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2017 DIGILAW 368 (ORI)

Umesh Pani v. State of Orissa

2017-04-06

S.K.SAHOO

body2017
JUDGMENT : S.K. Sahoo, J. Appellant no.1 Umesh Pani, appellant No.2 Jatia Parida and appellant No.3 Dharanidhar Pani faced trial in the Court of learned Sessions Judge, Dhenkanal in S.T. Case No. 62-D of 1987 for the offence punishable under sections 302/34 of the Indian Penal Code on the accusation that on 19.02.1987 at about 7.00 p.m. at village Nayasiaridoli, they committed murder of Budhimanta Parida (hereinafter ‘the deceased’) by assaulting him with lathis in furtherance of their common intention. Appellant no.3 Dharanidhar Pani was further charged under section 323 of the Indian Penal Code for voluntarily causing hurt to one Gobinda Parida by assaulting him with lathi. The learned Trial Court vide impugned judgment and order dated 24.08.1991 found the appellants guilty under section 304 Part-II read with section 34 of the Indian Penal Code and sentenced each of them to undergo rigorous imprisonment for one year. Appellant no.1 Umesh Pani was found guilty under section 323 of the Indian Penal Code and he was sentenced to undergo simple imprisonment for one month and the sentences so far as appellant no.1 is concerned, were directed to run concurrently. 2. The prosecution case, as per the First Information Report (Ext.1) lodged by Laxman Parida (P.W.1) before the officer in charge, Bhuban Police Station is that on 19.02.1987 his father Satrughna Parida had been to his groundnut field situated in Mouza Gopalpur where he found that somebody had uprooted the groundnut plants. Suspecting that somebody had committed theft of the groundnut plants, Satrughna Parida abused in general but appellant no.1 Umesh Pani who was present at the spot thought that Satrughna Parida was abusing him. Accordingly, he protested and during quarrel between the two, appellant no.1 gave slaps to Satrughna Parida. The deceased who was the elder brother of the informant had been to Bhuban and he returned home in the evening hours and came to know about the quarrel between his father and appellant no.1. Accordingly, the informant and the deceased proceeded to the house of appellants and challenged appellant no.3 Dharanidhar Pani, father of appellant no.1 as to why appellant no.1 assaulted their father without any fault. All on a sudden, all the three appellants assaulted the deceased by means of lathis on different parts of his body including head, as a result of which he fell down on the ground sustaining bleeding injuries. All on a sudden, all the three appellants assaulted the deceased by means of lathis on different parts of his body including head, as a result of which he fell down on the ground sustaining bleeding injuries. Appellant no.1 Umesh Pani also assaulted the informant on his head as a result of which he also sustained bleeding injury on the head. Gobinda Parida, who had been to the spot tried to separate the parties was also assaulted by appellant no.3 Dharanidhara Pani on his hands by lathi for which he sustained swelling injuries. It is stated in the F.I.R. that the co-villagers namely, Radha Mohan Sarangi (P.W.4), Mayadhar Parida (P.W.2) and Gobinda Parida had seen the occurrence. P.W.1 Laxman Parida orally reported the matter on 19.02.1987 before P.W.12 Rajkishore Pradhan, S.I. of Police of Surapratappur outpost under Bhuban Police Station, which was reduced into writing and P.W.12 made station diary entry and sent the report to the officer in charge, Bhuban Police Station for registration of the formal F.I.R. and accordingly, Bhuban P.S. Case No. 17 of 1987 was registered on 20.02.1987. The officer in charge, Bhuban Police Station directed P.W.12 to take up investigation and accordingly, P.W.12 examined the informant, sent the injured Laxman Parida (P.W.1) for medical examination to Bhuban Hospital along with the deceased and Gobinda Parida. On 20.02.1987 P.W.12 seized two lathis from the spot under seizure list Ext.3. He prepared the spot map (Ext.13), examined some witnesses and arrested the appellants and forwarded them to Court. The deceased was shifted to S.C.B. Medical College and Hospital, Cuttack and while undergoing treatment, he died on 26.02.1987. On 28.02.1987 P.W.13 Purna Chandra Mohanty, officer in charge, Bhuban Police Station took up investigation of the case and he made a prayer to the Court to convert the case to one under section 302 of the Indian Penal Code. He also arrested appellant no.3 Dharanidhara Pani and forwarded him to the Court. He seized the bed head ticket of the deceased from Bhuban hospital under seizure list Ext.7. He sent the lathis M.Os. I & II to the Medical officer, Bhuban Hospital for opinion regarding possibility of injuries on the deceased by such weapons. On completion of investigation, P.W.13 submitted charge-sheet against the appellants on 18.04.1987 under sections 302, 323 read with section 34 of the Indian Penal Code. 3. He sent the lathis M.Os. I & II to the Medical officer, Bhuban Hospital for opinion regarding possibility of injuries on the deceased by such weapons. On completion of investigation, P.W.13 submitted charge-sheet against the appellants on 18.04.1987 under sections 302, 323 read with section 34 of the Indian Penal Code. 3. After observing due committal formalities, the case of the appellants was committed to the Court of Session for trial where the learned Trial Court framed charge against the appellants on 27.09.1988 and since the appellants refuted the charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute them and establish their guilt. 