JUDGMENT : Biswanath Rath, J. 1. In the aforesaid appeal, the appellants have assailed the judgment and order passed by the 1st Addl. Sessions Judge, Puri in S.T. Case No. 28/107 of 2007 sentencing both of the appellants Sudarsan Barik and Sukanta Mallick @ Sukanta Kumar Mallick to undergo imprisonment for life and to pay fine of Rs.10,000/- (Rupees Ten thousand only) each and in default to undergo R.I. for two years more, for committing offence under Section 302/34 of I.P.C. with further sentencing them to undergo S.I. for two years each for offence under Section 9(B) of Indian Explosive Act. All the sentences are to run concurrently. 2. The prosecution case as per the written report submitted by the informant one Ananta Parida reveals that the accused persons namely Raju @ Rajendra Das, Kalia Sahoo, Suratha Behera, Puria Behera, Sudarsan Barik (Present Appellant No.1), Hemanta Barik, Sukanta Mallick @ Sukanta Kumar Mallick (Present appellant No.2), Subash Malik & Akrura Mohapatra hatched out a plan to commit murder of the deceased Ajaya Parida and accordingly, on 29.08.2005 at about 1.30 P.M. they exploded bombs near Hat Delanga Out Post and in the same process, they chased the deceased upto Kanas Road Level Crossing and fired one round from a pistol there and also assaulted by sharp cutting weapon viz. sword and when Bijaya Parida (brother of the deceased) came to the spot, they also threatened him and then, they all left the spot with the weapon of offence. Written report further revealed that earlier also there had been several serious attempts on the informant as well as on his brothers and lastly accused have killed his brother involving the present incident. Immediately after the incident, one Ananta Parida, brother of the deceased submitted a written report (Ext.6) before the A.S.I. (Assistant Sub.-Inspector), Hata Delanga Out Post, the A.S.I. sent the report to the O.I.C. (Officer-in-Charge), Delanga P.S. for registration and the same was registered as Delanga P.S. Case No. 95/2005. The O.I.C., Delanga took charge of the investigation. Inquest over the dead-body was conducted in U.G.P.H.C. and the inquest report vide Ext.11 was prepared. The O.I.C., Delanga took charge of the investigation. Inquest over the dead-body was conducted in U.G.P.H.C. and the inquest report vide Ext.11 was prepared. After examining the witnesses, the I.O. (Investigating Officer) sent the dead-body to D.H.H. (District Health Hospital), Puri through dead-body challan (Ext.13) for postmortem examination, visited the spot, prepared spot map (Ext.14), seized the incriminating objects like old bicycle (M.O.II), remnants of exploded bomb (M.O. IV) and one pair of Chappal of blue color from the spot, prepared the seizure list (Ext.9/2), collected blood stained earth, sample earth and prepared seizure list (Ext.10/2) and seized the motor cycle (M.O.I) in which the accused persons had come to the spot. After examining rest of the material witnesses, the I.O. conducted raid and arrested accused persons namely Kalia @ Kasinath Sahoo, Suratha @ Gedua Behera, Punia and Raju @ Rajendra Dash. After completion of investigation the I.O. submitted charge-sheet against the accused persons for commission of offence under Sections 302/294/34 of I.P.C. and Sections 25/27 of the Arms Act read with Section 9(b) of the I.E. Act, Sessions Trial procedure was adopted to prosecute the accused persons to establish their guilty. 3. In order to prove its case, the prosecution examined as many as 21 witnesses and proved 17 documents marked as Ext.s1 to 7 and also relied on materials objects marked M.O. I to M.O. X. The defence, on the other hand, neither examined any witness nor exhibited any documents. 4. Defence plea of the appellants was one of complete denial. 5. Based on the materials available on record, scanning of evidences and consideration of the rival contentions, the trial Court was of the view that the accused person in furtherance of their common intention exploded bomb and inflicted injuries on the deceased Ajaya Parida by means of sword, which amounts to culpable homicide amounting to murder and consequently, held both of the appellants guilty under Sections-302/294/34 of I.P.C. read with Section 9(b) of the I.E. Act but acquitted both of them so far as the offence under Section 294 of I.P.C. by holding that the prosecution has failed to prove said charge against the accused persons beyond all reasonable doubts. Based on conviction, the trial Court also sentenced both the accused to undergo imprisonment for life and to pay fine of Rs.10,000/- each and in default to undergo further R.I. of two years for the offence under Section 302 of I.P.C. with further sentence to both the appellants to undergo S.I. for two years each for the offence under Section 9(B) of the I.E. Act with a direction that the sentences are to run concurrently. 