JUDGMENT B. PANIGRAHI, J. — All the aforesaid matters arise out of an order dated 26.08.1987 passed by the learned First Additional Sessions Judge, Berhampur, in Sessions Case No. 7of 1987 (S.C.No. 70/87 G.D.C.) convicting the appellants in the Criminal Appeal, who are respondents in the Government Appeal and opposite parties in the Criminal Revision, under Sections 148, 325/149 and 323/149, of the Indian Penal Code (in short ‘IPC’) and sentencing them to undergo R.I. for 5 years under Sections 325/149, IPC; R.I. for 2 years under Section 148, IPC; and R.I. for one year under Section 323/149, IPC; the sentences to run concurrently. The appellants have filed the Criminal Appeal No. 172 of 1987 chal¬lenging the order of their conviction. While Criminal Revision No. 477 of 1987 has been filed by the informant with a prayer for enhancement of sentence, Government Appeal No. 15 of 2002 has been filed by the State challenging the order of acquittal of the accused persons of the offence under Section 302/149, IPC. State has made an alternative prayer to award adequate sentence for the conviction under Section 325/149, IPC. All the three cases have been heard together and this common judgment will govern all the cases. 2. The prosecution case as unravelled during trial is as follows : At about mid-night of 9/10.7.1986, Jodu @ Vinayak Torai (deceased) and his co-villager Ramesh Swain (P.W.2) had been to the hotel of appellant T. Venkat Rao in an auto-rickshaw. They placed orders for service of dinner. As the food was not upto their choice, they got agitated for the reason whereof there was severe brawl between the deceased Jodu @ Binayak Torai and P.W.2 Ramesh Swain on one hand and the appellants on the other. Both the deceased and P.W.2 had point blank refused to pay the price of the food, but the appellant Prakash Rao passed sarcastical remarks by saying that the hotel did not belong to the father of the deceased as well as P.W.2. On listening such scathing re¬marks, they got enraged and started damaging the articles of the hotel. At this, both the appellants Prakash Rao and T. Venkat Rao caught hold of the deceased while the other appellants, who were employees of the hotel, surrounded him. On listening such scathing re¬marks, they got enraged and started damaging the articles of the hotel. At this, both the appellants Prakash Rao and T. Venkat Rao caught hold of the deceased while the other appellants, who were employees of the hotel, surrounded him. At this juncture, P.W.2, being excited by seeing that the deceased had been surrounded by the appellants, broke the light fittings by throwing a bench at the counter. Thereupon all the appellants being armed with lathi, cycle chains, iron rods and other lethal weapons severely assault¬ed the deceased and P.W.2 in front of the hotel when they at¬tempted to flee away from the spot. One of the employees of the hotel, namely, Jogi Patra, who is also an appellant in the Crimi¬nal Appeal, brought out one “Danti Kodi’ (a lathi fitted with three pieces of iron rods) and dealt a heavy blow on the head of the deceased, as a result of which he sustained severe injury and fell down in front of the hotel. P.W.2, Ramesh Swain, in order to save his life, ran hither and thither from that place, but the appellants chased him being armed with the aforesaid weapons. In the process of running and being chased by the appellants, P.W.2 stumbled on the Podor land behind Bira Singh’s hotel at a distance of about 500 feet from the hotel of appellant T. Venkat Rao. Even after he fell down on the ground, the assault on him continued unabated. But when the appellants found that the condition of P.W.2 was deterioting, they thought him to be dead and left the place. 3. At about 1.00 A.M. on 10.7.1986 P.W.10, Somanath Torai, the brother of the deceased, had been to Rao’s hotel and noticed that quarrel was still continuing between the deceased and P.W.2 on one hand and the appellants on the other. He entreated the appellants not to assault the deceased as he was prepared to compensate the damage if any caused by the deceased and P.W.2. But they were not in a mood to desist from assaulting P.W.2 and the deceased. P.W.1, Surendra Tarai, having learnt this from the other brother (P.W.10) came to Rao’s hotel to enquire about the incident. Subsequently both the brothers of the deceased (P.Ws.1 and 10) tried to ascertain the whereabouts of the deceased from P.W.2, who observed stoic silence because of severe injury on his person. P.W.1, Surendra Tarai, having learnt this from the other brother (P.W.10) came to Rao’s hotel to enquire about the incident. Subsequently