accused persons assaulting R. C. Samantray with their respective weapons. It was duty time and many people gathered and as such the accused persons went away with their arms as they found R. C. Samantray become unconscious. By that time the persons that were coming to duty were myself, Karim Khan, Naba Kishore, R. N. Das, Dandapani Swain and many others were found on the spot. ( 29 ) WHILE at the trial, he had given evidence that the appellant Gyan Patnaik called out the other persons to come, at the stage of investigation he had stated that the first four appellants named by him had all called out the other persons to come. He had not seen as to whether the appellant Gyan Patnaik assaulted the deceased with the sharp side of the pharsa or with its blunt edge. This statement he had evidently made to explain away the medical evidence which indicated that there was no incised wound on the person of the deceased. He had, however, stated at the stage of investigation that the appellant Gyan Patnaik had given a cut injury (Hani Debarut) by a pharsa. He had not stated at the stage of investigation, as deposed to by him in the court, that the appellant Rabi Singh had assaulted the deceased with a pharsa. According to him, he did not see as to whether the appellants Krushna Bahadur and Rabi Singh gave blows on the sharp sides of their weapons. He had not stated at the stage of investigation, as deposed to by him in the court, that the appellant Rabi Singh had assaulted the deceased with a pharsa. According to him, he did not see as to whether the appellants Krushna Bahadur and Rabi Singh gave blows on the sharp sides of their weapons. These statements had been made by this witness in his evidence for the same purpose as indicated above. When some persons are armed with sharp cutting instruments and the evidence is that they dealt strokes by means of those instruments, the normal conclusion would be that they had assaulted the victim by the sharp sides of the instruments and indeed, in their statements in the course of investigation, the prosecution witnesses had stated that the assaults had been made with the sharp sides of the cutting instruments, viz. , pharsa and bhujali. But as the doctor did not notice any incised wound on the person of the deceased, the witnesses to the occurrence gave a go by as to what they had stated earlier and gave out at the stage of evidence that they did not mark as to whether assaults had been made by the sharp sides or blunt sides of the cutting instruments. These statements had deliberately been introduced at the stage of trial by the witnesses so that their evidence would be in consonance with the medical evidence. In his cross-examination, P. W. 3 had minutely stated as to the sequence in which each of the appellants assaulted one after the other in a most unnatural fashion as he was not supposed to mark minutely the sequence of assaults by each of the assailants in the circumstances in which he had been placed. ( 30 ) IN view of his admission that he did attend A shift duty on June 14, 1980 and this shift was from 6. 00 a. m. to 2. 00 p. m. the evidence of P. W. 6 that the doctor declared the deceased to be dead at about 6. 50 a. m. and the evidence of the pharmacist (P. W. 2) that the declaration of the death of the deceased was wade by the doctor at 6. 00 a. m. to 2. 00 p. m. the evidence of P. W. 6 that the doctor declared the deceased to be dead at about 6. 50 a. m. and the evidence of the pharmacist (P. W. 2) that the declaration of the death of the deceased was wade by the doctor at 6. 40 a. m. , the evidence of the Head Time-keeper (D. W. Ii that P. W. 3 attended A shift duty and the evidence on record that the employees entering the factory within five minutes of the shift are not marked late and thereafter late marking was being done and P. W. 3 had attended that A shift duty without having been marked late, the evidence of P. W. 3 that he witnessed the occurrence at about 6. 00 a. m. and that after witnessing the assault, he went near the deceased and administered water to him and thereafter went to the hospital along with the deceased, remained there till the deceased was declared dead and that he had been examined by the Investigating Officer after 6. 30 a. m. and before 8. 00 a. m. when the investigation was in the hands of P. W. 25 who admitted that he had not examined P. W. 3 or any other witness except P. W. 20 (first informant) in the morning of the day of occurrence and the statements of P. W. 3 with regard to the occurrence and subsequent vents could not safely be accepted. When this witness was examined in the course of investigation is shrouded in mystery. According to P. W. 22, he had examined P. W. 3 between 10 a. m. and 12 noon on the day of occurrence. This was not the evidence of P. W. 3 who had testified that he had been examined after 6. 30 and before 8. 