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Jagabandhu Behera v. Kshetrabasi Samal And Others

Orissa High Court

May 12, 1967

Judgment

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Factual and Procedural Background

The case arises from an incident on 4 October 1962 (a Thursday) at about 11:00 a.m. in village Anantapur at Kujang Melan Padia near the Dak Bungalow. The complainant, Jagabandhu Behera, alleged that a group of persons (31 accused-respondents) assaulted him with lathis and sharp instruments. The motive alleged included enmity from a Grampanchayat election contest involving accused Kshetrabasi Samal and prior litigation-related enmity.

On the same day at 5:00 p.m. an F.I.R. was lodged by Maguni Charan Biswal (who was not examined at trial). That F.I.R. named accused nos. 1 to 7 (and two others); a G.R. case No. 1943/62 was instituted against 10 accused persons, including accused nos. 1 to 7. Subsequently, on 23 November 1962 the complainant filed a complaint petition before the Magistrate naming all accused nos. 1 to 31, explaining that he had been hospitalised until 18 November 1962 and that he believed the police had not proceeded against all persons responsible.

The case proceeded by clubbing: the G.R. case against accused nos. 1–10 and the complaint case against accused nos. 1–31 were combined for joint trial. After trial, the learned Magistrate acquitted all accused. The complainant appealed; the defence challenged the maintainability of the appeal (principally as regards accused nos. 1–10 who had originally been proceeded against on a police report).

Legal Issues Presented

Whether the complainant's appeal against acquittal is maintainable as regards accused nos. 1–10 who were initially the subject of a police report (Section 190(1)(b) CrPC) where the complaint case under Section 190(1)(a) CrPC was later clubbed for joint trial with the G.R. case.
Whether the Magistrate was entitled, under Section 239 of the CrPC, to club or amalgamate the G.R. case and the complaint case for a joint trial of the accused named in the police report and those named in the complaint.
On the merits, whether the learned Magistrate properly appreciated and accepted or rejected the prosecution eyewitness evidence and whether the acquittals of particular accused (notably Kshetrabasi Samal and six others named in the F.I.R.) should be set aside and convictions entered.

Arguments of the Parties

Defence's Arguments

The maintainability of the complainant's appeal had to be judged according to how the case was originally instituted: accused nos. 1–10 were instituted on a police report (Section 190(1)(b)), whereas accused nos. 11–31 were the subject of a complaint (Section 190(1)(a)).
Clubbing the two proceedings for joint trial does not convert the character of either case for purposes of appeal; consequently the complainant's appeal as to accused nos. 1–10 was not maintainable under Section 417(3) CrPC.
The defence relied on precedent authorities (including Jamuna Singh v. Bhadai Shah and a decision referred to as Bankebehari Modi v. Ramawatar Saha) to support the contention that there was a procedural defect affecting maintainability which could not be waived by consent.
On the merits, the defence pleaded a complete denial of the occurrence; Kshetrabasi Samal specifically pleaded an alibi (that he was at Bisuali attending a meeting), and D.Ws. 6 and 7 were tendered as alibi witnesses.

Complainant / Prosecution Contentions (as reflected in the record)