both the brothers of the deceased (P.Ws.1 and 10) tried to ascertain the whereabouts of the deceased from P.W.2, who observed stoic silence because of severe injury on his person. One of the appellants, namely Judhistir, who belonged to their village, however, informed them that since the deceased and P.W.2 damaged the light fittings and other materials of the hotel, they were chased by the hotel staff for which they ran away. On the text morning P.W.1 went in search of his brother, but found his deadbody which was floating inside a well near Bira’s hotel. He went to the police station and lodged a report marked Ext.1, on the basis of which a case was registered and investigation was immediately carried on. In course of investiga¬tion, the deadbody of the deceased was recovered from the well near Bira’s hotel. The Investigating Officer held inquest over the deadbody and sent it for post mortem examination which was conducted by P.W.4, Dr. A. Behera, of Medical College and Hospi¬tal, Berhampur. Blood stained earth was collected from the place where P.W.2 as lying injured. Blood stained earth and some sample earth were collected from a place in between the petrol bunk and Bira’s hotel where inquest over the deadbody was held. The wearing apparels of the deceased and the blood stained dresses of P.W.2 were also seized under seizure lists, Exts. 13 and 3 respective¬ly. A lathi stained with blood was seized on production by ac¬cused-appellant N. Narana Patra under seizure list, Ext. 6. Some blood stained articles were sent to Forensic Science Laboratory, Rasulgarh for chemical examination as per forwarding letter, Ext. 9. The Chemical Examiner’s report was marked as Ext. 20 and the Serologist’s report was marked as Ext. 21. After completion of investigation, the Investigating Officer placed charge-sheet against all the accused persons under Sections 148, 302/149, 324/149 and 323/149, IPC. 4. The defence plea was one of complete denial of prosecu¬tion case. The accused persons also pleaded that they have been falsely implicated. However, they declined to adduce any evidence in their support. 5. Before proceeding to discuss the substratum of the prosecution story, it is worthwhile to reflect the topography of the spot where the occurrence is said to have taken place. 6. The accused persons also pleaded that they have been falsely implicated. However, they declined to adduce any evidence in their support. 5. Before proceeding to discuss the substratum of the prosecution story, it is worthwhile to reflect the topography of the spot where the occurrence is said to have taken place. 6. On the eastern side of National High Way No. 5 which runs from North to South at a distance of 88 feet the hotel in the name and style “Andhra Orissa Line Hotel” belonging to accused T.Venkat Rao was situated. Appellant Judhistir Behera owned a pan shop on the left side of the said hotel towards the front. At a distance of 290 feet towards the north of the said hotel, there was another hotel run by one Punjabi, Bira Singh, by taking it on lease from P.W.8, Pandav Nahak. On the right side front of the said hotel there was another pan shop run by one Laxmidhar Misra. The front portions of these hotels were used for dining purposes of the customers. There was a well at a distance of about 50 feet to the north of Bira’s hotel in which pipe was fitted to collect water for the use of the said hotel and there were steps inside the well. Adjacent to the north there was a tyre repairing cabin run by one Karan Din and to its further north there was a diesel and petrol bunk belonging to one Satyaban Naik. Behind both the hotels there was a vast patch of Podar land vide spot map, Ext. 14. 7. Prosecution mainly relied upon the evidence of P.Ws.1,2 and 10, who claimed to have seen parts of the occurrence. But the testimony of P.W.2 goes a long way in proving the culpability of the appellants. In order to bring home the culpability of the appellants that they formed an unlawful assembly being armed with deadly weapons with the common object of assaulting the deceased and P.W.2 and in prosecution of such common object all or some of the appellants assaulted the deceased severely and mercilessly caused hurt to P.W.2, his evidence assumes greater significance. He is one of the injured in course of assault and, therefore, his evidence should not be lightly brushed aside in deciding the part played by the appellants. He is one of the injured in course of assault and, therefore, his evidence should not be lightly brushed aside in deciding the part played by the appellants. P.W.10, Somanath Torai, who