6. Assailing the impugned order, learned counsel for both the appellants contended that the impugned judgment and order runs contrary to the materials available on record and has been recorded without application of judicial mind. The conviction is based on surmises, conjecture and even based on materials beyond the case record. There is no specific overt act assigned in respect of any of the particular appellants. Even though several persons were present at the occurrence site, but the prosecution failed in bringing convincing evidence to rope in either of the appellant in the commissioning of the offences. Statements of eye witnesses P.Ws.15 & 20 clearly varies from the other. Evidence of P.W.12 nowhere proves the charges against the appellants, similarly P.W.11’s evidence fails to implicate the appellants. Doctor’s report is the outcome of manipulation of information available during postmortem. There is improper assessment of the evidence of vital witnesses with the discrepancies in the evidence of the vital witnesses. It is claimed that benefit should have gone in favour of the accused persons. There is no supporting of eye witnesses with the prosecution case, reiterating the grounds taken in the appeal memo in CRLA No. 350 of 2009 learned counsel for appellant argued that the findings recorded by the Sessions Court are against weight of materials available on record. The witnesses relied on by the learned trial Court stand at variance with each other, it is also devoid of any substance, finally contended that the conviction is based on insufficient evidence and the appellants consequently, prayed for their acquittal. 7. Mr. Katakia, learned Additional Government Advocate on the other hand contended that the evidence of occurrence witnesses such as P.Ws.1, 10, 14, 15, 18 & 20 being unimpeachable and trustworthy learned trial Court has not committed any illegality in accepting their entire version and convicting the appellants. 7. Mr. Katakia, learned Additional Government Advocate on the other hand contended that the evidence of occurrence witnesses such as P.Ws.1, 10, 14, 15, 18 & 20 being unimpeachable and trustworthy learned trial Court has not committed any illegality in accepting their entire version and convicting the appellants. Sri Katakia, learned AGA further contended that looking to the gravity of the offence and materials available on record, no leniency should be shown to either of the appellants. Sri Katakia, learned AGA claims that because of use of material objects like hurling bombs, any sympathy to be shown to the appellants will just be misplaced and will create a danger in running of the society. 8. It is not in dispute that the deceased met with a homicidal death. The doctor (P.W.-7) conducted postmortem examination found the following external and internal injuries:- “(ii) There was an incised wound of size ½” x ½” x ½” on left fore-arm on ventral aspect. (iii) Incised wound Incised wound size 4” above the right ankle cutting both the bones of the leg. Only a tag of skin was left. (iv) Lacerated wound of size 2½” ½” x ½” on the dorsal aspect of right thumb. (v) Penetrating wound of size 1” x ½” communicating to the thorasic cavity on right side in the back at the level 4½” below the anterior angle of scapula. (vi) Incised wound of size 5½” x 4” communicating to the carnial cavity in the occipital region. On opening the occipital bone was cut of size 3” x 3½” with laceration of membrance and brain matter. 9. Looking to the maxim that the evidence has to be weighed and not to be counted and the common parlance that it is the quality in evidence and not quantity of the evidence proving a fact, this Court now proceed to scan the materials available on record to find sustainability of the conviction under challenge. The deceased has got the following injury report:- “(vii) On dissection-there is a haemotoma over the entire anterior chest wall in left side. On opening of the thorasic cavity, the cavity was full with blood, a metallic bullet found in the lung tissue which was of brass colour. The lungs (lower and middle lope) lacerated with the lower lope of the left lung. On opening of the thorasic cavity, the cavity was full with blood, a metallic bullet found in the lung tissue which was of brass colour. The lungs (lower and middle lope) lacerated with the lower lope of the left lung. The lung was pale, heart intact and empty, spleen, lever, kidney are intact and pale, stomach intact and empty, brain matter in the occipital region lacerated and pale.” 10. Though several persons are cited in the charge sheet as witness only the mother (P.W.15) and a brother (P.W. 20) of the deceased implicated the accused persons. Learned trial court has mostly relied on evidence of P.W.15 and P.W. 20. In her evidence P.W. 15 has stated that at the time of occurrence she was present in the railway quarters which is situated near the Kanas Road level crossing. At about 1 to 1.30 A.M she saw her son Ajay Parida was running and he was dashed by a motor cycle by a person who is called ‘Bhaina’. Accused Sudarsan and Kalia were sitting on the Motor Cycle while other accused persons standing in the dock and along with others were running behind the motor cycle. The person driving the motorcycle namely ‘Bhaina’ was holding a pistol whereas others were holding sword and were assaulting Ajay. Then again says the person who was driving the motor cycle was Raju Das who was holding a Pistol. After assaulting his Son all of them fled away. In X-Exam. in para six this witness said she cannot say how many of the assailants were holding lathi and how many were holding sword. Accused Raju Das at the first instance fired at her son and after he fell down other accused persons assaulted him mercilessly by lathi and sword. 