The complainant alleged serious injuries (including dislocation/breaking of a tooth by a knife-like object) and stated that he had been hospitalised until 18 November 1962, which explained the delay in filing the complaint petition.
The complainant contended that the police had, in the charge-sheet, proceeded against only 10 persons despite evidence against all 31, and thus filed a complaint petition to bring the remaining accused before the court.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Jamuna Singh v. Bhadai Shah, AIR 1964 SC 1541	Relied on by defence regarding procedural questions about initiation and maintainability.	The Court held this decision was not authority for the specific point of merger/clubbing of a police-report case and a complaint case for joint trial in the present facts.
Bankebehari Modi v. Ramawatar Saha (Cri. Revn. No. 486 of 1965, unreported; Dated 2-9-1966 (Ori))	Relied on by defence; discussed by a Single Judge of the High Court in relation to the Supreme Court decision above.	The Court observed that the decision, given its peculiar facts and being unreported, was not an authority on the question of merger of a complaint case into a police case or vice versa for joint trial.
Mukania v. Achalia, AIR 1952 Raj 160	Interprets the scope of Section 239 CrPC permitting joint trial where persons are accused in the course of the same transaction.	The Court relied on this authority to support the proposition that a Magistrate may amalgamate cases (police-report and complaint) and hold a joint trial under Section 239 when the accused are charged in respect of the same transaction.
Himiiika Lokanath v. State, ILR 1962 Cut 661	Authority on the weight to be given to 'chance witnesses' and that being a chance witness does not automatically discredit testimony.	The Court invoked this authority to criticize the learned Magistrate's dismissal of eyewitnesses merely because they were 'chance witnesses' and to emphasise that such a label alone is not a basis for discarding evidence.
Abdul Gani v. Bhimrao Kadu, AIR 1954 SC 31	Establishes the duty of a court to "sift the grain from the chaff" where riotous/collective violence is alleged, and not to reject an entire prosecution as fabrication simply because some details are inconsistent.	The Court applied this principle to hold that the Magistrate erred in taking the "easy course" of discarding the eyewitness evidence entirely instead of attempting to extract reliable parts of the testimony.

Court's Reasoning and Analysis

The Court's reasoning proceeded in two main stages: the procedural question of maintainability arising from the clubbing of two proceedings, and the merits of the prosecution's case as to participation by certain accused.

1. Maintainability and clubbing under Section 239 CrPC

The defence argued that because accused nos. 1–10 were initially proceeded against on a police report (Section 190(1)(b)) and others on a complaint (Section 190(1)(a)), the character of those proceedings for appeal purposes could not be altered merely by clubbing the two cases for joint trial.
The Court examined the Magistrate's orders and the record: cognizance had been taken first in the G.R. case for accused nos. 1–10 and later in the complaint case for accused nos. 11–31; petitions were filed in each court for hearing both cases together under Section 239(a) and (d) CrPC; both courts granted the prayer and a common trial followed.
The Court referred to Section 239 CrPC (persons accused of the same offence in the course of the same transaction and persons accused of different offences in the course of the same transaction may be charged and tried together) and authority (Mukania v. Achalia) to conclude that a Magistrate has jurisdiction to amalgamate a police-report case and a complaint case for joint trial where the accused are alleged to have participated in the same transaction, provided no circumstances make joint trial improper.
On the facts, the Court found no prejudice and no impropriety in the joint trial; thus the defence challenge to maintainability as to accused nos. 1–10 failed.

2. Merits: Appreciation of eyewitness evidence and verdict

The Court reviewed the learned Magistrate's reasons for rejecting the eyewitness testimony (P.W.s 1, 2 and 5), which included that P.W.1 was "somewhat related" to the complainant and that P.W.s 1 and 5 were "chance witnesses"; P.W.2 was treated as hostile.
The Court criticised the Magistrate for discarding the evidence on what it characterised as "flimsy extraneous considerations" and for taking the "easy course" of rejecting the eyewitnesses without sifting reliable parts of their testimony (invoking the principle from Abdul Gani v. Bhimrao Kadu).
The Court observed that in a daylight public assault, chance witnesses are likely and their evidence cannot be rejected solely because they were chance witnesses (relying on Himiiika Lokanath v. State).
Examining the eyewitness accounts (as summarised in the record), the Court found consistent and clinching testimony implicating Kshetrabasi Samal in using a knife-like black object that broke a tooth of the complainant, and implicating several other named accused (those in the F.I.R.) in lathi assaults.
The Court rejected the alibi evidence for Kshetrabasi (D.W.s 6 and 7) in view of the eyewitness testimony.

Holding and Implications

Core Ruling: The Court set aside the acquittal of seven accused named in the F.I.R. and convicted them; the acquittal of the remaining 24 accused-respondents was upheld.