00 a. m. on the day of occurrence and had later stated that he had been examined once again 3 to 4 days after occurrence. No Police Officer had testified that P. W. 3 had been examined 3 to 4 days after the occurrence. The original time sheet maintained by the factory showing the time of arrival of the employees and the period during which they remain inside the factory premises had been seized by the Investigating Officer in the course of investigation, but was not produced in the court. The original time sheet maintained by the factory showing the time of arrival of the employees and the period during which they remain inside the factory premises had been seized by the Investigating Officer in the course of investigation, but was not produced in the court. ( 31 ) THE evidence of P. W. 3 that when the appellant Gyan Patnaik assaulted the deceased with a pharsa, the other three companions of his who were near him obstructed the deceased had not been deposed to by any other witness. P. W. 3 had not stated in the course of investigation, as deposed to by him at the trial, that the appellant Gyan Patnaik stood in front of the deceased and assaulted him with the pharsa. He had stated in his cross-examination that all the appellants had surrounded the deceased and the later was Dot visible to him and he could not say which of the appellants had assaulted with what weapon on the person of the deceased. His evidence would show that he was being escorted on the dates of trial for his evidence by the Police authorities. ( 32 ) THE aforesaid discussion of the evidence of P. W. 3 would show that he was not a witness of truth and his evidence could not be relied on. ( 33 ) P. W. 6, working in the same factory at the relevant time, had claimed to have seen the occurrence while he was proceeding to attend his A shift duty in the factory. As to the occurrence, P. W. 6 had testified thus:. . . On reaching Golei Chhak I saw accused Gyana Patnaik holding pharsa and accused Krishna Bahadur was holding a Bhujali, accused Harihar Ray was holding a cycle chain accused Ratikanta Rout was holding a lathi and these four accused persons were near the Golei Chhak. Near the cement chair which is near the Golei Chhak, accused Rabi Singh was holding a pharsa and accused Bibhisen Rout was holding a cycle chain and two others were standing near Rabi Singh and Bhibhisen Rout but I cannot give their names and I can identify them. The witness has identified the two others i. e. Kanheilal Sahu and Makunda Lohat by pointing them in the dock. Seeing these accused persons I suspected and was afraid. The witness has identified the two others i. e. Kanheilal Sahu and Makunda Lohat by pointing them in the dock. Seeing these accused persons I suspected and was afraid. I proceeded ahead and stood up at a distance of 30 cubits from these accused persons. I saw Bharat Baraj and R. C. Samantray were coming from the market side and they were proceeding to the factory side. When R. C. Samantray reached the Golei Chhak accused Gyana Patnaik called out Ashare and gave one blow with the pharsa on the head of R. C. Samantray. On receiving that blow R. C. Samantray cried out Maalo and fell down on the ground and thereafter several persons had surrounded R. C. Samantray. I did not see accused Sarangadhar Sahu and accused Kartika Bhoi (pointed them out in the dock) near, that gathering or among the gathering. Accused Krishna Bahadur assaulted R. C. Samantray with a. Bhujali and accused Rabi Singh assaulted R. C. Samantray with a Jarsa, accused Bhibhisen Rout and accused Harihar Ray assaulted R. C. Samantray with cycle chains. I did not mark what other four accused persons were holding. But they also assaulted R. C. Samantray. After the assault as there was hullah the accused persons ran away with their weapons He had thus not spoken even about the presence of the two of the appellants, namely, Sarangadhar and Kartik on the sport. Although on his own showing, he did not make what weapons some of the appellants were holding, he had no hesitation in making a statement that all of them had assaulted the deceased. He had not stated at the test identification Parade as to which appellant bad been holding what weapon and bad identified some of them as the persons running a way from the spot and not as the assailants of the deceased. The evidence of the Magistrate (P. W. 19) conducting the test identification parade was that the witnesses identified the suspects as the members of the mob engaged in murdering the victim. This part of the evidence of the Magistrate may be rendered inadmissible as no statement of any of the witnesses had been recorded by him on oath under section 164 of the Code of Criminal Procedure. In this connection, reference may be made to the principles laid down in Haranath Singh v. State of Madhya Pradesh. This part of the evidence of the Magistrate may be rendered inadmissible as no statement of any of the witnesses had been recorded by him on oath under section 164 of the Code of Criminal Procedure. In this connection, reference may be made to the principles laid down in Haranath Singh v. State of Madhya Pradesh. 1 P. W. 6 had not stated before that Magistrate about the parts played by the appellants identified by him. He had identified all the appellants at the test identification parade except the appellants Sarangadhar and Kartik. His evidence is, that he himself, P. W. 3, P. W. 20 and some others had remained in the hospital till 11. 00 a. m. when the dead body of the deceased was sent for postmortem examination and from 6. 10 a. m. till 11. 00 a. m. , he had remained in the hospital. ( 34 ) THIS was at variance with the other evidence including that of P. W. 3. He had asserted that he had been examined by the Investigating Officer in the evening at 600 p. m. on the day of occurrence at the police station and that was the first time he was examined by the police agency. But P. W. 25 had not examined him and the evidence of P. W. 22 was that he had examined that eyewitnesses between 10 a. m. and 12 noon although P. W. 6 had himself stated that he had been examined at 6. 