11. Now looking to the 2nd eye witness the P.W. 20 the brother of the deceased, this witness has stated that at the time and date of occurrence he was standing in his own field and after hearing sound of explosion of bombs from Bazar side he rushed towards level crossing to ascertain the facts and saw the accused persons namely Raju Das, Sudarsana Barik and Kasinath Sahu coming in a Hero Honda Motorcycle, dashed the deceased near the level crossing. The accused Raju Das was driving the motor cycle. The accused Raju Das was driving the motor cycle. The accused Sudarsan Barik and Kashinath Sahu got down from the motorcycle and assaulted the deceased by means of sword. Other accused persons namely Sukanta Mallika, Suratha Behera, Purushottam behera, Hemanta Barik, Akrura Behera and Subash Mallik wearing black shirt and pants rushed to the spot being armed with Khanda and Talwar, assaulted the deceased and then fled away from the spot. In cross examination, this witness further submitted that he came to the spot only after hearing the explosion of bomb. He has a specific statement that he is a witness to the occurrence for about two minutes and his brother was assaulted by the accused persons except the accused Raju. In paragraph No.9 he has also a specific statement that not only he was booked in N.S.A. after the murder of the brother-of the deceased but he has also been implicated in as many as 8 to 9 criminal cases by the Delanga Police. This witness has admitted that brother of the deceased is a post occurrence witness. 12. Now coming to scan the evidence of Bijay Kumar Mallick (P.W.1), Pabitra Parida (P.W.10), Dibakar Sahu (P.W.14), Sidhartha Sankar Mangaraj (P.W.18). The above prosecution witnesses appear to be occurrence witnesses. P.W.1 was a constable in Delanga Police Station, who has seen the occurrence through window of his office and his case is that while the deceased-Ajaya Parida was running and he was being chased by a person covering his face with a napkin followed by two other persons, who were holding sword. The person who had covered his face with cloth was holding a pistol. This witness could not identify any of the persons chasing the deceased. He found at the spot a girl in injured condition, sustained injuries due to explosion of bombs. In cross examination, he has flatly denied to have stated before the I.O. that Sudarsan Barik was running behind the deceased being armed with pistol and Puria and Hemanta were running being armed with bomb and that accused Raju Das was chasing in a motorcycle and further, Kalia was sitting in a motorcycle of Raju Das holding a sword while Sukanta, Gedua, Subash, Akrura were running behind them and armed with sword. From bare reading of the evidence of P.W. No.1, this Court finds even though this witness had seen the occurrence through the window of his office but has a complete different case. He in his chief examination specifically deposed that Ajay Parida was running and he was being chased by a person covering his face with napkin followed by two other persons, who were holding sword. This witness has failed to identify any of the assailants. 13. Coming to scan the evidence of P.W.10 (Pabitra Parida), who is claiming to be an occurrence witness and a cultivator of the same village. This witness has been declared as hostile by the A.P.P. 14. Coming to scan the evidence of P.W.14 (Dibakar Sahu) another occurrence witness. This witness has also been declared as hostile by the A.P.P. Even though the trial Court permitted the prosecution for putting leading questions, the prosecution could not be able to elicit anything from him to support its case. 15. Coming to scan the deposition of P.W. 18 (Sidhartha Sankar Mangaraj), a Habildar discharging his duty at the relevant point of time in Delanga Hat Bazar Outpost, P.W. 18 stated that he moved towards the occurrence place being directed by the Constable-Bijay Kumar Malik. On his proceeding towards level crossing, he found seven to eight persons being armed with deadly weapons assaulting another person. Even though he followed the assailants, but he could not identify any of them. Scanning of all these occurrence witnesses, this Court does not find any support to the prosecution case. 16. From examining the evidence of P.W.12 (Sashmita Routray), who sustained injury due to explosion of bomb and P.W.11 (Swagatika Das), a student accompanying P.W.12 at the time of incident, this Court finds they were all declared hostile by the A.P.P. 17. From the investigation, it reveals that there is political rivalry between the deceased and his brothers in one hand and the accused Sudarsan Barik and eight others on the other hand. It further reveals from the investigation that the deceased and his brother Ananta Parida was member of ruling party i.e. Biju Janata Dal (B.J.D) and due to his highhandedness being the President of the village committee, he exercised muscle powers over others and further in view of rivalry between them, the accused persons unitedly attacked over the deceased in order to take revenge. 