IN THE HIGH COURT OF ORISSA, CUTTACK Criminal Appeal No.321 of 1996 An appeal under section 374(2) of Cr.P.C. from the judgment and order dated 22.11.1996 passed by the 1^st Additional Sessions Judge, Berhampur in S.C. No.44 of 1993/S.C.

No.273/93 G.D.C.

-------------------------

1. Bhagya @ Bhagirathi Bisoi

2. Babu @ Babula Naik

3. Basant Naik @ Bapana

4. Aruna Naik

5. Bidu @ Bidyadhar Naik

6. Dillip Naik

7. Lambodar Naik

8. Anjan @ Ranjan Naik

9. Promod Naik 10. Pruthibi Naik

11. Bijuli Naik

12. Bishnu Bisoi @ Naik

13. Bira Naik ....... Appellants -Versus-

State of Odisha ....... Respondent Signature Not Verified For Appellant: - Mr. Saroj Kumar Routray Digitally Signed Signed by: SIPUN BEHERA Amicus Curiae Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 09-Jul-2025 10:28:34 For Respondent: - Mr. Sarat Chandra Pradhan Addl. Standing Counsel -------------------------

P R E S E N T:

THE HONOURABLE MR. JUSTICE S.K. SAHOO AND THE HONOURABLE MR. JUSTICE CHITTARANJAN DASH -----------------------------------------------------------------------------------------------------------------------

Date of Hearing and Judgment: 01.07.2025 -----------------------------------------------------------------------------------------------------------------------

By the Bench: This Criminal Appeal was filed by thirteen appellants i.e. Bhagya @ Bhagirathi Bisoi (A-1), Babu @ Babula Naik (A-2), Basant Naik @ Bapana (A-3), Aruna Naik (A-4), Bidu @ Bidyadhar Naik (A-5), Dillip Naik (A-6), Lambodar Naik (A-7), Anjan @ Ranjan Naik (A-8), Promod Naik (A-9), Pruthibi Naik (A- 10), Bijuli Naik (A-11), Bishnu Bisoi @ Naik (A-12) and Bira Naik (A-13), out of which A-4 Aruna Naik, A-5 Bidu @ Bidyadhar Naik, A-8 Anjan @ Ranjan Naik, A-11 Bijuli Naik and A-13 Bira Naik are dead and vide order dated 27.08.2024, this appeal has been directed to be abated in respect of those appellants.

The thirteen appellants who have preferred this appeal along with six other accused persons faced trial in the Court of learned 1^st Additional Sessions Judge, Berhampur in S.C. No.44 of 1993/ S.C. No.273/93 G.D.C. for commission of offences punishable under sections 148/302/149 of the Indian Penal Code (hereinafter „I.P.C.‟) on the accusation that on

05.03.1993 at about 10.00 a.m. at the embankment of Kansari Sahi Tank of Jagmohan Gram Panchayat, they formed an unlawful assembly and in prosecution of common object of such assembly, they committed the offence of rioting being armed with deadly weapons kati, sword, iron rod, pharsa etc. and thereby committed murder of Panchu Naik and Igni Naik (hereinafter „the deceased persons‟).

The learned trial Court vide impugned judgment and order dated 22.11.1996 acquitted six accused persons. However, A-1 Bhagya @ Bhagirathi Bisoi, A-2 Babu @ Babula Naik, A-3 Basant Naik @ Bapana, A-4 Aruna Naik and A-5 Bidu @ Bidyadhar Naik were found guilty under sections 148/302/149 of the I.P.C. and they were sentenced to undergo R.I. for life for the offence under section 302/149 of the I.P.C., however, no separate sentence has been awarded for their conviction under section 148 of the I.P.C. So far as appellant nos.6 to 13 are concerned, it was held that that they had the knowledge being members of unlawful assembly that an offence of culpable homicide was likely to be committed and accordingly, they were found guilty under sections 304 Part-II/149 of the I.P.C. and sentenced to undergo R.I. for five years each and to undergo R.I. for one year each for the offence under section 148 of the I.P.C. and both the sentences were directed to run concurrently.

Prosecution Case

2. The prosecution case, as per the first information report (hereinafter „F.I.R.‟)(Ext.11) lodged by Habuli Naik (P.W.14) on 05.03.1993 before the Inspector in-charge of Aska police station, in short, is that there was a civil dispute between the parties for which cases were instituted including a proceeding under section 107 of Cr.P.C. and on the date of