00 p. m. 34. P. W. 6 could not say who of the appellants assaulted first and who of the appellants assaulted thereafter. He had, however, no hesitation in making an omnibus statement that thirteen persons had assaulted the deceased. He could not say on which part of the head of the deceased fell the pharsa blow dealt by the appellant Gyana. It is important to keep in mind that although the first information report in this case had been lodged by P. W. 20 who had claimed to have witnessed the occurrence, the name of P. W. 6 had not figured as a witness to the occurrence therein although according to P. W. 6, he was all along present with the first informant right from the spot till the dead body was sent for post mortem examination. Apart from the fact of non-mention of his name in the first information report, his presence had not also been spoken to by P. W. 9. As already indicated, although he did not even speak about the presence of two of the appellants, namely, Sarangadhar and Kartik, he had made evidently a false statement that thirteen persons had assaulted the deceased as the number of the assailants, as the prosecution sought to establish, was thirteen. He had not testified that the appellants Mahendra and Nrupa had lathis or any other instrument with them. ( 35 ) FOR the aforesaid reasons, it would not be safe and proper to rely on the evidence of P. W. 6 with regard to the assault on the deceased by the appellants or some of them. 36. A Fitter in the factory at the relevant time, P. W. 9 was another witness to the occurrence, as claimed by the prosecution. It is important to keep in mind that on his own showing, he knew only the appellant Gyan Patnaik and did not know the other appellants. He had seen the occurrence, as testified by him, while he was proceeding to the factory fort A shift duty on a bicycle via Golei Chhak. He had deposed about the occurrence thus: While I was near the Railway Line I saw that Bharat Baraj was going ahead being followed by R. C. Samantray. I asked R. C. Samantray whether he got his cycle to which he said no. Then I asked R. C. Samantray to sit on my carrier. To that he said that he had already come near the factory and so he asked me to proceed ahead and he would follow soon. Thereafter I proceeded ahead by my cycle. While I proceeded to a distance of 15 to 20 cubits I heard a cry Ashare I looked back hearing the cry. At that time I found that accused Gyana Patnaik dealt a blow by the pharsa on the head of R. C. Samantray. R. C. Samantray cried out Maa La and thereafter he fell down on the ground. Thereafter about 12 to 13 others assaulted R. C. Samantray but I cannot say what happened thereafter. I do not know the names of 12 others. I do not know these 12 persons. I did not mark the faces of those 12 persons at the spot. Thereafter about 12 to 13 others assaulted R. C. Samantray but I cannot say what happened thereafter. I do not know the names of 12 others. I do not know these 12 persons. I did not mark the faces of those 12 persons at the spot. After assaulting R. C. Samantray those 13 persons including accused Gyan Patnaik went away towards the Union Office. . ( 36 ) HE had not specifically implicated the other appellants and as admitted by him, he bad not marked the faces of the persons other than the appellant Gyana. He had stated that the appellant Gyana had been armed with a pharsa. He had not even stated that the other persons had lathis or other instruments with them. According to him, after the body of the deceased was lifted and kept in the vehicle and was taken to the hospital, be went to the factory. In his cross-examination, he could not say as to what weapons were being held by the assailants at the time of the occurrence. He could not also say as to whether the assailants were unarmed. There was no evidence that this witness had joined his duties late, that is, beyond 6. 05 a. m. As the evidence would show P. W. 9 bad entered the factory in time and bad attended his duties in TA shift in view of the evidence of the Head Time Keeper (D. W. 1 ). This witness had made a statement when he had been examined by the Investigating Officer at 10. 30 a. m. in the Guest House. The evidence of P. W. 22 was that he had examined P. W. 9 before 12 noon on the day of occurrence. As deposed to by P. W. 9, at 7. 30 a. m. he came out of the factory by taking a gate pass, went away to his house and did not go anywhere on that day and he had not been examined by the police authorities thereafter. He again made a statement that he had been examined by the police authorities at Belpahar one and a half months after the occurrence. P. W. 22 had not recorded the time of the examination of P. W. 9 in the case diary and had admitted: I have not noted the time against each entry of examination of this witness. He again made a statement that he had been examined by the police authorities at Belpahar one and a half months after the occurrence. P. W. 22 had not recorded the time of the examination of P. W. 9 in the case diary and had admitted: I have not noted the time against each entry of examination of this witness. P. W. 22 had admitted that he commenced writing the case diary at 12 noon. His statement was that he had arrested ten of the appellants at 12 noon on the day of occurrence. It was highly unlikely, therefore, that P. W. 9 had been examined in the course of investigation, as deposed to by P. W. 22. ( 37 ) FOR the foregoing reasons, we are not prepared to place reliance on the evidence of P. W. 9 and hold that the appellant Gyan Patnaik and others assaulted the deceased in the manner alleged by this witness. ( 38 ) THIS takes us to the evidence of P. W. 15, who had been accompanying the deceased at the relevant time, as the prosecution sought to establish and had been going ahead of the deceased to join his duty in A shift for which the deceased had also been proceeding towards the factory. Describing about the occurrence, he had testified thus:. . . R. C. Samantray the deceased had also accompanied me By about 5 minutes to 6 myself and R. C. Samantray reached the Golai Chhak at Belpahar. At that time I saw accused Gyana Patnalk was holding a pharsa. Accused Krishna Bahadur was holding