J. K. MOHANTHY, J. ( 1 ) APPELLANT hasant Singh has been convicted under Section 302 IPC for committing murder of one Balunki Behera. The appellant along with twelve others was tried in the court of the Additional Sessions Judge, Bhubaneswar. The appellant and one Rohita Singh (since acquitted) were charged under Section 302 IPC. They were further charged under Sections 147, 302 read with 149, and 323 IPC. The other accused persons were charged under sections 1047, 302/149 and 323 I. P. C. Except the appellant, all the other accused persons have been acquitted. ( 2 ) PROSECUTION case in short is that there are two villages, namely, Janla and Harapur within the jurisdiction of Jatni Police-station in the district of Pun. There is another village, namely, Chandihata in between these two villages. There is a tank called Sunagadi situated near village Harapur. In the year 1956, this tank had been transferred to Janla grama panchayat. The tank was put to auction for the year 1978-79 and Bairagi Panda (P. W. 2) of village Janla being the highest bidder, was given lease to catch fish from the tank. It is alleged that on 23. 3. 1979 at about 8. 30 a. m. the villagers of Janla numbering about 30 to 40 including P. W. 1 to 10 came to catch fish from the tank. The accused persons, who are villagers of Harapur, were standing on the ridge of the tank holding weapons like lathis tentas, valis, gun and hand-bomb. When the villagers of Janla came to the tank, the accused persons prevented them from catching fish. So there was an altercation amongst the two groups. After sometimes, it is alleged, Rohit Singh (since acquitted) fired a shot from a gun at the villagers of Janla. Though none of the villagers of Janla received any injury, deceased Balunki Behera fell down on the ground on hearing the sound. Then accused Kedara Jena (since acquitted) threw a hand bomb towards the villagers of Janla. Thereafter, the appellant assaulted the deceased by a lathi and some other accused persons trampled over him. The villagers of Janla tried to escape but were chased and assaulted. Then accused Kedara Jena (since acquitted) threw a hand bomb towards the villagers of Janla. Thereafter, the appellant assaulted the deceased by a lathi and some other accused persons trampled over him. The villagers of Janla tried to escape but were chased and assaulted. ( 3 ) THE case of the defence is that while be appellant, accused Prafulla Singh, Prasanna Kumar Jena and Kulamaani Das (since acquitted) were going to take bath in the tank the villagers of Janla came there being armed with various weapons. When they wanted to catch fish the above-named four persons told them that the little water available in the tank was being used by the people of Harapur for drinking and other purposes and the water should Dot be spoiled. The villagers of Janla did not pay any heed to that and at the instance of the Sarpanch of Janla (P. W. 11) assaulted these four persons, who raised hue and cry which attracted the, villagers of Harapur. Some of the villagers of Harapur came running being armed with lathis etc. and scuffle ensued between the two groups as a result of which some villagers of Janla received injuries. The appellant specifically denied the allegation that he had assaulted Balunki Behera. There was also a counter case against some of the villagers of Janla. ( 4 ) ON behalf of the prosecution, IS witnesses were examined and one witness was examined on behalf of the defence. P. Ws. 1 to 10 are eye witnesses to the occurrence, P. W. 11 is the Sarpanch of Janla gram panchayat, P. W. 12 is the Medical Officer of Janla dispensary, who first examined the deceased. P. W. 13 is the doctor of the SCB Medical College, Cuttack, who conducted the postmortem examination over the dead body of the deceased, P. W. 14 is the 1. 0. , P. W. 15 is the Medical Officer of Jatni Primary Health Centre, who examined the appellant and some other persons. The learned Addi. Sessions Judge on a consideration of the evidence and the facts and circumstances of the case convicted the appellant u/s. 302 I. P. C and sentenced him to undergo imprisonment for life and acquitted the other accused persons. ( 5 ) MR. The learned Addi. Sessions Judge on a consideration of the evidence and the facts and circumstances of the case convicted the appellant u/s. 302 I. P. C and sentenced him to undergo imprisonment for life and acquitted the other accused persons. ( 5 ) MR. Dhal, the learned counsel appearing on behalf of the