JUDGMENT

ARIJIT PASAYAT, J. — This is second journey of the accused-appellants to this Court questioning their conviction on being found guilty of offences punishable under Section 302 read with Section 149 and Section 148 of the Indian Penal Code, 1860 (in short “IPC”).

2. On the first occasion apart from the conviction for the aforesaid offences, the appellants were also convicted under Section 307 read with Section 149, IPC. However, in the second instance, the said conviction has been altered to one under Section 324 read with Section 149, IPC.

3. Filtering out unnecessary details, the prosecution version as unfolded during trial is as follows :

On 31.12.1988, there was an altercation between Jairam Das and Sadananda (hereinafter referred to as the deceased) on one hand and Jagabandhu Samal (DW 1) on the other near Motto Hat in connection with occupation/construction of a shed in a market area. When Jagabandhu suddenly got up, his head struck against a bamoo protruding into the thatch and he sustained some injury. Subsequently, when Jairam Das (PW 1), Gagan Das (PW 5) and the deceased proceeded towards their village near Balabhadrapur Sasan, they found that the accused persons armed with lathi, tentas etc. were coming. Being afraid, the deceased and his companions ran towards the village. Gagan Das (PW 5) went inside the house of Sikhar Bal whereas the other three concealed themselves inside the house of Nilakantha Rath (PW 8). The house was surrounded by the accused persons who dealt blows on the door and wall of the house and some of them entered inside the house. Accused Panchanan (appellant I 0 in the present appeal) and Subash Samal (appellant 7 in the present appeal) dragged the three persons and assaulted them. At that time, one of the accused persons shouted that police personnel were coming and subsequently all the accused persons fled away. PW 5 who saw the incident through an opening in the door leaf of the house of Sikhar Bal lodged the report before the police which was treated as the first information report. Apart from PW I who was injured in the incident and PW 5, the informant, the occurrence was seen by some other persons including PWs 2, 3, 4, 7 and 8. The last two witnesses are the owners of the house wherein the deceased and his companions had taken refuge and also spoke about the occurrence but except a few they were not able to name the other accused persons. Investigation was undertaken and on completion thereof, charge-sheet was placed.

4. The accused persons gave a different vesion of the incident. According to them, the allegation that the accused persons being armed followed the deceased and his companions to Balabhadrapur Sasan is incorrect. In fact, some incident took place in Motto Hat itself where DW I was assaulted and in order to save himself, he had brandished a “Bahunga”. As a result, the deceased, PW I and Sanatan were injured. To substantiate their plea, they examined DW 1 and nine others. It was indicated that the appellant Subash Samal is the son of DW 1. It was claimed by them that since they belonged to Communist Party and the deceased belonged to Congress Party, they were falsely implicated.

5. Originally, there were 21 accused persons. The Additional Sessions Judge, Bhadrak acquitted six of them and convicted the other 15 under Section 302 read with Section 149, IPC and Section 148, IPC as well as under Section 307 read with Section 149, IPC and sentenced them to suffer imprisonment for life for the conviction and sentence under Section 302 read with Section 149, IPC, and three years’ rigorous imprisonment on each count i.e. for offences punishable under Section 148 and under Section 307 read with Section 149, IPC. The sentences were directed to run concurrently.

6. The 15 accused persons who had been convicted preferred an appeal before the Orissa High Court. A Division Bench by its judgment dated 18-4-1995 dismissed the appeal i.e. Criminal Appeal No. 133 of 1990. The s