JUDGMENT :

K.R. Mohapatra, J.

This is an Appeal under Section 378 (1) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) assailing the order of acquittal dated 10.09.1986 passed by the learned Sessions Judge, Mayurbhanj at Baripada in Sessions Trial No.62 of 1985 acquitting the appellants from the charges under Sections 302/201/34 of Indian Penal Code, 1860 (for short, ‘IPC’).

2. Case of the prosecution in brief is that on 19.02.1985, the informant, namely, Digal Patra @ Rath Patra (PW-1) along with his son and the deceased, namely, Chhota Mundari had been to Rajabasa weekly market on the occasion of Sivaratri, where he had opened a shop. The deceased was assisting him in selling ‘Bidi’ in the shop. On 20.02.1985 at about 5.30 PM, respondents (accused persons) came to the shop of the informant and asked for ‘bidi’ on credit to which the deceased refused. At this, respondent No.1-Jadua Samad being enraged, assaulted the deceased with his waist belt. After the incident, the informant closed his shop and he along with his son and deceased started return journey to their village with their articles. On the way, they found the respondents taking Handia by the side of the road. Having found Jadua at that place, the deceased pulled out an empty red bottle from the articles they were carrying and assaulted Jadua, as a result of which the bottle broke. Apprehending danger, the deceased left his Cycle there and left for his village. The informant collected the Cycle of the deceased from the spot and left it at Rajabasa. Thereafter, both the informant and his son proceeded to their village. On their way back, Jadua came from behind and asked whereabouts of the deceased brandishing knife. The informant told him that the deceased had left for village. Jadua then proceeded towards the village of the deceased. After proceeding a little, the informant and his son found respondent No.2–Gardi Mudya, respondent No.3-Atal Samad, and respondent No.5-Mutua Budhali discussing something iin a very low pitch. After proceeding a little, at about 7.30 PM, they found Jadua Samad (respondent No.1) and Jatua Naik (respondent No.4) had caught hold of the deceased. Jadua, thereafter gave signal and called other respondents who rushed to the spot on getting signal, surrounded and started giving fist blows to the deceased. The deceased was desperately trying to save himself with the broken piece of bottle in his hand. When the informant asked the respondents not to assault the deceased, Jadua rushed to him with the knife in his hand. The informant apprehending danger left the place. However, the informant and his son could hear the cry of the deceased to save him. In the same night, the informant narrated the incident before Samu Samad (PW-5), the Ward Member of the village. Being afraid of the respondents, the informant did not inform the incident to the Police till 25.02.1985. However, on 23.02.1985 at about 5.30 PM, the Officer in-Charge of Tiring Police Station received a missing report of the deceased from his wife, namely, Sumi Dei through the Ward Member (PW-5). She reported that the deceased had gone to Rajabasa Mela on 20.02.1985 and since then he was missing. The OIC, Tiring Police Station receiving such report, made a Station Diary Entry bearing No.405 dated 23.02.1985 and sent information to different Police Stations. On 24.02.1985, OIC, Tiring PS enquired about the matter and searched for Rath Patra-the informant, but could not find him in village Jata. On 25.02.1985 at about 8.00 AM, when Police was camping at village Jata to enquire whereabouts of the deceased, the informant appeared before him and orally reported the incident of 20.02.1985. On the basis of such information, a formal FIR was drawn up and Police registered Tiring PS Case No.10 of 1985 dated 25.02.1985. During investigation, the Police arrested the respondents on 26.02.1985 from the embankment of Kachuagobra M.I.P. and seized blood stained earth and sample earth from the