a Bhujali. Accused Harihar Ray was holding a cycle chain. Accused Ratikanta Rout was holding a lathi and these four accused persons were standing near the Golei Chhak in front of the club house. Near a cement bench accused Rabi Singh was holding a pharsa. Accused Bhibhisen Rout was holding a cycle chain in one hand and was holding some other (instrument) in another hand. Accused Kanheilal Sahu was holding a lathi. There were two other persons to whom I cannot identify along with Kanheilal Sahu and were holding lathis. When we reached Golei Chhak I heard a shout from Gyana Patnaik TAsare Daudi Asha. Then I turned to my back side and then I saw accused Gvana Patnaik gave a pharsa blow on the head of the deceased. There were two other persons to whom I cannot identify along with Kanheilal Sahu and were holding lathis. When we reached Golei Chhak I heard a shout from Gyana Patnaik TAsare Daudi Asha. Then I turned to my back side and then I saw accused Gvana Patnaik gave a pharsa blow on the head of the deceased. On receiving that blow (chot) the deceased R. C. Samantray fell down on the ground. By chots I mean giving a blow of the pharsa. I cannot say whether the sharp edge of the pharsa or the blunt edge of the pharsa struck the head of R. C. Samantray. On receiving the blow R. C. Samantray cried Maa Lo and fell on the ground. Thereafter the accused persons Krishna Bahadur, Ratikanta Rout, Harihar Ray, Bhibhisen Rout, Kanheilal Sahu and Rabi Singh and two others to whom I cannot identify assaulted R. C. Samantray. Seeing that assault I fled away. There were 12 to 13 persons in all amongst the assailants. . . ( 39 ) IT may be kept in mind that P. W. 16 bad not even named some of the appellants, namely, Mukunda, Kartik, Mahendra, Sarangadhar, Sanatan and Nrupa, far from ascribing any overt act to them. According to him, after the deceased fell down, eight persons in all including the appellants Krishna Bahadur, Ratikant, Harihar, Bibhisen, Kanheilal and Rabi Singh assaulted him. He had not named the other two persons. This was not the prosecution case as according to it, after the deceased fell down, all the appellants surrounded and assaulted the deceased. He had not stated in the course of investigation, as deposed to by him in the court, that the appellants Rabi Singh, Bibhisen and Kanheilal and two others were holding weapons with them. He had not stated about this also in his statement before the Magistrate under section 164 of the Code of Criminal Procedure. While in the court, he had testified that only the appellant Gyana Patnaik called out others to come, he had stated under section 164 that he beard the appellants Gyana Patnaik, Harihar, Krishna Bahadur and Ratikanta shouting calling out others. Like others, he had stated in his evidence that he could not say as to whether the sharp sides or the blunt sides of the weapons had come on contact with the deceased. Like others, he had stated in his evidence that he could not say as to whether the sharp sides or the blunt sides of the weapons had come on contact with the deceased. In his statements under sections 161 and 164 of the Code of Criminal Procedure, he had not spoken about it. ( 40 ) P. W. 16 had testified that he had been examined by the police authorities on the day of occurrence at about 9 to 10 a. m. in the Guest House and his statement had been recorded in a book like the Station Diary maintained at the police station which had been shown to him. P. W. 22 had deposed that he took charge of the investigation of the case from P. W. 25 after 10. 00 a. m. and recorded the statement of this witness on a plain paper between 10 a. m. and 12 noon. This was not the evidence of P. W. 16. In his statement under section 164 of the Code of Criminal Procedure, P. W. 16 had stated that be bad been examined by the police authorities about the occurrence at 1. 00 p. m. on the day of occurrence. In his statements under sections 161 and 164 of the Code of Criminal Procedure, he had not stated that the appellants Rabi Singh, Bibhisen and Kanheilal had been armed. He had, however, no hesitation in deposing against them in the court and asserting that the appellants Rabi Singh bad been armed with a pharsa, Bibhisen had been armed with a bicycle chain and Kanheilal had been armed with a lathi. He had not stated before P. W. 22, as deposed to by him, that 12 to 13 persons assaulted the deceased. In his statement under section 164, he had named only seven persons as the assailants of the deceased and they were appellants Gyana, Harihar, Krishna Bahadur, Ratikant Bibhisen, Rabi Singh and Kanheilal and had stated that five of them excluding appellants Rabi Singh and Kanheilal had weapons with them. He had not named the other assailants of the deceased. His evidence that the pharsa blow dealt by the appellant Gyana fell on the back side of the head of the deceased is falsified by the medical evidence as there was no such injury on the back side of the head of the deceased. He had not named the other assailants of the deceased. His evidence that the pharsa blow dealt by the appellant Gyana fell on the back side of the head of the deceased is falsified by the medical evidence as there was no such injury on the back side of the head of the deceased. ( 41 ) IT would thus be seen that the witness had made prevaricating the irreconcilable statements from time to time and his evidence would not inspire any confidence and ought not to have been accepted. ( 42 ) WE would next come to the evidence of the first-informant (P. W. 20) who had testified that he had seen the occurrence while he was returning after finishing his C shift in the factory which ended at 6. 00 a. m. According to him, the occurrence took place at 6. 