K.B.Panda, J. - (1.)CRIMINAL Appeal No. 182 of 1974 and Criminal Appeal No. 186 of 1974 arise out of the judgment in Session Trial No. 72 (S -B) of 1973 passed by the Sessions Judge, Sambalpur -Sundargarh on 28 -8 -1974 wherein 19 accused persons (the same order is followed in these appeals) were facing trial under various sections of the Indian Penal Code such as 384. 302/332/225, 114, 148, 147 and 149. In Criminal Appeal No. 182 of 1974 here are three Appellants, namely Akshya, Dasarathi and Sudhir are respectively accused Nos. 1, 4 and 8 in the lower Court. The rest 16 are the Appellants in Criminal Appeal No. 186 of 1974. All the accused Appellants excepting Balaram (A. 2) have been convicted under Section 332/149 and sentenced to undergo R.I. for one year on that Court. Besides, all the Appellants Nos. 1, 2, 5, 6, 7, 8 and 18 have been convicted under Section 304/149 and sentenced to undergo R.I. for 5 years. Appellant No. 2 has been convicted under Section 304/114 and sentenced to undergo R.I. for 3 years while he has also been convicted under Section 332/114 and sentenced to undergo R.I. for six months. The two sentences have been directed to run concurrently. Some of the Appellants are convicted under Section 332/149 have undergone their full terms of imprisonment. Both the appeals were heard analogously and this common judgment will dispose of both the appeals.
(2.)BRIEFLY the prosecution case is thus: On 10 -7 -1972 p.w. 8, the A.S.I of Police attached to Naikula P.S., got information from p. ws. 9 and 13, the two Forest Guards, that three stolen logs bad been kept concealed in the threshing floor of accused Balaram (A. 2) at his village Gogua. At that time the officer -in -charge of the Naikula P.S. (p.w.1) was absent. Consequently p.w. 8 registered a case (P.S. Case No. 26/72) and took up preliminary investigation. He proceeded to the threshing floor of accused Balaram and in fact found three logs lying there. Thereafter he went to Dahikhia which is a hamlet of village Gogua. There he found Balaram and so he arrested him, put handcuffs, put a rope round his waist and brought him to his threshing floor. P.w. 1 the officer -in -charge of Naikula P.S. arrived there at about 10 -30 A.M. and took over investigation of the case from p.w. 8.
It is alleged by the prosecution that this action of p.w. 9 created a sensation in the village which attracted about 200 to 300 people. It is also alleged that some of them had deadly weapons like axe and lathi. They surrounded the police party and the forest staff. It is further alleged that at the instigation of the arrested accused Balaram the mob attacked the police party and the forest staff as a result of which Dambarudhar Padhan, the Forester, was severely injured and p. ws. 1, 8, 10, 11, and 12 who are police people and p. ws. 9 and 13 who are forest people received injuries. Initially there were other allegations against the accused persons such as attempt of unlawful rescue of Balaram from police custody, excreting documents from p. ws. 9 and 13 that they had smuggled the legs in to the threshing floor of Balaram and some attempt to snatch away the official documents and cash from p. ws. 9 and 13. But the learned Court below did not believe that aspect of the prosecution case and so need not be given in detail. Some -how p. ws. 1 and 8 managed to escape from the place and on the same day at 3 P.M.. p.w. 1 himself draw up a plain paper F.I.R. (Ext. 1) at Gogua. The next day on 11 -7 -1972 p.w. 8 drew up the formal F.I.R. (Ext. 1/1). Be it stated here that Dambarudhar Padhan, Forester, who had been severely injured by certain members of the unlawful assembly, succumbed to his injuries at Deogarh hospital the next day at 5.15 A.M. on 11 -7 -1972. The Circle Inspector, p.w. 14 got information of this incident at Deogarh on 10 -7 -1972 and reached the place at 7 -30 P.M. on 10 -7 -1972. He took up the charge of investigation of the case from p.w. 1 and on close of the investigation submitted charge -sheet as against 26 accused persons on 21 -8 -1972. The committing Magistrate discharged 4 and the learned Sessions Judge at the time of framing of the charge discharged 3 more. Thus 19 faced trial with the result is already indicated.

Generally the plea is one of denial. Yet there are certain special pleas taken by some individual Appellants. Particularly Narottam Biswal (A. 16), Lakshmidhar Seth (A. 5). Kartik Sahu (A. 6). Jogi Behera (A. 14), Gobardhan Sahu (A.13), Parfulla Sahu (A. 19). Kunjabehari Naik (A. 10) and Sudhir Sahu (A. 8) have taken the plea of alibi. Nirmal Sahu (A.18) claimed the stolen three logs lying in the threshing floor of Balaram (A 2) to be belonging to him. Balaram himself took the plea that he had not instigated the crowd but had appealed to them to remain calm and peaceful. His further case is that he was arrested by p. ws. 8 on 10.7.1972, made to march with handcuffs on his hands to his threshing floor on the village road; p.w. 1 who met him on the way taunted him saying to realise the power of the police; at his threshing floor he was all along under the custody of the police constables; even though accused Nirmal Sahu claimed the three logs lying in the threshing floor to be his, yet he was not released; later the constables brought him to Bemur and from that place again took to Gogua at the instance of p.w. 1 and that finally being sent for by p.w. 14 he was taken to him in the same condition under police custody.

Appellant Nirmal Sahu (A. 18) stated that the logs were his which had been stolen from his area about a fortnight before the occurrence by p. ws. 9 and 13 and put in the threshing floor of Balaram to foist a false case against him. He was asked to become a prosecution witness and as he did not agree to do so he was assaulted and falsely implicated in this case. Some of the Appellants took the plea that although they were at the scene of occurrence yet they had not taken any part in any overt act.

(3.)THE prosecution examined 14 witnesses and the defence 12. Out of the witnesses p.w. 1 is the officer -in -charge of Naikula P.S., p.w. 2 is sale independent eye witness to the occurrence. p.w. 3 is the lady doctor who examined the injured p. ws. 1, 8, 9, and 13 and held the post mortem over the dead body of Damburdhar. P. ws. 4, 5,6 and 7 are formal seizure witnesses. P.w. 8 is the A.S.I. attached to Naikula P.S.. P. ws. 9 and 13 are the two Forest Guards. P. ws 10, 11 and 12 are the three constables present at the time of occurrence. P.w. 14, as already said, is the Circle Inspector and the investigating officer of the case. So far the d. ws. are concerned d. ws. 1 and 2 are accused 2 and 18 respectively. Some of the d. ws. have deposed to the alibi taken by some of the Appellants. D.w.11 is material in the sense that he is the sarpanch of the village and jimador of the logs and an eye witness to the occurrence.
Out of the several allegations of the prosecution the learned lower Court, on the basis of the evidence, held that many villagers gathered as Appellant No. 2 was handcuffed and brought to his threshing floor and kept in that condition for a sufficiently long time. On Appellant Balaram appealing to the villagers to take revenge for the illegal action as to how he was being maltreated, the mode became unlawful developing the common object of rescuing him from police custody and to deter the public servants from the lawful discharge of their duties. In the process the mob inflicted injuries on Dambarudhar resulting in his death the next day. Be it stated here that the learned lower Court dis -believed the story of extorting documents and money from the two forest guards, namely; p. ws. 9 and 13 demanding key of the handcuff from p.w. 1 and the theft of the three logs found in the threshing floor of Balaram.