appellant, submitted that the learned Judge having disbelieved the major part of the prosecution case and in material aspects should not have convicted the appellant alone; that the prosecution witnesses did not come forward with the true story as to how the occurrence took place and do not explain how several members of the accused party were injured; that the witnesses ale partisan witnesses who are wholly unreliable and in the absence of any independent corroboration reliance should not be placed on their testimony; that the report of the two doctors, i. e. P. W. 12 who examined the deceased first and found only one injury, namely, a bruise on the scalp over the left ear and P. W. 13 who found five external injuries on the dead body of the deceased, will throw a great deal of doubt in the prosecution case; that the learned Judge should have accepted the defence story; and that in any view of the matter the appellant is entitled to acquittal. ( 6 ) IN this case P. Ws. 1 to 10 are eye witnesses to the occurrence. P. W. 1 was one of the persons who went with the people of Janla to catch fish. According to him, as soon as they reached the spot, Rohit Singh fired a shot from a gun which was followed by explosion of a bomb thrown by Kedar Jena as a result of which the deceased fell down. While he fell down the appellant assaulted on his head with a lathi. He has stated TIJ cannot say if any of the accused persons was ever injured during that scuffle. This witness was an accused in the counter case. P. W. 2 Bairagi Panda had taken the lease of the tank. According to this witness Rohit Singh of Harapur filed a gun shot at the villagers of Janla a8 a result of which the deceased fell down out of shock. Kedar Jena exploded a bomb which caused injury on Sukanta Mohapatra. P. W. 2 Bairagi Panda had taken the lease of the tank. According to this witness Rohit Singh of Harapur filed a gun shot at the villagers of Janla a8 a result of which the deceased fell down out of shock. Kedar Jena exploded a bomb which caused injury on Sukanta Mohapatra. He admits that some of the accused persons have been injured during the occurrence. He was also an accused in the counter case. P. W. 3 is the father of the deceased. According to him, on getting information that his son Balunki Behera (deceased) died in the scuffle he ran to the spot and found that the appellant; Aparti Singh and Kulamani Dass were giving kicks to his son and his son was lying on the ground. He found none else there. P. W. 4 has stated that there was a quarrel between the villagers of Janla and Harapur. At that time Rohit Singh fired a gun shot at the village of Janla as a result of which tile deceased fell down being shocked and thereafter Kedar Jena threw a hand bomb. When the deceased was lying on the ground, the appellant indicted a lathi blow on the bead of the deceased. Then some of the people dragged him and trampled over him. He had not stated before the police that Rohit Singh fired a gun shot and Kedar Jena threw a hand bomb nor did he say that the appellant gave a lathi blow on the deceased. He was an accused in the counter case. P. W. S has also stated in the same manner as P. W. 4. This witness did not state before the 1. 0. about Rohit Singh having fired the gun nor did he say that the deceased fell down on the ground due to shock on hearing the gun fire. He has also not stated before the 1. 0. that the appellant assaulted on the head of the deceased with a lathi and others trampled over him. He also pleads his ignorance about the fact as to how the accused persons received injuries. P. W. 6 has stated: Then Rohita Singh fired a gun Shot towards us. Balunki Behera fell down. Then Kedar Jena threw a bomb which exploded amongst us. There was a great smoke. So we tried to come back. He also pleads his ignorance about the fact as to how the accused persons received injuries. P. W. 6 has stated: Then Rohita Singh fired a gun Shot towards us. Balunki Behera fell down. Then Kedar Jena threw a bomb which exploded amongst us. There was a great smoke. So we tried to come back. In the meantime hasanta Singh gave a lathi blow on Balunki Behera. He was an accused in the counter case. Though be admits that some of the accused persons were injured in the fighting, he could not say how the accused persons were injured. Before the 1. 