JUDGMENT

These two appeals under S. 379 of the Criminal P.C. are against the judgment and order of the Orissa High Court Whereby the judgment and order of the Additional Sessions Judge, Puri were upset and in place of acquittal convictions were recorded of seven accused including the five appellants.

2. To begin with, thirty three persons were arraigned before the Court of Session as accused for being members of an unlawful assembly, the common object of which was to cause rioting, simple hurts to Bachha Naik P.W. 3 and his wife Sushila Devl P.W. 8 and also causing the death of Smt. Nihali Bewa, the maternal grand-mother of P.W. 3. The incident is of a brief description. The accused persons suspected Bachha Nalk P.W. 3. for having committed theft of paddy sheaves belonging to one Matia Patra. They went to the house of P.W. 3, dragged him out and took him to the house of P.W. 2. There they gave him some beating. When his wife Sushila Devi P.W. 8 intervened, they pushed her and some of them assaulted her and she got a blow. In the meantime, Nihali Bewa, the grand-mother of P.W. 3 arrived at the scene and protested. At that juncture Kirtan Bhuyan, one of the accused and the principal appellant herein gave a katri blow on her neck as a result of which she died. This happened in the morning of 22-1-1976. The matter was reported on that very day within a few hours at the Police Station. This led to the trial of the accused persons and the ultimate conviction of the appellants before us.

3. The accused persons entered defence to suggest that Nahali Bewa had perhaps been killed by her own grand-son i.e., Bachha Naik P.W. 3 in order to grab her property and that the accused persons had been named on account of party faction. Otherwise the case of the prosecution at the trial was supported not only by the two injured witnesses but others as well inclusive of P.W. 2 Uchhab Naik in whose house the occurrence took place. Evidently it was a story against a story before the trial Judge. The prosecution gave its version and supported it by evidence. The defence on the other hand put forth a suspicion but did not pointedly accused Bachha Naik P.W. 3 for having killed his grandmother in the presence of any one. Neither any other substantial material to that effect was introduced. It was rather maintained that there was a suspicion against P.W. 3 for committing the murder of his grand-mother as it had commonly been said in the village to that effect. The trial Court was led to acquit the accused on the basis of the said suspicion extending to them the benefit of doubt. The High Court interfered in the appeal preferred by the State confirmed as it was to seven persons (sic). The High Court considered each and every statement of the prosecution witnesses and dispelled the doubt raised by the defence. Resultantly, the orders of the Sessions Court were upset against those seven including the five appellants herein. To get maintained the order of their acquittal on the grounds furnished by the learned trial Judge, the appellants are before us.

4. We have had a fresh look of the record and in particular to the course adopted by the trial Judge. It appears that the suspicion was entertained on a mere suggestion made by the defence to the Invetigating Officer who admitted that after the F.I.R. was recorded, Kirtan Bhuyan appellant along with two others appeared before him and told him that it was being said in the village that Bachha Naik P.W. 3 had killed his grand-mother. The trial Judge went on to assume that thereafter a duty was cast on the prosecution to disprove or demolish such suggestive defence and that neither during the investigation nor at the trial stage did the prosecution venture to do so. To this approach, the High Court did not agree and we tend to agree with the High Court. Each and every suggestion of the defence at the investigation need not lead the investigator to follow it. Had there been a counter version and the suggestion was that