The prosecution must prove charges beyond reasonable doubt; convictions based on insufficient evidence and incorrect sentencing cannot be sustained.

Judgment :

Biraja Prasanna Satapathy, J.

1. This matter is taken up through hybrid mode.

2. Heard learned counsel for the parties.

3. The present appeal has been filed challenging the judgment passed by the learned Sessions Judge, Bolangir on 04.07.1992 in Sessions Case No.67 of 1989. Vide the said judgment, Appellant No.4 has been convicted for the offence under Sections 304 (Part-I) and 324 of the I.P.C. and sentenced to undergo R.I. for five years and fine of Rs.3000/-, in default R.I. For six months for the offence under Section 304 (Part-I) and R.I. for one year for the offence under Section 324 I.P.C. Similarly, Appellant Nos.1 to 3 were convicted for the offence under Section 323 I.P.C. and convicted to undergo R.I. for six months.

4. It is however contended that since during pendency of the appeal, Appellant No.2 died, the order of conviction and sentence passed against him stands abated.

5. Learned counsel appearing for the appellants contended that pursuant to the F.I.R. lodged by the informant on 01.06.1989, Balangir Sadar P.S. Case No.69 of 1989 was registered for the offences under Sections 147 , 148, 302, 325,323, 324/149 of the Indian Penal Code against 18 nos. of accused. After completion of the investigation, charge-sheet also was filed against 18 nos. of accused persons and after commitment all the 18 accused persons were charged under Section 147 /148 and 302 and 149 of the I.P.C. for having committed rioting and for causing the death of one Dau Sandh. In addition to that, appellant No.4 was charged for the offences under Section 324 of the I.P.C. Appellant No.1- Upendra Sahoo in addition was charged under Section 323 of the I.P.C. and Appellant No.2 was also in addition charged for the offences under of the I.P.C.

5.1. It is contended that the prosecution in order to prove its case examined as many as 17 nos. of witnesses and exhibited various documents vide Ext.1 to Ext.29. Similarly, the defence examined 1 no. of witness and exhibited various documents vide Ext.A to Ext.D/1.

5.2. It is contended that learned trial Court after conclusion of the trial held Appellant No.4 guilty under Section 304 (Part-I) I.P.C. and under Section 324 of the I.P.C. Similarly, Appellant Nos.1 to 3 were found guilty for the offence under Section 323 of the I.P.C. Charges against the other accused persons were not proved and they were acquitted of the charges.

5.3. In support of the order of conviction and sentence passed against Appellant No.4 for the offences under Section 304 (Part-I) and 324 of the I.P.C., learned counsel appearing for the Appellant inter alia raised a preliminary objection to the effect that even though Appellant No.4 was held guilty for the offence under (Part-I), but he was sentenced for the offence under I.P.C.

5.4. It is contended that since Appellant No.4 was found guilty for the offence under Section 304 (Part-I), he could not have been sentenced for the offence under I.P.C. It is accordingly contended that the very order of sentence passed against Appellant No.4 is not sustainable in the eye of law.

5.5. It is also contended that even though Appellant No.4 was found guilty of the offence under Section 304 (Part-I )and under Section 324 of the I.P.C. with the prosecution allegation that he caused the death of the deceased because of one stab wound, but P.W.12 who happens to be the Medical Officer and examined the deceased, in his cross- examination clearly stated that Injury No.1 on the deceased is not a stab wound

5.6. Relevant extract of the evidence of P.W.12 in his cross-examination reads as follows:

The injuries Nos.3 and 4 on Durlava is not possible by lathi because the lathi sent to me had smooth surface. Simple pressing of iron rod or lathi o the parts of th