4. The defence plea of the appellants was that there was a tussle between appellant no.1 Umesh Pani and the father of the informant for which the family members of the informant in order to take revenge waited till the evening and after darkness prevailed in, the prosecution party members formed an unlawful assembly and criminally trespassed into the courtyard of the appellant no.3 Dharanidhar Pani and the deceased assaulted appellant no.3 by means of a lathi on his head and when he attempted to give further blows, appellant no.3 got up and while running away into his room, the deceased followed him and while rushing into that room, his head came in contact with the rafter of the verandah, which was at a low height for which he fell down and thereafter, the prosecution party members assaulted the appellant no.3 as well as his wife Bhanu causing bleeding injuries and took away the deceased from the spot. 5. In order to prove its case, the prosecution examined fourteen witnesses. P.W.1 Laxman Parida who is the informant in the case is an eye witness to the occurrence. P.W.2 Mayadhara Parida did not support the prosecution case for which he was declared hostile. P.W.3 Pramoda Kumar Mohanty is a witness to the inquest over the dead body of the deceased, which was conducted by Mangalabag Police. P.W.4 Radhamohan Sarangi also did not support the prosecution case for which he was declared hostile. P.W.5 Nrusingha Ch. Rout is a witness to the seizure of the lathis, M.O.I and M.O.II under seizure list Ext.3. P.W.6 Dr. P.W.4 Radhamohan Sarangi also did not support the prosecution case for which he was declared hostile. P.W.5 Nrusingha Ch. Rout is a witness to the seizure of the lathis, M.O.I and M.O.II under seizure list Ext.3. P.W.6 Dr. Nilakantha Parida was the Medical Officer attached to Bhuban Hospital and he examined the deceased while he was in an injured condition so also P.W.1 Laxman Parida and Gobinda Parida. He also proved the medical examination reports of appellant no.3 Dharanidhar Pani and his wife Smt. Bhanu Pani, which were marked as Exts. 8 and 9 respectively. P.W.7 Smt. Baluri Parida is the mother of the deceased and she claimed herself to be an eye witness to the occurrence. P.W.8 Smt. Tilei Rout was the sister of the deceased and she also claimed herself to be an eye witness to the occurrence. P.W.9 Trilochan Mohanty stated about the quarrel between appellant no.1 Umesh Pani and Satrughna Parida, father of the informant in the groundnut field in the morning hours. P.W.10 Dr. Suniti Acharya was the lecturer in the Department of F.M.T, S.C.B. Medical College and Hospital, Cuttack who conducted post mortem examination over the dead body and proved her report, Ext.10. P.W.11 Bhagaban Gochhi was the constable attached to the Medical outpost, who carried the dead body for post mortem examination and produced the wearing apparels of the deceased before the officer in charge of Mangalabag Police Station after post mortem examination. P.W.12 Rajkishore Pradhan was the Sub-Inspector of Police of Surapratappur outpost, who is the Investigating Officer of the case. P.W.13 Purna Ch. Mohanty, was the officer in charge of Bhuban Police Station, who is the Investigating Officer of the case. P.W.14 Indramani Bhoi produced the in-patient records of the S.C.B. Medical College and Hospital relating to the deceased Budhimanta Parida, which was marked as Ext.16. The prosecution exhibited sixteen documents. P.W.13 Purna Ch. Mohanty, was the officer in charge of Bhuban Police Station, who is the Investigating Officer of the case. P.W.14 Indramani Bhoi produced the in-patient records of the S.C.B. Medical College and Hospital relating to the deceased Budhimanta Parida, which was marked as Ext.16. The prosecution exhibited sixteen documents. Ext.1 is the F.I.R., Ext.2 is the inquest report, Ext.3 is the seizure list, Exts.4, 5 & 6 are the medical examination reports of the injured Budhimanta Parida (deceased), Laxman Parida (P.W.1) and Govinda Parida respectively, Ext.7 is the bed-head ticket of the deceased, Ext.8 is the medical examination report of the appellant no.3, Ext.9 is the medical examination report of the injured Bhanu Pani, wife of appellant no.3, Ext.10 is the post mortem report, Ext.11 is the command certificate, Ext.12 is the dead body challan, Ext.13 is the spot map, Ext.14 is the seizure list of bed head ticket of deceased Budhimanta Parida, Ext.15 is the zimanama and Ext.16 is the in-patient records of the deceased. The prosecution also proved two material objects. M.O.I and M.O.II are the lathis. No witness was examined on behalf of the defence. 