The direct effects and orders given by the Court (as recorded) are:

Kshetrabasi Samal: Acquittal set aside; convicted under Section 325 IPC and sentenced to six months' rigorous imprisonment. He was also convicted under Sections 147 and 323 IPC but no separate sentence was imposed on those counts.
Chakradhar Samal, Pranakrushna (Panu) Majhi, Narayan Majhi, Narayan Panda, Dhadi Dalai, and Brundaban Rout: Acquittals set aside; each convicted under Section 323 IPC and sentenced to three months' rigorous imprisonment. They were also convicted under Section 147 IPC but no separate sentences were imposed on that count.
The criminal appeal against the acquittal of these seven accused-respondents was allowed in the terms stated above; the criminal appeal against the order of acquittal of the remaining 24 accused-respondents was dismissed.

The opinion does not purport to lay down a new legal precedent; it applies existing provisions of the CrPC (notably Section 239) and established case law to the facts before the Court. The decision's practical implication is the alteration of the trial court's verdicts for the seven named accused as specified above, while leaving the acquittals of the others intact.

D.R.R

Order accordingly.

Show all summary ...

1. This is an appeal from an order of acquittal of 31 accused-respondents on a charge against accused Kshetrabasi Samal under Sections 147, 323 and 325 Indian Penal Code for being a member of the unlawful assembly having voluntarily caused hurt to the complainant-appellant Jagabandhu Behera and grievous hurt to him by dislocating a tooth by means of a knife-like black thing; against the other 30 accused-respondents under Section 147/323 Indian Penal Code for voluntarily causing hurt to the complainant by forming an unlawful assembly with the common intention to assault the complainant as alleged. The case arose out of an incident on October 4, 1962 which was a Thursday at broad day light in the morning at about 11.00 a.m in village Anantapur at Kujang Melan Padia near the Dak Bunglow belonging to the former local zamindar, in course of which, the accused-respondents are stated to have assaulted the complainant Jagabandhu Behera (appellant herein) with lathis and sharp instruments — all in the manner as stated by the eye-witnesses hereinafter discussed. The motive is said to be some enmity due to Grampanchayat election contest against the accused Kshetrabasi Samal and also previous enmity with him in connection with some litigation. The same day at 5.00 p.m the first information report was lodged by Maguni Charan Biswal who, however, was not examined at the trial. In the said first information report, he named the accused-respondent nos. 1 to 7, namely, Kshetrabasi Samal, Chakradhar Samal, Pranakrishna alias Panu Majhi, Narayan Majhi, Narayan Panda, Dhadi Dalai, Brundaban Rout and two others. There is no mention of the other accused-respondents in the said first information to the police. On the said report to the police, a G.R Case No. 1943/62 was instituted against 10 accused persons (including accus-ed-appellants 1 to 7) in the court of Magistrate Shri S.N Murty.

2. It was not until November 23, 1962 that a complaint petition was filed by the complainant Jagabandhu Behera before the Magistrate in which he named all the accused nos. 1 to 31 including the accused nos. 1 to 7 against whom the F.I.R was already filed as aforesaid. The complaint petition was filed in these circumstances as stated in the complaint petition: The complainant was senseless due to the injuries on him; the doctor apprehending that he might the took from him a statement and sent him to the Cuttack hospital; he was under treatment in the hospital till November 18, 1962; it was after his discharge from the hospital he came to know that an F.I.R had been lodged at the police station, but the local police remained silent. The complainant stated in his petition that although the police got evidence against all the accused-respondents, they submitted charge-sheet against only accused nos. 1 to 10; it was also complained that the police had not taken step the complainant expressed doubt that the police had not given complete and accurate statement of facts in the case diary; that the police had submitted charge-sheet against only 10 persons and not against all the 31 accused-respondents. The complaint was numbered as in the court of S.D.M, Sadar, Cuttack.

