The need for caution in convicting accused based on the testimonies of injured eyewitnesses, especially in cases of free fights where injuries on the accused are not properly explained.

JUDGMENT

Dr. S. Muralidhar, CJ. - The present three sets of appeals (CRA Nos.227, 232 and 233 of 1996) are directed against a common judgment dated 13th August, 1996 passed by the learned Additional Sessions Judge, Khurda in S.T. No.22/111 of 1995 convicting the Appellants under Sections 148, 302, 307 read with Section 149 IPC and Sections 25 and 27 of the Arms Act.

2. It requires to be noticed at the outset that before the trial Court, there were 32 accused persons. One of the accused Kulamani Nayak, Accused No.26 (A26) was convicted under Section 302 IPC apart from the above offences. He had filed a separate Criminal Appeal No.268 of 1996. After he had served more than 10 years in custody, he was enlarged on bail by this Court by an order dated 1st February, 2007. However, during the pendency of the present appeal, he expired on 7th June, 2019. The appeal filed by Kulamani Nayak, (A26) i.e. Criminal Appeal No.268 of 1996 was disposed of by this Court as having abated by an order dated 30th August, 2022.

3. As far as the remaining accused are concerned, during the pendency of the Appeals, Udayanath Pradhan-A18 (who was also Appellant No.1 in Criminal Appeal No.227 of 1996) and Makadam Sahu-A25 (Appellant No.1 in Criminal Appeal No.233 of 1996) expired. Consequently, the appeals as far as the said two accused-Appellants were concerned, were disposed of as having abated by the order dated 30th August, 2022 of this Court.

4. It requires to be further noticed that by an order dated 23rd August 1996, the Appellants in Criminal Appeal No.227 of 1996 were enlarged on bail by this Court. By the identical orders dated 29th August 1996, the Appellants in the remaining two appeals i.e. Criminal Appeal Nos.232 and 233 of 1996 were enlarged on bail by this Court.

5. This Court has heard the submissions of Mr. Dharanidhar Nayak, learned Senior Counsel appearing for the Appellants and Mr. Janmejaya Katikia, learned Additional Government Advocate for the State.

Case of the prosecution

6. The case of the prosecution is that on account of alleged attempt at removal of earth from the gochar land in village Raghunathpur by the villagers of village Ghumusarpadar, there was a misgiving and misunderstanding between the two sets of villagers. It is the case of the prosecution that at around 9 am on 23rd June 1994, some of the villagers of Ghumusarpadar assembled in their Jubak Sangh Office with a view to evolve a compromise formula using the good offices of one Lingaraj Pradhan (P.W. 17), who was a Sarpanch of a different village i.e. Singheswar Grama Panchayat.

7. While the villagers of Ghumusarpadar were thus engrossed, the accused party i.e. the Appellants herein belonging to village Raghunathpur, armed with deadly weapons, such as country made guns, lathi, kanta, bhali, etc., formed an unlawful assembly and marched towards the village Ghumusarpadar. Some of them were wearing helmets. Seeing them, P.W.17 went forward to persuade them not to cause any breach of peace. However, in front of the house of Raja Kishore Tarai (P.W.7), P.W.17 was given a lathi blow on his head by Madhu Lenka-A5 (Appellant No.3 in Criminal Appeal No.232 of 1996).

8. Seeing P.W.17 fall on the ground, some of the villagers of Ghumusarpadar i.e. Shyama Sundar Raut (deceased), Madhusudan Tarai (P.W.8), Mahendra Tarai (P.W.10), Dasarathi Raut (P.W.16), Bhikari Raut (not examined) and certain others, who were sitting on the verandah of the Jubak Sangh Office, rushed to rescue P.W.17. The accused persons belonging to village Raghunathpur were stated to have abused them in filthy language and threatened them. Kulamani Nayak (A26) (the deceased Appellant in Criminal Appeal No.268 of 1996), Hazari Rout (A28) (Appellant No.9 in Criminal Appeal No.232 of 1996), Jitendra Nayak @ Tukuna (A29) (Appellant No.10 in Criminal Appeal No.232 of 1996) and Hazari Pradhan (A27) (Appellant No.11 in Criminal Appeal No.233 of 1996) being armed with country made guns opened fire. Further, the case of the p