18. 18. From examining the evidence of P.W.7 (Dr. Pramod Kumar Mohanty) the doctor who has conducted postmortem of the deceased, this Court finds the death occurred due to shock and hemorrhage and also due to injury to the vital structures like brain, lungs etc. and further finds that the injuries, which have been detected, can be caused by sharp cutting weapon like sword. Laceration can be caused by the blunt side of sword and by dashing of the motorcycle. Injury No.7 can be caused by fire-arm like pistol and the injuries are sufficient to cause death of a person. 19. From examining the testimony of the above witnesses, it is emphasized that since the materials disclose Raju Dash was holding a pistol and he fired the shot on the deceased, Raju Dash is only liable for commission of the crime like murder. It is ultimately observed that the other appellants committed the act in furtherance of their common intention. 20. From the discussions made hereinabove, particularly from the statement of the eye witnesses as well as the occurrence witnesses P.W.s 1, 10, 14, 15, 18 & 20 respectively this Court also observes, that many of them ruled out the participation of the accused persons in commissioning of the crime and out of them one even has gone to the extent saying that the assailants had covered their faces and they were three. Even though P.W.1 categorically stated that after hearing the sound of explosion of bomb, he went to the place of incident and saw that the deceased was running and he was being chased by a person covering his face with a napkin followed by two other persons, who were holding sword and the person who had covered his face with cloth was holding a pistol. Further he submitted that he could not be able to identify any of the person. There are serious contradictions. Similarly, P.W.11 and P.W.12 also remain totally silent. This Court finds name of the assailants have been very much there in the FIR. The deceased and his relatives at one hand and the accused persons including these two appellants on the other hand were in group rivalry as well as political rivalry. There are serious contradictions. Similarly, P.W.11 and P.W.12 also remain totally silent. This Court finds name of the assailants have been very much there in the FIR. The deceased and his relatives at one hand and the accused persons including these two appellants on the other hand were in group rivalry as well as political rivalry. Thus, it is not surprised that the independent witness opted to maintain distance by not specifically naming the assailants and consequently not naming the assailants of the occurrence witnesses, cannot be a reason to disbelieve the testimony of eye witness P.W.15. Challenging the reliability of the eye witness P.W.20, it is further pointed out that if his ocular accounts were correct then the deceased would have received many more number of injuries than what has been reflected in the postmortem report. 21. This argument of the appellants appears some significance it therefore, needs some careful consideration. The prosecution story reveals that a number of persons were chasing the deceased. P.W. 20 has not named any person assaulting the deceased and on the other hand his categorical statement is that when he reached the site of occurrence, he saw his brother was being assaulted by the accused persons except the accused Raju. This makes it clear that the two appellants herein were involved in the assault on the deceased and from the totality of the evidence, it appears that presence of these two appellants in the spot of occurrence cannot be ruled-out. Under the circumstances, it is now necessary to find out as to whether on the basis of testimony of P.Ws.15 & 20, the appellants can be said to have committed offences punishable under Sections 302/34 of I.P.C read with Section 9 (B) of the I.E. Act. 22. P.W. 15, mother of the deceased categorically submitted that the person who was driving the motorcycle was Raju Das and was also holding a pistol. Apart from Raju Das, she had also named Sudarsan and Kalia who are the persons sitting in the motorcycle being driven by Raju. Even though she could see Raju Das at the first instance fired to her son but unable to identify the persons giving sword assault to her son-the deceased. Apart from Raju Das, she had also named Sudarsan and Kalia who are the persons sitting in the motorcycle being driven by Raju. Even though she could see Raju Das at the first instance fired to her son but unable to identify the persons giving sword assault to her son-the