B. P. DAS, J.

( 1 ) THIS appeal is directed against an order passed by the learned Sub-Divisional Judicial Magistrate, Chatrapur acquitting the accused persons of the charge under Sections 147/325/323/454/380/149, I. P. C.

( 2 ) THE brief fact of the case is that the informant Khalli Raulo purchased a thatched house in village Pratapur in a Court auction sale. On 21-12-1977 while he along with his son Rabindra and Prabhakar was dismantling the house to construct a Pucca house thereon, all the accused persons attacked them being armed with weapons like kati, crowbar, lathis, etc. , and assaulted the complainant with lathi causing bleeding injury on his nose. Out of fear, the complainant along with his sons fled away and took shelter in the house of P. W. 4. From that house they saw that the accused persons broke open the lock of their Pucca house which was adjacent to the aforesaid thatched house, and stole away a number of articles including rice, mung, utensils, clothes, cash, a cot and bed, boxes, etc. , worth Rs. 4,000. 00. On the aforesaid allegation, F. I. R. was lodged and investigation was taken up.

( 3 ) THE plea of the defence was complete denial. A specific plea was taken by the defence that the complainant never possessed the house which he was dismantling. Accused Balaram Rana with his wife, accused Sasi Rana and family members were residing in that house and the complainant with his relations forcibly drove out accused Balaram and his family members from that house by assaulting him as a result of which he sustained injuries and was medically examined. As the other accused persons protested to such high-handed action of the complainant and his relations, they have been falsely implicated in this case.

( 4 ) THE prosecution examined as many as 13 witnesses and none was examined on behalf of the defence.

( 5 ) THE trial Court after evaluating the evidence on record came to a conclusion that the prosecution has failed to prove beyond reasonable doubt that the accused persons assaulted and voluntarily caused grievous hurt to the complainant and simple hurt to the P. Ws. 5 and 8 and that they committed house breaking or lurking house trespass and theft in the dwelling house of the complainant. That apart, it was also the finding of the trial Court that there was no satisfactory evidence regarding use of force or violence by any of the accused persons as from the evidence it appears that the assembly of the accused persons at the alleged spot had no unlawful object but their purpose was only to dissuade the complainant from demolishing the house occupied by one of the accused persons. Consequently, an offence of rioting cannot be said to have been established. Resultantly, the learned trial Court came to a conclusion that the prosecution has failed to bring home any of the charges to the accused persons and acquitted them of the charges levelled against them.

( 6 ) NOW, this appeal has been filed at the instance of the State on several grounds. One of them is that the evidence of the Doctor has been erroneously accepted by the trial Court. According to the prosecution, the opinion of the doctor that the injuries could be caused with friendly hands has no basis. Apart from that, according to the State Counsel, the trial Court should not have disbelieved the evidence of the prosecution witnesses who had seen the occurrence from the house of P. W. 1. Witnesses such as P. Ws. 1 and 8 are stated to have seen the entire occurrence from the house of P. W. 4 which is only two houses apart from the house where theft was committed. As per the State Counsel, they are all truthful witnesses and their version should not have been discarded or disbelieved by the trial Court and concluded the trial in acquittal of the accused persons. In this regard, the learned counsel for the respondents Mr. Rath has drawn my attention to the statement of P. W. 8 who is stated to be one of the eye-witnesses. P. W. 8 namely Rabindra Roul has sta