05 a. m. But, as his statements made in the court would clearly show, he could not be near about the place of occurrence before 6. 12 a. m. This witness had stated in his evidence that it would take about seven minutes to cover the distance between the factory gate and the Golei Chhak, the place of occurrence. As the prosecution evidence would indicate, the body of the deceased had been received at the hospital at 6. 05 a. m. As deposed to by P. W. 20, he saw the deceased and P. W. 16 coming towards the factory for duty and he (P. W. 20) saw the appellants Rabi Singh with a pharsa, Bibhisen with a bicycle chain and a knife-a story different from the one deposed to by the other witnesses, Mukunda with a lathi and a bicycle chain-allow not in consonance with the other evidence, Kanheilal with a lathi and Kartik with a lathi near the cement chair. Near the Golei Chhak, he saw the appellants Gyan Patnaik with a pharsa, Harihar with a bicycle chain, Krishna Bahadur with a Bhujali and Ratikant with a lathi. Near Gopabandhu Park, he saw the appellants Sarangadhar with a bicycle chain, Sanatan with a lathi, Nrupa with a lathi and Mahendra also with a lathi. Near the Golei Chhak, he saw the appellants Gyan Patnaik with a pharsa, Harihar with a bicycle chain, Krishna Bahadur with a Bhujali and Ratikant with a lathi. Near Gopabandhu Park, he saw the appellants Sarangadhar with a bicycle chain, Sanatan with a lathi, Nrupa with a lathi and Mahendra also with a lathi. Describing about the occurrence and his report, P. W. 20 had testified thus: When the deceased R. C. Samantray and Bharat Baraj arrived near the Golei Chhak, accused Gyana Patnaik called out Asha Dhanin Asha and thereafter accused Gyana Patnaik gave a pharsa blow on the left side head of R. C. Samantray. On receiving the pharsa blow on his head R. C. Samantray fell down on the ground shouting Maa Lo. The other accused persons surrounded R. C. Samantray and assaulted him with the weapons which each of the accused were holding. Accused Rabi Singh gave a blow with the pharsa on the left arm of R. C. Samantray, accused Krishna Bahadur gave a blow by means of Bhujali on the forehead of R. C. Samantray. Thereafter the accused persons went away towards the Union Office with their respective weapons. Bharat Baraj, Dandapani Swain and R. N. Das and Maksud Ali had seen the occurrence to my knowledge. Then myself and Dandapani Swain and Maksud Ali took R. C. Samantray in a vehicle to the hospital. Subsequently the doctor came and examined R. C. Samantray and declared him as dead. When I was proceeding to report I met the O. I. C. Belpahar near the Golei Chhak that is at the spot and I reported the occurrence to him. He reduced my report into writing and he took my signature on the same. Ext. 20 is the F. I. R. and Ext. 20/1 is my signature. One Jaikrishna Mahapatra has attested my signature. Ext. 20/2 is the signature of Jaikrishna Mahapatra. ( 43 ) P. W. 20 bad stated in his cross-examination that the appellant Gyan Patnaik had dealt a blow from the backsides of the deceased. If so, normally a wound would have been noticed on the back of the head of deceased, but there was none. While he had stated in his examination-in-chief that the appellant Gyan Patnaik called out others to come, he had stated in his cross-examination that the appellants Gyana, Krishna Bahadur, Harihar and Ratikant shouted asking people to come. If so, normally a wound would have been noticed on the back of the head of deceased, but there was none. While he had stated in his examination-in-chief that the appellant Gyan Patnaik called out others to come, he had stated in his cross-examination that the appellants Gyana, Krishna Bahadur, Harihar and Ratikant shouted asking people to come. If as stated by him in his cross-examination, after the first assault by the appellant Gyana, the remaining appellants surrounded and assaulted simultaneously after the deceased fell on the ground, it would not be possible for him to say distinctly and definitely as to whether each of the appellants had assaulted the deceased. He had disowned his statements made in the course of investigation that blows had been dealt on the deceased by the sharp sides of the instruments. It may be stated at the cost of repetition that this had deliberately been done and statements had been made in his evidence that he could not say whether the sharp sides or the blunt sides of the instruments hit the deceased as the doctor had noticed no incised wound at time of autopsy. ( 44 ) IN the first information report as also in his statement in the course of investigation this witness had given three sequences of assault on the deceased. The appellant Gyan Patnaik was the first to hit the head of the deceased by means of a pharsa. This was followed by assault on the deceased by three other appellants, namely, Harihar, Ratikant and Krishna Bahadur. Then the other nine appellants came to the spot and assaulted. When these statements were confronted during his cross-examination, he avoided by saying that he did not remember if he had made such statements. He had stated in his report and in his statement to the Investigating Officer that the appellant Rabi Singh had dealt a chot by means of a pharsa on the left hand of the deceased. The word chot is used when some one is hit by the sharp side of an instrument. He had neither stated in his report nor in his statement to the Investigating Officer that the appellant Krishna Bahadur had dealt a bhujali blow on the forehead of the deceased, as deposed to by him in the court. The word chot is used when some one is hit by the sharp side of an instrument. He had neither stated in his report nor in his statement to the Investigating Officer that the appellant Krishna Bahadur had dealt a bhujali blow on the forehead of the deceased, as deposed to by him in the court. ( 45 ) IN one part of his cross-examination, this witness had stated that all the thirteen appellants went together and assaulted the deceased and he could not say who of the appellants assaulted first and who of them assaulted next. By this, be had given a go-by to what he had stated in his report and in his statements in the course of investigation as also what he had stated in his examination-in-chief regarding the sequence of the assaults. ( 46 ) P. W. 20 had asserted that he had lodged the first information report (Ext. 20) at about 6. 