deceased. Similarly, P.W.20 not only told that Raju Das, Sudarsan Barik and Kasinath Sahu were coming in a Hero Honda Motorcycle but also told that Sudarsan Barik and Kasinath Sahu got down from the motorcycle and assaulted the deceased by means of sword and Sukanta Mallick the appellant No.2 along with five other persons were also present on the spot being armed with Khanda and Talwar, assaulted the deceased and fled away from the spot. From the medical report, it is found that there are three incised wounds. According to medical report, the deceased had also received one gunshot i.e. a metallic bullet struck in one of the lungs of the deceased. It is not specifically stated as to whether these appellants have caused any such injury available on the body of the deceased. Thus, in absence of evidence as to who inflicted which injury and the number of assailants being more than eight and the deceased having sustained three incised wounds, cannot bring whom charge of offences under Sections 302/34 of I.P.C. as against these two appellants and therefore, this Court does not find any force in the submission of the State Counsel in the said regard. 23. There is no personal attribution against either of the accused persons as regards assault on the deceased. So many persons assaulted, with the number of injuries and availability of so many persons, in absence of personal attachment, it is difficult to bring the assault part by sword on Sukanta Mallika. P.W. 20 though claimed to be an eye witness but in the entire cross examination this witness specifically stated that he has seen the occurrence for about two minutes and the deceased was assaulted by all the persons there except Raju Das. Therefore, it is not at all possible to attach the assault by sword on either of the appellants. P.W. 20 though claimed to be an eye witness but in the entire cross examination this witness specifically stated that he has seen the occurrence for about two minutes and the deceased was assaulted by all the persons there except Raju Das. Therefore, it is not at all possible to attach the assault by sword on either of the appellants. Further in view of the specific statements of the witness particularly, P.W.20 in paragraph No.9 of the cross examination part that he has been implicated in as many as 8 to 9 criminal cases, this Court finds it also difficult to trust a witness having so many criminal cases against him. 24. Since there is no evidence that all the assailants had shared a common intention of causing death or causing such bodily injury, which is likely to cause death and further following the observation of the Apex Court made in Afrahim Sheikh & Ors. Vs. State of West Bengal as reported in AIR 1964 SC 1263 and further looking to the provision contained in Section 34 of I.P.C., it appears that it cannot be presumed that these appellants had the intention to cause death or cause such bodily injury which is likely to cause death. Considering the fact that the assailants were in large number armed with sharp cutting weapons and giving a good chase to the deceased, who was ultimately knockdown by a person driving the motorcycle other than these appellants and thereafter bitten by means of sharp cutting weapons, gives a reasonable conclusion that this is a case of individual act with the knowledge that death was likely consequence of the criminal act and under the circumstances, this Court holds the order of conviction of the present appellants under Section 302 read with Section 34 of I.P.C is unsustainable but they are liable to be convicted under Section 304 (Part II) read with Section 34 of I.P.C. 25. Now coming to the aspect of Section 9(B) of the I.E. Act, this Court does not find sufficient evidence to fasten the culpability on any of the accused persons for the use of explosive substance. Therefore, none of them can also be said to be guilty of offence punishable under Section 9 (B) of the I.E. Act and from which both the appellants are acquitted hereby. 26. Therefore, none of them can also be said to be guilty of offence punishable under Section 9 (B) of the I.E. Act and from which both the appellants are acquitted hereby. 26. Accordingly, we set-aside the order of conviction under Section 302 read with 34 of I.P.C. and Section 9(B) of the I.E. Act passed by the 1st Addl. Sessions Judge, Puri in S.T. Case No. 28/107 of 2007 but in view of the peculiar facts and circumstances indicated hereinabove, both the appellants are convicted under Section 304 Part-II read with Section 34 of I.P.C. and sentence them to undergo R.I. for 10 years. Perusal of order-sheet in the appeal discloses both the appellants are in custody. Considering the submission of learned counsel for the appellants that both the appellants have already spent more than 10 years in custody by now, this Court directs release of the appellants from custody forthwith, if their detention is not required in any other case. 27. The Criminal Appeal is accordingly allowed in part by modifying the impugned judgment of conviction and sentence to the extent indicated above.