is the elder brother of the deceased, had claimed to have seen a part of the occurrence and informed the same to P.W.1, another brother of the deceased. P.Ws.8 and 9 had also proved certain circumstances connecting the appellants subsequent to the assault on the de¬ceased. P.W.3, Dr. B. Panigrahi, who was the Medical Officer at Rambha Government Hospital also corroborated the injuries sus¬tained by P.W.2. P.W.4, Dr. A. Behera, had conducted the autopsy over the deadbody of deceased Jodu @ Vinayak Torai. P.W.5 was a member of the Fire Brigade, who recovered the deadbody of the deceased from the well. P.W.6 was the scribe of the F.I.R. and also a witness to the seizure. P.Ws. 7, 11 and 12 were the Police Officers, who had either carried on investigation or effected seizure. 8. On looking to the evidence of P.W.4, who conducted the post mortem examination over the deadbody of the deceased on 11.7.1986 at about 11.00 A.M.,it transpires that he found the following injuries : (i) One lacerated wound ‘Y’ shape 3" x 2" x 1" x bone deep on right parietal area 4" above the mastoid process. (ii) Contused abrasion on left lateral mallelus 3" x 1". (iii) Contused abrasion 3" x 1" on dorsum of left foot on its lateral aspect. (iv) Contused abrasion 5" x 4" on chest wall, over sternum 2" below the manubrium. (v) Small abrasion ½" x ½" on middle part of ring finger on its palmer aspect 1½" away from its base. On close examination of the evidence of P.W.4, we, however, carried an impression that the death of deceased Vinayak Torai could not have been due to drowining inasmuch diatom test was conducted to rule out such possibility. Certain contentions were advanced on the basis of the Medical Jurisprudence and hypotheti¬cal questions were raised before the learned trial Judge. But the learned trial Judge rejected such contentions as those were asked to the Medical Officer while he was in the witness box. The learned trial Judge was also forced to spurn those contentions on the basis of a judgment reported in 57(1984) CLT 81 (Chudiamal Jain and another v. State of Orissa). But the learned trial Judge rejected such contentions as those were asked to the Medical Officer while he was in the witness box. The learned trial Judge was also forced to spurn those contentions on the basis of a judgment reported in 57(1984) CLT 81 (Chudiamal Jain and another v. State of Orissa). Where the opinion of the authors of a Text Book was not shown to the witness nor had any such circumstance been asked to the doctor, it would not be apposite to state such facts at the time of argument. Therefore, we are of the view that the learned trial Judge has rightly excluded those submissions of the appellants on the hypothetical question, particularly when ocular evidence had been placed before the Court below. Thus we in agreement with the learned trial Judge are of the firm view that the death of Jodu @ Vinayak Torai was neither accidental nor suicidal, but it was homicidal. 9. In order to prove the complicity of the appellants in commission of the crime, prosecution, besides, relying upon the direct evidence of the witnesses, placed some important, signifi¬cant circumstances. P.W.2 Ramesh Swain who was an injured in course of the same transaction presented a graphic picture of the assault caused by the appellants on the deceased as well as on him. He sustained a number of injuries in course of assault. P.W.10, Somanath Torai, the brother of the deceased saw the initial part of the assault on his brother and P.W.2. He corrobo¬rated the prosecution case to the extent it had happened in his presence. According to P.W.2, when he himself and the deceased were being assaulted, P.W.10 wanted to interfere and subside the quarrel, but the appellants did not listen his words. 10. On a combined reading of the evidence of P.Ws.2 and 10, there appears very little doubt that there was an incident at about mid-night of 9/10.7.1986 in which the deceased as well as P.W.2 were assaulted by the appellants on account of a quarrel over payment of hotel dues after food was served to them. This part of the story has also been admitted by the defence. The evidence of P.W.10 appears to be natural, reliable and trustwor¬thy. Even assuming that the appellants had some grudge against the deceased, but there was no ill-feeling between P.W.10 and the appellants. This part of the story has also been admitted by the defence. The evidence of P.W.10 appears to be natural, reliable and trustwor¬thy. Even assuming that the appellants had some grudge against the deceased, but there was no ill-feeling between P.W.10 and the appellants. Therefore, there is no reason as to why his evidence will be viewed with suspicion. 