0. he has not stated anything about the assault on Balunki nor did he states about the firing of the gun by Rohit Singh, P. W. 7 has stated: The moment we reached the bank we found 40 people including the accused persons coming to the bank from inside the tank. They had lathi, vali. Kunta etc. All the people in one voice asked us as to why we had been to that tank. Bairagi asserted saying that he had taken the tank on lease. Accused persons said not allow him for fishing. In the meantime Rohita Singh fired a gunshot and Kedar Jena fired a hand bomb hasanta Singh gave a lathi blow on his head. Kulamani Das, Bulla Das, Adwaita Jena trampled over Balunki. hasanta Singh gave a lathi blow on my head. Rohita Singh gave a lathi on my left hand and also another blow on the right hand. Then we ran away from the place. I cannot say about the other assault. He was an accused in the counter case. He has denied his knowledge about the injuries on the accused persons. Before the 1. 0. he has not stated that Rohit Singh fired a gun shot and Kedar Jena exploded a bomb. He has also not stated about the fact that the appellant assaulted the deceased and others trampled over him. P. W. 8 has stated that Rohita Singh fired a gun shot and Kedar Jena threw a bomb. In the meantime the deceased fell down. The appellant gave a lathi blow on his head. Then Narayan Jena, Prafulla Singh and Aparti Singh dragged the deceased and trampled over him. However, before the 1. 0. P. W. 8 has stated that Rohita Singh fired a gun shot and Kedar Jena threw a bomb. In the meantime the deceased fell down. The appellant gave a lathi blow on his head. Then Narayan Jena, Prafulla Singh and Aparti Singh dragged the deceased and trampled over him. However, before the 1. 0. he has not stated about the fact that the appellant assaulted the deceased nor did not he say that Narayan, Prafulla and Aparti dragged the deceased and trampled over him. He was an accused in the counter case. About the occurrence P. W. 9 has stated: In the meantime Rohita Singh fired a gun shot towards our villagers. Kedar Jena threw a bomb which exploded within our group. Balunki Behera fell down after the gun shot and before the bomb explosion. Because of the bomb explosion we were terrified as there was heavy smoke and high sound and some of us fell down on the land. We also came back about 20 cubits. In the meantime while looking back I found hasanta Singh assaulted Balunki. Aparti Singh, Charan Singh and Narayan Jena trampled over Balunki Behera. He has also stated about the assault on others and on himself too. Before the 1. 0. he has not stated about the assault by the appellant on the deceased and also about trampling by Aparti, Charan and Narayan. He has not stated about the assault on some of their party members by the accused persons. P. W. 10 has stated at Jut the occurrence in the following manner. On 23. 3. 71 at about 8 a. m. Bairagi Panda (P. W. 2) asked me to accompany him for fishing at Sunagadi. We 25 to 30 people of our village accompanied him with nets and poluhas. While we have reached the tank we saw from the distance of 20 to 30 cu. bits that 25 to 30 people of Harapur were standing on the tank being armed with lathies. First Surendra Jena of Harapur asked Bairagi Panda as to where we had been. Bairagi Panda told that he had taken the lease and he would catch fish from Sunagadi tank. Surendra Jena and others of Harapur said not to allow us. Then Bairagi Panda said that he must fish as he had taken the lease. Then Rohita Singh fired a gun shot towards us. So Balunki Behera fell down. Bairagi Panda told that he had taken the lease and he would catch fish from Sunagadi tank. Surendra Jena and others of Harapur said not to allow us. Then Bairagi Panda said that he must fish as he had taken the lease. Then Rohita Singh fired a gun shot towards us. So Balunki Behera fell down. Balunki was also known as Bhagirathi. Then Kedar Jena threw a bomb towards me. It exploded and produced sound as well as smoke. I sustained injuries on my left hand by the splinters. Then all of us tried to back out. The accused group came down from the bank and hasanta Singh gave a lathi blow on the head of Balunki. In the meantime Prafulla came to me and gave two lathi strokes on myself hand. Prafulla Singh and Narayan Jena came and trampled over Balunki. Then I came back home. I cannot say the other assaults in details. This witness is the brother of P. W. 1. P. W. 12 is the Medical Officer who examined Balunki first and found only one injury on the person of Balunki, i. e. a bruise on the scalp on the left ear 2 x 11/2. He reserves his opinion and as the patient was unconscious at the time of examination he referred the deceased to the S. C. B. Medical College. P. W. 13 is the Medical Officer who conducted the postmortem examination over the dead body of Balunki on 22. 