3. The defence plea is a complete denial of the occurrence as alleged. The specific plea of all the accused persons, except Kshetrabasi, is that they have been falsely implicated in this case due to enmity. The plea of the accused Kshetrabasi is one of alibi in that, according to him, on the date of occurrence he was not present at Anantapur and was at Bisuali in the house of Lokanath Samal where he went for attending a meeting of the cultivators protesting against mass eviction, etc., D.Ws 6 and 7 are the alleged alibi witnesses.

4. The cases against accused nos. 1 to 10 on police report and the case against all the 31 accused persons on the complaint petition including the accused nos. 1 to 10 were clubbed together. In due course, after investigation, they were charged and tried by the learned Magistrate who acquitted them of all the charges against all the accused-respondents.

5. A point of law was raised on behalf of the defence challenging the maintainability of the appeal as against accused nos.

1 to 10 which initially was taken cognizance of on a police report being G.R Case No. 1943/62. The defence point in substance is this: The institution of the case against accused nos. 1 to 10 was initially upon a police report under Section 190(1)(b) of the Cr PC, whereas the case against the remaining accused nos. 11 to 31 — along with accused nos. 1 to 10, was upon a complaint petition under Section 190(1)(a) of the Cr PC. For the purpose of appeal against acquittal, the case instituted on police report under Section 190(1)(b) is provided for in section 417(1) of the Code; the case of acquittal of accused persons against whom the case instituted upon receiving a complaint under Section 190(1)(a) of the Cr PC is provided for in Sec. 417(3) of the Code. In such a case, according to the learned defence counsel clubbing together of the two cases — G.R case and complaint case — as done in this case by order of the Magistrate for joint trial of the two cases, will not amount to conversion of the two cases from one class to another. It was argued that the maintainability of the complainant's appeal is to be judged on the footing as to how the case was initially instituted against the accused-respondents; admittedly the case against accused nos. 1 to 10 in the G.R case was initially instituted on the footing of a police report; whereas the case against the remaining accused nos. 11 to 31 was initially instituted upon complaint which was subsequently received by the Magistrate. It was on this reasoning it was submitted on behalf of the defence that the complainant's appeal, so far as accused nos. 11 to 31 are concerned — against whom cognizance was taken on a complaint petition — is maintainable under Section 417(3) of the Cr PC; whereas the complainant's appeal as against accused nos. 1 to 10 — against whom cognizance was taken on police report as aforesaid — is not maintainable under Section 417(3). While challenging the maintainability of the complainant's appeal as against acquittal of accused Nos. 1-10, it was contended that it was a serious defect in the procedure which could not have been waived by consent.

6. In support of the defence contentions on the question of maintainability, the learned defence counsel relied on certain decisions which, in my opinion, do not cover the points on the facts of this case. The learned defence counsel relied on a decision of the Supreme Court in Jamuna Singh v. Bhadai Shah, AIR 1964 SC 1541. This case is not an authority on the point of merger, that is to say, clubbing or tagging together of two criminal cases for ioint trial of the accused persons, as in the present case. The Supreme Court decision was also considered by a learned single Judge of this Court in Bankebehari Modi v. Ramawatar Saha in Cri Revn. No. 486 of 1965 (unreported) D/- 2-9-1966 (Ori) — in which the peculiar facts of that case were noted; indeed, the decision is no authority on the question of merger of a complaint case into police case or vice versa.

7. In none of the decisions relied on behalf of the defence on the point of maintainability the provisions of section 239 of the Cr PC, as to what persons may be charged and tried jointly, do not appear to have been considered. Section 239 of the Cr PC, so far as relevant for the present case, is this:

“239. The following persons may be charged and tried together, namely:—

(a) persons accused of the same offence committed in the course of the same transaction;

(b) XXXXXX

(d) persons accused of different offence committed in the course of the same transaction;

(e) XXXXXX

(f) XXXXXX

(g) XXXXXX

and the provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges.”