30 a. m. on the spot and that he bad been examined in the course of investigation by P. W. 22 at the Guest House on the day of occurrence at 11. 00 a. m. in the presence of P. W. 25. He had stated that there was no talk between him and the Sub-Inspector of Police (meaning P. W. 25) after he gave his signature in the first information report and no police officer examined him soon after he lodged the first information report. He had made a definite statement that P. W. 25 did not examine him at any time after he lodged the report and he was examined by the Officer-in-charge of the Brajarajnagar Police Station (P. W. 22) on that day. He did not remember if P. W. 22 had written his statement in a Station Diary Book or in an ordinary paper. He had stated that he was narrating the occurrence sentence by sentence and the police officer was recording his statements. P. W. 25 had, however, asserted in his evidence that he had examined P. W. 20 on the spot after he lodged the first information report. This was not the evidence of P. W. 20. While according to this witness, be had been examined by P. W. 22 at 11. 00 a. m. at the Guest House, this was not the evidence of P. W. 22. This was not the evidence of P. W. 20. While according to this witness, be had been examined by P. W. 22 at 11. 00 a. m. at the Guest House, this was not the evidence of P. W. 22. His evidence, on the other hand, was that he had re-examined P. W. 30 on the day of occurrence at 3. 00 p. m. Thus there was serious conflict in the prosecution evidence as to when and under what circumstances P. W. 20 was examined in the course of investigation and who, in fact, had examined him. ( 47 ) THE aforesaid discussion of the evidence of P. W. 20 coupled with the medical evidence and that of the Investigating Officers would lead one to a reasonable conclusion that P. W. 20 could not have witnessed the occurrence in the manner be had claimed to have and that he was not a witness of truth. ( 48 ) APART from the aforesaid inconsistencies and improbabilities in the evidence of P. W. 20, there are highly suspicious features with regard to the lodging of the first information report. As the evidence would show, P. W. 25 reached the place of murder in a motor cycle and recorded the first information report on the spot at 6. 30 a. m. The Station Diary of this police out-post did not record the receipt of any such report till 11. 00 a. m. on that day when an entry to that effect was made by this police officer. In the formal first information report (Ext. 21), while registering a case at the Brajrajnagar Police Station, it bad, been mentioned that the first information report had been lodged at 11. 00 a. m. on the day of occurrence at the police out-post. This registration of the case had been made at the police station at 5. 00 p. m. on the day of occurrence. In the first information report, the time of receiving the report had not been mentioned by P. W. 25. An endorsement had been made by P. W. 25 that he had returned to the police out-post and entered Station Diary Entry No. 414 at 11. 00 a. m. about this occurrence on the basis of the report and sent the report to the Officer-in-charge of the police station for registration of a case. An endorsement had been made by P. W. 25 that he had returned to the police out-post and entered Station Diary Entry No. 414 at 11. 00 a. m. about this occurrence on the basis of the report and sent the report to the Officer-in-charge of the police station for registration of a case. He had asserted in his evidence that between 6. 30 a. m. and 11. 00 a. m. on the day of occurrence, he had not come to the police out-post at all. He was, however, constrained to admit in his cross-examination that during this time, he did come to the police out-post three times and had put some persons including some of the appellants in the police out-post lock-up. According to a Station Diary Entry made by him, he kept twenty-one persons in the police lock-up because of the serious repercussions the occurrence bad generated for their safety and not as accused persons and these twenty-one persons included the appellant Gyan Patnaik and others. If the first information report had been lodged at 6. 30 a. m. and immediately thereafter P. W. 20 had been examined by P. W. 25 as asserted by the latter, P. W. 25 would have arrested the thirteen assailants named in the first information report and would not have detained at random twenty-one persons including the appellant Gyan Patnaik and others and one is own showing, they had been kept in the lock-up for their safety and not as accused persons. ( 49 ) IF the first information report bad been lodged at 6. 30 a. m. , as sought to be established by the prosecution by the evidence of P. Ws. 20 and 25, P. W. 25 must have made a Station Diary Entry in this regard when he first came back to the police Out-Post from the spot at 8. 00 a. m. This had not been done and as stated by him, a Station Diary Entry regarding this occurrence was made by him at 11. 