11. The evidence of P.Ws.1, 8 and 9 has also established the complicity of the appellants in the crime. Besides the testi¬mony of the doctors, P.Ws.3 and 4, the evidence of P.W.1 is also clear, cogent and categorical as regards the quarrel between the deceased and P.W.2 on one hand and the appellants on the other in the night of occurrence. Subsequently he searched for the de¬ceased, but could not get any trace of him. Next day, he could gather that his brother was floating dead inside a well. The deadbody of deceased Jodi @ Vinayak Torai was recovered by P.W.1 with the assistance of P.W.6. He has also recognised appellant Narayan Patra, Simanchal Behera, B. Maguni Patra and Bidyadhar Nahak by stating that they were holding lathis in their hands, accused Jogi Patra was holding a “Danti Kodi”, appellant Prakash was holding an iron rod, and accused Kamaraju Pradhan and B. Mangulu Patro were holding split woods. He has also stated to have seen a patch of blood in front of that hotel at that time. Therefore, on a combined reading of the evidence of P.Ws.1, 2 and 10 there leaves no room for doubt that the incident had taken place in front of the hotel of appellant T. Venkat Rao. 12. The evidence of P.W.8 Pandav Naik is also no less significant. He has testified that on the date of occurrence when he was sleeping inside the petrol pump he was aroused at about mid-night on hearing the outcry outside. Thereafter he came out to the road and noticed the appellants including some outsiders, numbering about 20 in all, standing near the well shouting that a person might have fallen inside the well. Some of them uttered that he must have gone away, while some others wanted to throw stones into well to kill the man. At that time all were armed with split wood, iron rod and other different deadly weapons. Some of them uttered that he must have gone away, while some others wanted to throw stones into well to kill the man. At that time all were armed with split wood, iron rod and other different deadly weapons. P.W.8 requested them to abstain themselves from throwing stones inside the well apprehending that the person might die in case he had fallen inside the well. He also hurled threats at them saying that if they did not desist, he would be obliged to inform the incident to the police. On hearing this the appellants had left the place. Naturally after the appellants went away he tried to ascertain if anybody had fallen inside the well. So with the assistance of P.W.9, who was eventually present at that place, he made an attempt to gather information if anybody was drowned. Suggestion had been put by the defence that since P.W.8 had run a hotel earlier and there was slump in business, he had leased it out to Bira. Thus he had enmity with the appellants. However, we are not in a position to appreciate such contention inasmuch as P.W.8 being the opposite neighbour did not speak regarding the assault part committed by the appellants on the deceased. There¬fore, his evidence cannot be said to be the outcome of any enmi¬ty. The fact remains that he stated that he went in the night of occurrence to the well after learning that somebody might have fallen into the same. 13. P.W.2 was lying at a distance of about 150 cubits in the Podar land behind Bira’s hotel. He was not in a position to answer any question put to him as he was severely injured. The appellants thinking him to be dead left the place. From the evidence of P.W.2 it has been firmly established that all the accused being armed with deadly weapons like lathis, iron rod, cycle chains, etc., assaulted the deceased and P.W.2 at the hotel where the deceased fell down on account of the fatal blow given on his head by accused jogi @ Jogendra Patra by means of a “Danti Kodi.” P.W.2 in order to save his life ran away hurriedly and all the appellants chased him upto the Podar land and when he stum¬bled down he too was assaulted black-and-blue. Therefore, the trial Court had rightly accepted the evidence of the prosecution to be natural, trustworthy and believable. Merely because the prosecution omitted to examine some more witnesses, no adverse inference could be drawn and it cannot be said that it had failed to bring home the charge to the appellants. 