6. The learned Trial Court after analyzing the evidence on record, has been pleased to hold that the death of the deceased was homicidal in nature. It is further held that no reliance can be placed on the evidence of P.W.7 and P.W.8 to brand them as eye witnesses to the occurrence. It is further held that merely because M.O.I and M.O.II were seized from the courtyard of the appellant no.3 Dharanidhar Pani, it would not negative the prosecution case and that there were assault and counter assault for which cases were started and during the course of assault, the deceased sustained head injury and fell down unconscious and was removed from the place of occurrence. It was further held that there was no reason to disbelieve the evidence of P.W.1 regarding the assault on the deceased and Laxman Parida (P.W.1). However, it was held that there was no intention on the part of the accused persons to kill the deceased and accordingly, it was held that the appellants assaulted the deceased in furtherance of common intention without any intention to kill him but only to cause injuries on him. 7. Mr. However, it was held that there was no intention on the part of the accused persons to kill the deceased and accordingly, it was held that the appellants assaulted the deceased in furtherance of common intention without any intention to kill him but only to cause injuries on him. 7. Mr. Baibaswata Panigrahi, learned counsel appearing for the appellants contended that when out of five eye witnesses examined by the prosecution during trial, two of them i.e. P.W.2 and P.W.4, who were the independent witnesses, did not support the prosecution case and P.W.7 and P.W.8, who are related to the deceased, have been disbelieved by the learned Trial Court as eye witnesses to the occurrence, conviction of the appellants solely relying upon the statement of P.W.1 is not proper and justified when his evidence is not truthful and aboveboard. Learned counsel further contended that even though the presence of P.W.1 being an injured witness cannot be disputed at the spot but the injuries are not the criteria to put stamp of absolute truthfulness on his version and there are several infirmities in his evidence, which has been overlooked by the learned Trial Court resulting in serious miscarriage of justice. Learned counsel for the appellants further contended that the ocular testimony of P.W.1 runs contrary to the medical evidence and the prosecution case that the occurrence took place on the road in front of the house of the accused persons is not acceptable in view of the fact that the weapons of offence were seized from the inside courtyard of the house of appellant no.3. It is further contended that the appellant no.3 as well as his wife, both have sustained injuries and the explanation which has been offered by P.W.1 in that respect in the Court for the first time, should not be accepted. It is further contended that the appellant no.3 as well as his wife, both have sustained injuries and the explanation which has been offered by P.W.1 in that respect in the Court for the first time, should not be accepted. He further contended that when there is only one injury sustained by the deceased on his head as per the medical examination report and the materials available on record indicate that the prosecution party members are the aggressors and on the fateful day they criminally trespassed into the house of the appellant no.3 and assaulted him as well as his wife, therefore, even if it is accepted that one injury was caused to the deceased, it cannot be said that the appellants have exceeded their right of private defence and therefore, it is a fit case where benefit of doubt should be extended to the appellants. Mr. Prem Kumar Pattnaik, learned Addl. Govt. Advocate, on the other hand contended that it is not the quantity but the quality of evidence, which is relevant and when the learned Trial Court found that the evidence of P.W.1 to be absolutely truthful and reliable, he was justified in placing implicit reliance on his testimony. It is further contended that the contradictions, which are appearing in the evidence of P.W.1, do not go the root of the case and therefore, the conviction of the appellants is quite justified. 