00 a. m. This would give yet another indication that the first information report had not been lodged at the time spoken to by P. Ws. 20 and 25 and that the report had come later in point of time. ( 50 ) AS the evidence of P. W. 25 and the Station Diary Entry (Ext. 00 a. m. This would give yet another indication that the first information report had not been lodged at the time spoken to by P. Ws. 20 and 25 and that the report had come later in point of time. ( 50 ) AS the evidence of P. W. 25 and the Station Diary Entry (Ext. 28) would show, by the time P. W. 25 returned to the Police outpost with the appellant Gyan Patnaik and others, a report of Chiranjilal (P. W. 21) about the occurrence was there on the table. A copy of the Station Diary Entry said to be a reproduction of the report bad been admitted in evidence as Ext. 38 in spite of the objection on behalf of the defence regarding its admissibility. The original report was not produced and proved by the prosecution although that would be the first report regarding the occurrence in point of time if the theory of lodging of the first information report by P. W. 20 at 6. 30 a. m. is discarded. In that case, that report would, in fact, be the first information report and any subsequent report made by P. W. 20 would be rendered inadmissible being bit by section 162 of the Code of Criminal Procedure. P. W. 25 bad admitted in his evidence that in the case diary maintained by him, be bad not even mentioned about the report of P. W. 21. It is, indeed, strange that P. W. 22 bad not seen the original first information report or even its copy of the day of occurrence. Thus be had prepared a spot map, examined four of the eyewitnesses and even arrested the appellants other than three persons without even seeing the first information report. ( 51 ) ACCORDING to P. W. 22, the preparation of the spot map, examination of four witnesses to the occurrence and the arrest of ten appellants were completed by 12 noon on June 14, 1980. By that time, he had not seen the case diary written by P. W. 25, as would be evident from the statement of the latter who, in his cross-examination, was constrained to admit that he wrote the case diary between 12 noon and 2. 00 p. m. This had been done in spite of the fact that P. W. 22 had taken charge of the investigation from P. W. 25 after 10. 00 p. m. This had been done in spite of the fact that P. W. 22 had taken charge of the investigation from P. W. 25 after 10. 00 a. m. and he (P. W. 22) had claimed to have taken the aforesaid steps in the course of investigation including arrests of ten of the appellants by 12 noon. ( 52 ) STRANGELY enough, although P. W. 25 had claimed to have recorded the first information report at 6. 30 a. m. and had effected seizure of blood-stained earth on the spot at 6. 40 a. m. after the examination of P. W. 20, he had made no entry in the case diary regarding any such events and he started writing the case diary between 12 noon and 2. 00 p. m. He had admitted. Prior to that I did not mention anything in my case diary. " ( 53 ) INQUEST was held and the inquest report had been prepared by P. W. 25 at 9. 00 a. m. on the day of occurrence as per the inquest report (Ext. 10 ). It had been stated therein that the deceased had died as a, result of a clash between two groups of labourers. If the first information report had been lodged at 6. 30 a. m. as per Ext. 20, thirteen named assailants had been implicated therein. There was no material in the report to show that there had been a clash between two groups. It had been stated in column 7 of the inquest report that it appeared that death of the deceased had occurred because of assaults by sharp cutting instruments like iron chains. No other instruments had been mentioned therein. All this would give an indication that all the information that P. W. 25 had received by the time the inquest was held was that the death of the deceased had occurred as a result of a clash between two groups of labourers and he had no information as to who the assailants were. This would be yet another important circumstances militating against the theory that the first information report had been lodged by P. W. 20 at 6. 30 a. m. naming the appellants as the assailants of the deceased. This would be yet another important circumstances militating against the theory that the first information report had been lodged by P. W. 20 at 6. 30 a. m. naming the appellants as the assailants of the deceased. If such a report had been received and P. W. 20 had been examined by P. W. 25 on the spot, the contents of the inquest report in column 7 would not have been recorded in the manner referred to above. The same thing can as well be said about the dead body chalan in which also no indication had been given by P. W. 25 as to the circumstances in which the occurrence had taken place as alleged by P. W. 20 in the first information report. ( 54 ) THE statement made by the Investigating Officer in the inquest report is not a statement made by any witness before the police during the investigation, but it is a record of what the Investigating Officer himself observed and found. Such a statement in the inquest report does not fall within the four corners of section 162 of the Code of Criminal Procedure and that part of such statements which is based on the actual observation of the Investigating Officer at the spot is admissible under section 60 of the Evidence Act, whereas the other part based on information given to the Investigating Officer or on the statement recorded by him in the course of investigation is inadmissible under section 162 except for the limited purposes mentioned in that section. (See Rameshwar Dayal and others v. State of U. P. ). 