8. On careful examination of the procedure adopted by the Magistrate in each of the two cases — the G.R case against accused nos. 1 to 10 and the complaint case against accused nos. 1 to 31 including accussed nos. 1 to 10 — were clubbed together for the purpose of joint trial because all the 31 accused-respondents were accused of offences committed in course of the same transaction. Considered from this aspect I do not find any merit in the defence contentions challenging the maintainability of the appeal against order of acquittal of accused nos. 1 to 10.

9. This view is confirmed by what appears from the order sheet of the Magistrate's record in the court of S.D.M, Sadar of Cuttack in the complaint case no. (Jagabandhu Behera v. Bhagi Samal) under Section 147/323 Indian Penal Code. By order dated January 23, 1963 quoted hereunder accused nos. 1 to 10 were excluded. For clear appreciation of the point, the relevant portions' of the said order sheet are set out below:

“23-1-63 — I have persued the statement of the witnesses and the enquiry report I agree with the finding of the Enquiring Magistrate. There is a prima facie case against the accused persons u/s. 147/323 I.P.C except the first ten accused persons as per the complaint petition since they have already been sent up for trial in G.R No. 1943/62. Cog taken, against accused persons for serial nos. 11 to 31 as per the complaint petition u/s. 147/323 I.P.C … Summon the accused persons for 5-3-63.

5-7-63. — XX XX XX. The complainant files a petition to club this case with the analogous G.R Case No. 1943/62 on the grounds stated in the petition. The pleader for the accused objects to it.

Put up on 12-7-63 for consideration of this petition. XX XX XX

12-7-63. XX XX. The petition of the complainant for clubbing this case with the analogous G.R case is put up today. Heard parties. They want to place specific rulings on the legality and procedure about this point. Put up on 15-7-63 for orders…

15-7-63. — Heard lawyers further on the point, as per order dated 15-7-63 in G.R case No. 1943/62, this case is clubbed with the aforesaid case when provisions under section 252 of the Cr PC will be followed. Summon witnesses to 8-8-63. Complainant to take steps…….”

10. It is clear from the records of the proceedings that cognizance was taken first in the G.R case against accused nos. 1 to 10 by one court; thereafter, cognizance was taken on complaint petition by another court against accused nos. 11 to 31. In course of the proceedings, petitions were moved in each court for the hearing of both the cases together under the provisions of Section 239(a) and (d) of the Cr PC for joint trial of the accused persons. Both the courts granted the prayer separately. Thereafter, there was a common trial of the cases as a complaint case. Thus, no party has been prejudiced by reasons of the court adopting this procedure.

11. This view is supported by the provisions of Section 239 of the Cr PC quoted above. Section 239 permits a Magistrate to hold a joint trial of various persons under the conditions mentioned therein. If, therefore, it is permissible under the section for the Magistrate to hold a joint trial of the accused named in the police report and the accused named in the complaint, there is nothing illegal in the Magistrate amalgamating the two cases and holding a joint trial even though the accused in the police report may not all be the same as those in the complaint. The Magistrate is of course not bound to hold a joint trial for there may be circumstances in a particular case where it may not be proper to hold a joint trial e.g though the offence may be one, the persons prosecuted by the police may be totally different from the persons named in the complaint; in such a case, it will obviously be improper to amalgamate the two cases and hold a joint trial. But if there are no circumstances which make a joint trial in particular cases improper, a Magistrate has the jurisdiction to amalgamate the two cases and hold a joint trial of the accused mentioned in the police report and in the complaint, provided he can do so under S. 239 (Mukania v. Achalia, AIR 1952 Raj 160).