8. Adverting to the contentions raised by the learned counsel for respective parties and looking at the medical evidence so far as the deceased is concerned, it appears that the deceased was first treated at Bhuban hospital by P.W.6 Dr. Nilakantha Parida, who was the Medical Officer in the said hospital and who examined him on 19.02.1987 and noticed one bruise of size of 3’’ x 2’’ over the left temporal region. He reserved his opinion but opined that the injury might have been caused by hard and blunt weapon. Since at that point of time the deceased was unconscious, he referred him to S.C.B. Medical College and Hospital, Cuttack. There is also no dispute that while undergoing treatment, the deceased died at S.C.B. Medical College and Hospital, Cuttack on 26.02.1987. P.W.10 Dr. Suniti Acharya, who conducted postmortem examination, noticed two external injuries, the first one is a partially healed wound of size 3.5 cm. x 1 cm. on left frontal region, situated 5 cm. There is also no dispute that while undergoing treatment, the deceased died at S.C.B. Medical College and Hospital, Cuttack on 26.02.1987. P.W.10 Dr. Suniti Acharya, who conducted postmortem examination, noticed two external injuries, the first one is a partially healed wound of size 3.5 cm. x 1 cm. on left frontal region, situated 5 cm. above the mid-point of left eye and another partially healed injury of size 2 cm. x 0.25 cm. situated on the left parietal region 3 cm. away and back to previous injury. The doctor noticed some injuries on dissection and opined that the injuries were ante mortem in nature and death was due to shock and haemorrhage as a result of the head injury and she further opined that the injuries were sufficient to cause death in ordinary course of nature. Learned counsel for the appellants has not challenged the findings of the postmortem report and also the cause of death of the deceased. After going through the evidence on record particularly the inquest report (Ext.2), evidence of P.W.10 and postmortem report Ext.10, I hold that the prosecution has conclusively established that the death of the deceased was homicidal in nature and the findings of the learned Trial Court in that respect, is quite justified. 9. Coming to the evidence of the eye witnesses to the occurrence, admittedly out of the five eye witnesses examined during trial, P.W.2 and P.W.4 have not supported the prosecution case. Though P.W.7 and P.W.8, who were the mother and sister of the deceased respectively deposed as eye witnesses to the occurrence, but their previous statements were confronted to them and it was proved through the I.O. that they were the post-occurrence witnesses. Therefore, the learned Trial Court is quite justified in observing that no reliance can be placed on the evidence of P.W.7 and P.W.8 to brand them as eye witnesses to the occurrence. The learned Trial Court has placed reliance upon the testimony of P.W.1 Laxman Parida as an occurrence witness. Law is well settled that in order to base conviction on the solitary testimony of a witness, the evidence must be clear, cogent, truthful, absolutely reliable and above board and it should inspire confidence. P.W.1 is related to the deceased as his younger brother. Law is well settled that in order to base conviction on the solitary testimony of a witness, the evidence must be clear, cogent, truthful, absolutely reliable and above board and it should inspire confidence. P.W.1 is related to the deceased as his younger brother. Merely because a witness is related to the deceased, his evidence cannot be per se discarded if it is otherwise found to be cogent and credible. Being a relative, it would be his endeavour to see that the real culprits are punished and he would not allow the real culprit to escape unpunished and implicate wrong persons in the crime. If the evidence of a relative is found to be consistent and trustworthy, free from infirmities or any embellishment after careful scrutiny, the same can be relied upon. P.W.1 has stated that on the date of occurrence, when the appellant no.1 Umesh Pani gave slaps to his father Satrughna Parida near the groundnut field, his father came and intimated about the incident. At that point of time, the deceased was not present in the house and when he returned, he was told about the incident. P.W.1 further stated that he himself and the deceased went to the house of the accused persons to confront the matter and they found appellant no.3 Dharanidhar Pani was standing in front of his house and when the deceased confronted the appellant no.3 about the morning incident, all the appellants came being armed with lathis and assaulted the deceased as a result of which the deceased got swelling on his head, back and chest and he fell down on the ground becoming senseless. P.W.1 has further stated that when he intervened, appellant no.1 Umesh Pani assaulted him with a lathi on his left side head and when appellant no.1 was raising his lathi to assault him further, he caught hold of that lathi and during assault, the lathi struck on the body of appellant no.3 Dharanidhar Pani. P.W.1 further stated that Gobinda Parida also reached there and when he intervened, he was also assaulted by appellant no.3 Dharanidhar Pani. P.W.1 further stated that Gobinda Parida also reached there and when he intervened, he was also assaulted by appellant no.3 Dharanidhar Pani. P.W.1 further stated that as a result of the assault, he sustained swelling injury on his hand and at that point of time, the wife of Dharanidhar Pani namely, Bhanu Pani came running towards the place of occurrence but she stumbled on the way and fell down on a heap of logs, as a result