14. After careful analysis of the evidence on record, now it has to be considered as to the extent of liability to be fastened with the appellants for the offence they had committed. Admittedly the trouble started over payment of money demanded by appellant Prakash at the counter. P.W.2 and the deceased at the outset had shown abridged attitude and further the deceased allegedly gave a slap to appellant Prakash and P.W.2 threw a bench at the counter damaging the light fittings of the hotel whereafter all the appellants joined together and assaulted both the deceased and P.W.2 being armed with various weapons. After receiving injuries the deceased fell down in front of the hotel whereas P.W.2 ran away to save his life and the appellants chased him. There is no evidence that the deceased and P.W.2 were armed with any weapon. The appellants were large in number and were armed with various weapons. After P.W.2 and the deceased were over-powered by the appellants, they could have been handed over to the police to take legal action against them. But it is not understood under what circumstances the appellants beat them mercilessly. So, their action became unlawful inasmuch as they had taken the law into their own hands. From the evidence on record, it has transpired that P.W.2 and the deceased were local goons. But this by itself does not justify the appellants to beat them mercilessly as a result whereof one of them died and the other received injuries on different parts of his person. There has been no evidence of prior enmity between the deceased, and P.W.2 on one hand and the appellants on the other. Therefore, the trial Court has rightly held that all the appellants formed an unlawful assembly with the common object of assaulting both P.W.2 and the deceased, and so, they have been rightly held liable for having committed offence under Section 325 read with Section 149, IPC in addition to the offence under Section 148, IPC. No sharp cutting weapon like kati had been used. No sharp cutting weapon like kati had been used. Thus, the trial Court did not record any finding under Section 324 read with Section 149, IPC. Instead, it convicted the appellants under Section 323 read with Section 149, IPC. Thus we uphold the conviction of the appellants under Sections 148, 325/149 and 323/149, IPC. 15. The occurrence had taken place in July, 1986. More than fifteen years have passed in the meantime. In the above conspec¬tus of the case and on a careful consideration of the facts and circumstances, in order to meet the ends of justice, we hereby direct each of the appellants to undergo R.I. for two years under Section 325/149, IPC, R.I. for six months under Section 148, IPC and for 3 months under Section 323/149, IPC; all the sentences are to run concurrently. 16. Accordingly, Criminal Appeal No. 172 of 1987 is dis¬missed subject to the above modification in sentence. 17. There has been no evidence that the appellants had intended to do away with the life of Jodu @ Vinayak Torai. Fur¬ther, there is no clinching evidence that the appellants had caused the murder of the deceased Jodu. Although the medical evidence of P.W.4 had established that the death was due to the assault on the parietal region on account of lacerated injuries, but the weapon of offence alleged to have been used by accused Jogi would suggest that there would have been piercing wound. Thus, in the aforesaid situation we are not in a position to accept the grounds taken in the Government Appeal and convict the appellants under Section 302/149, IPC. Furthermore, accused Jogi allegedly assaulted on the head of the deceased Jodu @ Vinayak Torai. There has been no evidence that all other appellants had common object to kill the deceased. Thus all of them cannot be held responsible for the death of Jodu @ Vinayak Torai. There has been no separate charge against appellant Jogi for committing murder of deceased Jodu @ Vinayak Torai. Thus, the charge against all the appellants under Sections 302/149, IPC is not sustainable in law. Accordingly, they were rightly acquitted by the trial Court, though on different grounds. 18. In view of our findings as aforesaid, Government Appeal No. 15 of 2002 and Criminal Revision No. 477 of 1987, filed by the State and the informant respectively, are dismissed. Thus, the charge against all the appellants under Sections 302/149, IPC is not sustainable in law. Accordingly, they were rightly acquitted by the trial Court, though on different grounds. 18. In view of our findings as aforesaid, Government Appeal No. 15 of 2002 and Criminal Revision No. 477 of 1987, filed by the State and the informant respectively, are dismissed. Criminal Appeal No. 172 of 1987 is also dismissed subject to the modifica¬tion of sentence as indicated hereinbefore. CH. P. K. MISRA, I agree. Revision by informant and Appeal by Govt. dismissed Appeal by accused dismissed subject to modification of sentence.