12. This brings up to the merits of the prosecution case against the 31 accused-respondents.

13. [His Lordship then discussed the evidence and continued as under]:—

14. The broad reasoning on which the learned Magistrate did not accept the direct testimony of the eye-witnesses (P.Ws 1, 2 and 5) is — as stated in his judgment — This:

“The witnesses to the occurrence are P.Ws 1, 2 and 5. P.W 1 is a man of village Balarampur, which is also the village of complainant's father-in-law Jagu Behera. Krishna is the son of the Jagu Behera and he calls Krishna as his brother. Per chance this P.W 1 came to Anantapur bazar when he saw the occurrence. It is difficult to place any reliance on the evidence of this P.W, who is somewhat related to the complainant.

15. P.W 2 though not formally declared as hostile is a hostile witness and P.W 3 has also stated in his chief that this witness along with Maguni Biswal, the first informant of the G.R case and others were subsequently gained over by the accused persons. Though in the chief this P.W 2 gives a vivid description of different assault by different accused persons at different stages, in cross-examination he could not say who assaulted whom during the occurrence and he also did not see any injury on the person of Jagabandhu. He even went to the extent of saying that he did not see accused assaulting Jagabandhu on the date of occurrence. The hostility of this witness has been sufficiently brought out from his own evidence, and evidently he is suppressing the truth ….

16. The only witness who remains is P.W 5 Babaji Behera, the fisherman carrying on business at that place. This Babaji Behera is a fisherman of Cuttack and he used to go to Kujang for carrying fish business. He was remaining in the rented house of one Kula Patnaik. Curiously enough nobody sold any fish to him on the date of occurrence ……… it is difficult to believe that when 31 accused persons came in a body armed with lathis and assaulted the complainant mercilessly, none from those shops came there excepting a chance witness who was only occasionally going to the place for carrying fish business who came from his house for witnessing the occurrence.”

17. It is not understandable why the evidence of P.Ws 1 and 5 — so far as they said about the 7 accused persons having participated in the crime in the manner as mentioned in the F.I.R — should not be accepted. One of the grounds on which the learned Magistrate did not accept the evidence of P.W 1 is that he was “somewhat related” to the complainant; it is on such flimsy extraneous considerations that the learned Magistrate did not rely on the evidence of this witness. That apart, the evidence of both P.Ws 1 and 5 was discarded by the learned Magistrate on the ground that they were chance witnesses. There is no magic in the comment “chance witnesses”. Though this is the usual argument, its implication is hardly understood. In broad day light, as in the present case, different persons are bound to follow their own avocations of life and while doing so they are likely to come across incidents which in the ordinary course they never contemplated to see. Unless their evidence is otherwise assailable, it cannot be whittled down merely on the theory that they were chance witnesses: Himiiika Lokanath v. State, ILR 1962 Cut 661.

18. What P.W 1 stated in evidence implicating the said 7 accused persons — named in the F.I.R — taking part in the incident in the manner they did is, in substance, this; Upon hearing the shout of the crowd to assault the complainant Jagabandhu, he (Jagabandhu) came out to the Melan Padia towards the motor stand; then accused Brundaban and Narayan Majhi gave two lathi blows on the back of Jagabandhu; then Jagabandhu ran towards the P.W.D tent; at that time, among others, accused Kshetrabasi, Chakradhar, Pranakrushna Majhi, Dhadi Dalai and Narayan Panda assaulted the complainant by means of lathis; the complainant entered into the tent out of fear for life; accused Kshetrabasi, Chakradhar and Narayan pulled out the pegs of the tent and wanted to enter into it; while they entered into the tent, the complainant went running towards the banian tree. He also said that accused Kshetrabasi, Chakradhar, Pranakrushna Majhi alias Panu Majhi, Narayan Majhi and others assaulted the complainant with lathi blows while the complainant fell down as a result of the assault and was crying for help; while the complainant was crying for help, accused Kshetrabasi thrust a knife-like black thing into the mouth of the complainant, as a result of which, his tooth was broken; he saw his mouth bleeding while the complainant was crawling into the Debi Ghar, accused Brundaban gave a lathi blow on the right leg of the complainant; similarly, accused Dhadi Dalai raised a blow at the complainant: complainant fell down in the Debi Ghar and became unconseious.