of which she also sustained some injuries. Then the accused persons ran away towards their house by throwing the lathies at the spot. Satrughna Parida, who is the father of P.W.1 could not be examined during trial as he was dead when the trial commenced. In the cross-examination, P.W.1 has stated that the accused persons gave several blows on the chest and back of the deceased but he had not marked how many blows they gave on the chest and back. He further stated that appellant no.2 Jatia Parida assaulted on the chest only and appellant no.3 Dharanidhar Pani assaulted on the back only. On perusal of the post mortem report (Ext.10) as well as the injury report of the deceased, which was proved by P.W.6 as Ext.4, it indicates that there were no injuries either on the chest or on the back. Sufficient weightage has to be given to the medical evidence where the eye witness account is found to be not credible and trustworthy. Therefore, the evidence of P.W.1 that appellant no.2 Jatia Parida assaulted the deceased only on the chest by lathi and appellant no.3 Dharanidhar Pani assaulted the deceased only on his back and that the deceased sustained swelling injuries on the back and chest cannot be accepted in view of the medical examination report. P.W.1 stated that he has marked that the accused persons gave only one blow on the head of the deceased. This statement runs contrary to his evidence that appellant no.2 assaulted on the chest only and appellant no.3 assaulted on the back only. P.W.1 has stated that when they arrived at the spot, at that point of time, appellant no.3 Dharanidhar Pani was standing alone and he was not holding anything in his hand. P.W.1 has not stated that thereafter, appellant no.3 went and brought any weapon. P.W.1 has stated that when they arrived at the spot, at that point of time, appellant no.3 Dharanidhar Pani was standing alone and he was not holding anything in his hand. P.W.1 has not stated that thereafter, appellant no.3 went and brought any weapon. Therefore, it is shrouded in mystery as to how the weapon came in the hands of appellant no.3. The medical examination report of appellant no.3 Dharanidhara Pani indicates that he had sustained one incised wound on the scalp, one bruise over the right side back and an abrasion on the right fore arm. The injuries have been opined to be simple in nature as per medical examination report, Ext.8. Similarly, the wife of appellant no.3 namely, Bhanu Pani had sustained two bruises, one on the 3rd and 4th lumbar vertebrae and another on the left knee and one liner abrasion on the shoulder joint. All the injuries were opined to be simple in nature as per her medical examination report Ext.9. The factual scenario in this case indicates that it is P.W.1 and the deceased, who had come to the house of the appellants to confront them about the morning incident in which the father of P.W.1 was slapped by appellant no.1 Umesh Pani. Though P.W.1 has stated that the occurrence took place in front of the house of the appellants but the evidence of the Investigating Officer indicates that as per the spot map (Ext.13), the occurrence took place in the courtyard of the house of appellant no.3. The Investigating Officer further stated that he seized the lathis, M.O.I and M.O.II from the courtyard of the appellant no.3, which was the place of occurrence in the case. There is also no dispute that a counter case was instituted against the informant and the other injured on the F.I.R. submitted by appellant no.3 and his wife on the very day, in which charge-sheet was also submitted and according to the Investigating Officer, the date, time and place of occurrence of both the cases are same. In view of such statement of the Investigating Officer and seizure of weapon of offence from inside the courtyard of the house of appellant no.3, the prosecution case that the occurrence in question took place in front of the house of the accused persons on the road cannot be accepted. In view of such statement of the Investigating Officer and seizure of weapon of offence from inside the courtyard of the house of appellant no.3, the prosecution case that the occurrence in question took place in front of the house of the accused persons on the road cannot be accepted. Therefore, the circumstances indicate that not only the prosecution party members including the deceased came to the house of the accused persons on the date of occurrence but they also trespassed into the house of the accused persons. The injuries on the person of appellant no.3 and his wife are of such a nature that it cannot be self inflicted though it was opined to be simple in nature. The explanation which has been given by P.W.1 regarding the injuries on appellant no.3 and his wife Bhanu Pani during trial has been stated for the first time in Court and it has been confronted to him and proved through the Investigating Officer that he has not stated in his statement recorded under Section 161 Cr.P.C. that when he intervened after assault on the deceased, he was