3. 79. He found five external injuries and three internal injuries, and according to him, the internal injuries were the probable cause of death. The learned Sessions Judge after considering the evidence arrived at the finding that there was no valid lease and P. W. 2 Bairagi Panda had no right to go into the tank. He has disbelieved the fact about firing of the gun and explosion of the bomb. He has also disbelieved the story of the deceased being trampled by some of the accused persons. He has not accepted the story of the prosecution regarding assault by the other accused persons. So far as the appellant is concerned the learned Judge observed that he never intended to cause death nor he assaulted the deceased with the intention of causing such bodily injury which in ordinary course was expected to cause death. ( 7 ) AS already discussed, P. Ws. So far as the appellant is concerned the learned Judge observed that he never intended to cause death nor he assaulted the deceased with the intention of causing such bodily injury which in ordinary course was expected to cause death. ( 7 ) AS already discussed, P. Ws. 1 to 10 are eye witnesses to the occurrence. P. Ws. 1, 2, 4, 6, 7 and 8 were accused in the counter case. P. W. 9 is the son of one of the accused in the counter case. P. W. 10 is the brother of one of the accused persons. P. Ws. 1, 4, 5, 6, 7, 8 and 9 have not stated about the fact that the appellant assaulted the deceased and most of them have not stated before the 1. 0. about firing of the gun shot by Rohit Singh and explosion of the bomb by Kedar Jena as already indicated above. P. W. 2 is said to be the person who had taken lease of the tank. This witness had been to the police station on 22. 3. 79 and reported in writing (Ext. A) that he would go to Sunagadi tank for fishing and he apprehended obstruction from the people of Harapur. He requested for police help. It appears that on receiving Ext. A. P. W. 14 called both parties and ascertained from them that they would never go to the tank for fishing. But in spite of this, it appears, he along with co-villagers went to the tank for fishing on the date of occurrence. He even went to the extent of saying that some ladies joined hands with the accused persons in collecting and throwing brick bats. P. W. 3 is the father of the deceased who has not seen the actual occurrence. ( 8 ) ON a consideration of the above evidence the learned Sessions Judge has acquitted all other accused persons except the appellant. He has disbelieved the prosecution case in its material aspect and has acquitted all other accused persons of all charges leveled against them. On a consideration of the evidence as indicated above it transpires that all the witnesses and they have not come with the true story. The prosecution has not explained the reason as to how some of the accused persons received injuries and most of them have denied the presence of injuries on the accused persons. On a consideration of the evidence as indicated above it transpires that all the witnesses and they have not come with the true story. The prosecution has not explained the reason as to how some of the accused persons received injuries and most of them have denied the presence of injuries on the accused persons. Most of the witnesses have not stated about the assault by the appellant on the deceased before the 1. 0. and have also not stated about firing of the gun and explosion of the bomb which is the genesis and origin of the occurrence. When the prosecution witnesses are partisan witnesses and do not come forward with the true story as to how the occurrence took place and several members of the accused party were injured, it is difficult to place reliance on their version in the absence of any corroboration from some independent evidence or circumstances. ( 9 ) AFTER hearing the argument of both sides, considering the evidence on record and the facts and circumstances of the case we are constrained to hold that the prosecution has not been able to prove the case beyond reasonable doubt against the appellant and he is entitled to benefit of the same. ( 10 ) IN the result the appeal is allowed and the order of conviction and sentence passed against the appellant is set aside. He be set at liberty forthwith. Appeal allowed.