19. Then as regards what the other witness (P.W 5) has said about those — out of the 31 accused persons — specifically mentioned in the F.I.R as having assaulted the complainant in the manner they did was, in substance this:

20. On the date of incident when he was at Anantapur bazar, accused persons raised hulla and hearing it he went to the spot: he found people including the said accused persons coming to the verandah of the Dak Bungalow where the complainant was sitting; the accused were shouting to assault Jagabandhu; then Narayan Majhi and Brundaban Rout with lathis assaulted Jagabandhu from behind on his head when he was trying to enter into the tent and his head was wounded; then accused Kshetrabasi, Chakradhar. Pranakrushna Majhi. Narayan Panda, Dhadi Dalai and others with lathi assaulted on the head, hand and waist of Jagabandhu when he entered inside the tent: the witness (P.W 5) tried to dissuade the accused persons, but accused Chakradhar, Kshetrabasi and Narayan Majhi uprooted the southern pegs of the tent and assaulted the complainant with lathi blows; when the complainant went to a tree, he was dealt lathi blows by some of the accused persons and his head was wounded; by then, accused Kshetrabasi gave a push to Jagabandhu with a black knife, and as a result of which, one tooth of Jagabandhu was broken and blood was coming out of his mouth; when Jagabandhu was going to the temple of Debi Ghar, accused Brundaban dealt a lathi blow on his right leg.

21. In such a case, the duty of the court in the matter of appreciation of evidence has been laid down by the Supreme Court thus: Though the prosecution witnesses have not told the whole truth and though it is not possible to get an absolutely true picture of the events from the evidence, still it is not possible to accept the contention that the prosecution case is a complete fabrication and where it appears that certain assaults — even murders — have resulted from rioting in which some at least of the accused persons participated, the Court must make an effort to disengage the grain from the chaff. It is an error to take an easy course of holding that the evidence is discrepant and that the whole case was untrue — (1. Abdul Gani v. 2. Bhimrao Kadu, AIR 1954 SC 31).

22. In the present case, the learned Magistrate has taken the easy course of discarding the evidence of the eye-witnesses altogether, without taking the trouble of sifting the grain from the chaff. It was a case of broad daylight assault on the complainant in a public thoroughfare, in the bazar area, in the vicinity of the Dak Bungalow. It was within a few hours of the incident that the F.I.R was lodged at the local Police Station the same day in the afternoon. It is understandable that the benefit of doubt can be given with regard to those other accused persons subsequently named as afterthought in the complaint petition filed more than 1.½ months after the incident, but no such ground can be given for disbelieving the evidence of P.Ws 1, 2 and 5, with regard to the accused named in the F.I.R The learned Magistrate discarded their evidence on extraneous considerations as discussed above.

23. As regards the alleged plea of alibi, in view of the consistent clinching evidence of the eye-witnesses that the accused Kshetrabasi Samal with a knife broke one tooth of Jagabandhu, the alibi evidence of the defence witnesses D.Ws 6 and 7 that the accused Kshetrabasi Samal was at Biswali in the house of Lokanath Samal cannot be accepted. In this view of the case, the order of acquittal of the accused-repondent Kshetrabasi Samal is set aside; he is convicted under section 325 Indian Penal Code and sentenced to six month's rigorous imprisonment; he is also convicted under Ss. 147 and 323 Indian Penal Code but no separate sentence on those counts. The order of acquittal of the accused Chakradhar Samal, Pranakrushna Majhi, Narayan Majhi, Narayan Panda, Dhadi Dalai and Brundaban Rout is also set aside; they are convicted under section 323 Indian Penal Code and are sentenced to three month's rigorous imprisonment each; they are also convicted under section 147 of the Indian Penal Code but no separate sentence on that count. The criminal appeal against the order of acquittal of the said 7 accused-respondents is allowed in terms aforesaid; and the criminal appeal against the order of acquittal of the remaining 24 accused-respondents is dismissed.