assaulted by appellant no.1 by lathi on his head and that when appellant no.1 was raising his lathi to assault him further, he caught hold of that lathi and during the assault, the lathi struck the body of appellant no.3 Dharanidhar Pani and when Bhanu Pani, wife of appellant no.3 came to the place of occurrence, she stumbled on a heap of logs, as a result of which she sustained some injuries. These material contradictions in the evidence of P.W.1 would indicate that he is attempting to give an explanation regarding the injuries sustained by appellant no.3 and his wife for the first time in Court by modulating his evidence. Therefore, the evidence of P.W.1 that the deceased was assaulted by appellant no.2 on the chest and appellant no.3 on the back as well as the manner in which appellant no.3 and his wife sustained injuries are not acceptable. P.W.1 is trying to improvise his statement given before the police and his evidence that all the accused persons gave one blow on the head of the deceased is also not acceptable in view of the medical examination report. P.W.1 is trying to improvise his statement given before the police and his evidence that all the accused persons gave one blow on the head of the deceased is also not acceptable in view of the medical examination report. Law is well settled that the ocular testimony of an injured witness has greater evidentiary value and his presence at the scene of crime cannot be disputed and he is unlikely to spare his actual assailant in order to falsely implicate someone. Though normally Court gives much weight to the evidence of an injured witness, but the injuries to a witness may indicate his presence at the time of incident, but from that it does not flow that his evidence is to be accepted automatically. (Ref:-(2010) 47 Orissa Criminal Reports (SC) 638 Badrilal Vrs. State of Madhya Pradesh). Learned counsel for the State placed reliance in the case of Ghanasham Dass Vrs. The State (Delhi Administration) reported in AIR 1979 SC 44 and submitted that even though it is presumed that the deceased had criminally trespassed into the house of appellant no.3 but since he was not armed, there could not have been any apprehension to the accused persons and therefore, the accused persons exceeded their right of private defence. Learned counsel for the appellants, on the other hand, placed reliance on the case of Lakshmi Singh Vrs. State of Bihar reported in AIR 1976 SC 2263 wherein it is held that there might be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear, cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. The factual scenario of Ghanasham Dass (supra) is different. Looking at the ratio laid down by the Hon’ble Supreme Court in the case of Lakshmi Singh (supra) and coming to the facts of the case, it appears that the injuries sustained by appellant no.3 and his wife cannot be said to be possible by self infliction, even though they are simple injuries and those injuries cannot be said to be minor and superficial in nature. One of the injuries sustained by appellant no.3 was on the head and it was an incised wound. The evidence of P.W.1 is not so clear and cogent and his evidence runs contrary to the medical evidence and he is modulating his evidence to give an explanation regarding the injuries sustained by appellant no.3 and his wife Bhanu Pani for the first time in Court. Therefore, I am of the view that the learned Trial Court was not justified in accepting the evidence of P.W.1 merely because he is an injured witness. The surrounding circumstances clearly indicate that the prosecution party members including the deceased were the aggressors and they entered inside the house of the appellants on the fateful day and caused injuries to appellant no.3 and his wife. Only one injury appears to have been caused to the deceased and since in respect of such injury, the evidence of P.W.1 is full of contradictions, on close scrutiny, I am of the view that P.W.1 cannot be said to be an absolutely reliable witness on whom implicit reliance can be placed. Therefore, the order of conviction of the appellants under section 304 Part-II of the Indian Penal Code cannot be sustained in the eye of law and accordingly, the same is hereby set aside. 10. Coming to the conviction of appellant no.1 Umesh Pani under section 323 of the Indian Penal Code, it appears that charge under section 323 of the Indian Penal Code was framed only against appellant no.3 Dharanidhar Pani to have assaulted to one Gobinda Parida, who has not been examined. When no charge was framed against appellant no.1 under section 323 of the Indian Penal Code for assaulting P.W.1, the conviction of the appellant no.1 for such offence is also not sustainable in the eye of law. 11. In the result, the Criminal Appeal is allowed. The impugned judgment and the order of conviction of the learned Trial Court are hereby set aside. The appellants are on bail. They are discharged from the liability of their bail bonds. Their personal bonds and the surety bonds stand cancelled.