JUDGMENT

A. S. NAIDU, J. — Initially ten accused persons were convicted under Sections 307/34 IPC by the learned Assistant Sessions Judge, Banki in S.T. No.3 of 1994 and were sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.2,000.00, in default to undergo rigorous imprisonment for a further period of one year for the offence under Section 307/34 IPC and rigorous imprisonment for three months for the offence under Section 323/34 IPC and it was directed that the sentences of imprisonment would run concurrently. The aforesaid order of conviction and sentence was impugned by the convicts before the Sessions Judge, Cuttack in Criminal Appeal No. 166 of 1995. The learned Sessions Judge by his order dated 6.9.1996 set aside the conviction and sentence of accused Nos. 3 to 10 and acquitted them of all the charges. He, however, set aside the conviction and sentence of present petitioner No.1 Joginath Sahoo under Section 307/34 IPC and convicted him under Section 323/34 IPC sentencing him to undergo rigorous imprisonment for three months. The Sessions Judge while acquitting present petitioner No.2 Bidyadhar Sahoo of the offence under Section 323/34 IPC, main¬tained his conviction under Section 307/34 IPC and modified his sentence thereunder from rigorous imprisonment for three years to rigorous imprisonment for one year besides a fine of Rs.1,000.00, in default to undergo rigorous imprisonment for a further period of three months. The present Criminal Revision challenges the said order of conviction and sentence of the petitioners.

2. The criminal proceeding was set in motion on the filing of a complaint case by one Abhiram Sahoo on the allegation that though an FIR was filed by him before the local police station against the accused persons, for reasons best known to police, the FIR was substituted by police and lesser offences were men¬tioned in the substituted FIR for which the complainant was constrained to approach the S.D.J.M., Banki. The said complaint petition was registered as ICC No. 58 of 1992 which was subse¬quently converted into Sessions Trial No.3 of 1994 and was tried by the Assistant Sessions Judge, Banki.

3. Bereft of all unnecessary details, the short facts alleged in the complaint of Abhiram Sahoo P.W.4 were that there existed previous disputes between the accused persons and the injured persons, namely, Joginath Sahoo P.W.7 and Krushna Chandra Sahoo P.W.8 regarding modulating drainage of water to their respective lands. On 6th of August, 1992 at about 4 p.m., the accused per¬sons being armed with Lathis, Farsas and other weapons had waited in ambush near the western side intersection of village Panikora¬da for assaulting and killing Joginath Sahoo and Krushna Chandra Sahoo as also other members of their family. It was alleged that both the injured persons were intercepted when they were return¬ing from their paddy field and were attacked by the accused per¬sons. Hearing the commotion, the complainant who happens to be the son of one of the injured arrived at the spot along with others and saw accused Bidyadhar Sahoo dealing a blow with a Farsa on the head of Krushna Chandra Sahoo as a result of which the latter fell down on the ground and became unconscious. At the same time, accused Joginath Sahoo was alleged to have dealt a Lathi blow on the right hand of the complainant’s father causing a fracture injury. Thereafter all the accused persons jointly dealt kicks and fist blow on Krushna Chandra Sahoo and Joginath Sahoo. On the day following the occurrence, the complainant lodged a written report at the Baidyeswar Police Station, but the police being gained over by the accused persons suppressed the said FIR and replaced the same by a fabricated one. The learned S.D.J.M. after holding an inquiry under Section 202 CrPC commit¬ted the accused persons to the Court of session.

4. During trial, to substantiate its case, prosecution examined as many as ten witnesses, of whom P.Ws 1 to 5 we