11 In the case of Balak Singh and others v. State of Punjab, the names of four out of nine accused persons had not been mentioned in the inquest report and the commission had not been explained. The prosecution party was inimical to the accused persons. The omissions of four names in the inquest report would throw reasonable doubt on the complicity of the four accused persons not named therein, as observed and held by the Supreme Court. The prosecution party was inimical to the accused persons. The omissions of four names in the inquest report would throw reasonable doubt on the complicity of the four accused persons not named therein, as observed and held by the Supreme Court. ( 55 ) WHAT is important in this case is that if the first information report had been lodged and P. W. 20 had been examined by P. W. 25 and he had named the assailants and had spoken about the manner of assault, no mention could be made in the inquest report by the same police officer who had recorded the first information report and had examined P. W. 20 that death had occurred owing to a clash between the labourers of two groups by use of iron chains. These statements in the inquest report would assume importance and would lend assurance to the case sought to be made out by the defence that the first information report had not been lodged at 6. 30 a. m. and P. W. 20 bad not been examined, as deposed to by P. W. 25. ( 56 ) THE evidence of P. W. 6 was that P. W. 20 was continuously present at the hospital and he was there till 11. 00 a. m. This statement, if true, would falsify the assertion of P. W. 20 that be bad lodged the first information report on the spot. ( 57 ) P. W. 25 bad testified that he had seized blood-stained earth on the spot at 6. 40 a. m. The plea of the defence that the seizure list (Ext. 6) had been drawn up later on and a fictitious time had been put therein cannot be said to be without substance as the Police Station Case No. 153 had been entered therein although this police station case number could be obtained at 5. 00 p. m. or thereafter after the case was registered at the Brajarajnagar Police Station and the number of the police station case was assigned to it. P. W. 25 had admitted in his evidence that he had not mentioned in the case diary regarding the seizure of blood-stained earth from the spot. 00 p. m. or thereafter after the case was registered at the Brajarajnagar Police Station and the number of the police station case was assigned to it. P. W. 25 had admitted in his evidence that he had not mentioned in the case diary regarding the seizure of blood-stained earth from the spot. ( 58 ) WE thus find, on a careful consideration of the evidence on both the sides, that the witnesses to the occurrence examined by the prosecution seem to have scant regard for truth and their evidence not only bristled with material discrepancies and inconsistencies, but had been negatived by medical evidence. The conflict between ocular testimony and medical evidence assumed importance especially because of the fact that the evidence of the witnesses to the occurrence other than that of P. W. 17 was not that of independent and disinterested persons, but was highly partisan in character. The investigating agency bad evidently picked up P. W. 17 at a very belated stage to bolster up the case of the prosecution and to support the highly interested versions of the partisan witnesses. The evidence of the alleged witnesses to the occurrence is highly unreliable and utterly untrustworthy. It would be extremely unsafe to rely on any part of such evidence implicating the appellants or any of them. The facts and circumstances indicated above would give a clear indication that the first information report had not been lodged at 6. 30 a. m. on the spot as indicated by P. Ws. 20 and 25 and that it had come into existence later in point of time in the same day. This would be clear not only from the evidence of the witnesses discussed above, but also from the contents of the inquest report and the dead body. chalan and in particular, the inquest report. The other circumstances militating against the theory of lodging of the first information report at 6. 30 a. m. have already been kept on record by us. The investigation has been highly suspect and important steps in the course of investigation had not been mentioned in the case diary. The case diaries had not been written out as and when the investigation had progressed and steps regarding the investigation bad not been written out simultaneously, but subsequently. The investigation has been highly suspect and important steps in the course of investigation had not been mentioned in the case diary. The case diaries had not been written out as and when the investigation had progressed and steps regarding the investigation bad not been written out simultaneously, but subsequently. The in consistencies, improbabilities and suspicious features noticed by us should not have escaped the notice of the trial court. ( 59 ) IN our view, the prosecution has failed to bring home the charges to the appellants who are entitled to an acquittal. It might seem unfortunate that a cold-blooded murder of a person is going unpunished, but in the absence of legal proof of a crime, there can be no legal criminality. Even if one is morally convinced about the guilt of some of the accused persons, moral conviction cannot be made the basis of a finding of guilt in a criminal trial in the absence of clear and unimpeachable evidence leading to the conclusion that they were the authors of the crime. ( 60 ) IN the result, the appeals succeed and the same are allowed. The orders of conviction and sentence passed against the appellants in both the appeals are set aside. The appellants be set at liberty forthwith. Appeals allowed. .