JUDGMENT : Narasimham, C.J. - This is an appeal from the judgment of the Sessions Judge of Berhampur convicting Appellants Bhagaban Padhan, Nityananda Padhan and Jagannath Padhan under Sections 302/34 of the Indian Penal Code and sentencing them to transportation for life and convicting Appellants Kasinath Patra and Puroshottam Padhan under Sections 117 and 323 of the Indian Penal Code and sentencing them to one year rigorous imprisonment each. 2. In village Thulunda, P.S. Buguda in the district of Ganjam there are two parties hostile to each other. Appellant Bhagaban Padhan is the leader of one of the factions and his agnatic cousin Durjodhan Padhan (P.W. 14) is the leader of the rival faction. It is unnecessary for the purpose of this appeal to describe in detail the origin of the dispute between the two factions and the various cases that were fought out between them. At about sun-set on the 1st of February, 1955 several persons of both factions came to blows in the village street in consequence of which five persons on the side of the prosecution and five persons on the side of the accused persons were injured. The prosecution witnesses who were injured are P.W. 1 Khadala Patra, P.W. 3 Pandab Padhan P.W. 4, Uday Patra, P.W. 8, Antarjami Padhan and P.W. 11, Bhagirathi Naiko. The injured persons on the side of the Appellants are Appellants, Bhagaban Padhan, Nityananda Padhan Kasinath Patra, Purushottam Padhan and one Brundaban Padhan who was not made an accused In this case. In addition to the aforesaid injured persons one Choudhuri Rout was killed during the fight. Though some attempt was mane by the prosecution to show that this Choudhuri Rout was; not a member of, either of the two factions, it Is clear from the admission of P.W. 1 that In the year 1954 the said Choudhuri Rout had deposed In favour of the prosecution-party against the accused persons in a proceeding u/s 145 Code of Criminal Procedure. 3. The prosecution-party were the first to run to the police station at Buguda, ten miles away, and to lodge F.I.R. at 2 A.M. on 2-2-1955. The informant Khadala Patra (P.W. 1) named only four of the accused persons, namely, Bhagaban Padhan, Nityananda Padhan, Jagannath Padhan and Pandab patra and Stated that they attacked the deceased Choudhuri Rout with blunt weapons and killed him outright. The informant Khadala Patra (P.W. 1) named only four of the accused persons, namely, Bhagaban Padhan, Nityananda Padhan, Jagannath Padhan and Pandab patra and Stated that they attacked the deceased Choudhuri Rout with blunt weapons and killed him outright. In the F.I.R. he gave no reason as to how the attack on Choudhuri Rout started and merely stated that for some reason or other (Kounasi Karanaru) the attack began and that he and his companions Pandab Padhan, Uday Patra, Nabin Padhan and Nakul Patra witnessed the assault after it had begun. Hence, he could not say as to how the fight started. He further stated that when the attack on Choudhuri Rout was going on, he, Pandab and Uday Patra remonstrated; where-upon he and Pandab were assaulted by some of the accused persons. The counter F.I.R. (Ext. 13) was lodged by Appellant Porushottam Padhan before the S.I. of police (P. W. 16) on 3-2-1955 though he had been examined by the S.I. during the investigation of the case under appeal on 2-2-1955. In the counter F.I.R. some of the prosecution witnesses were named as the assailants of Purushottam and his companions. The origin of the fight was completely omitted in it; nor was there any mention about the death of Choudhuri Rout. On the other hand, It was stated that he was also one of the assistants of the accused persons along with the other members of the prosecution-party. 4. It is obvious that both parties have carefully suppressed a material portion of the occurrence and tried to show that they were Innocent victims of a murderous attack from the opposite side. Both the F.I.Rs. are discretely silent as to who started the fight. The injuries sustained by the rival faction are also completely omitted. On the other hand the medical evidence leaves no room for doubt that both parties exchanged murderous blows with blunt weapons in consequence of which five persons on the side of the prosecution and five persons on the side of the Appellants sustained fairly severe injuries including head injuries and one Choudhuri Rout was also killed. Though the Appellants party are also guilty of suppressing a material portion of the occurrence the prosecution cannot rely on this unsatisfactory feature in the counter F.I.R. but, has to prove its own case beyond reasonable doubt. Though the Appellants party are also guilty of suppressing a material portion of the occurrence the prosecution cannot rely on this unsatisfactory feature in the counter F.I.R. but, has to prove its own case beyond reasonable doubt. The very fact that the injuries sustained by the accused's party are completely omitted in the F.I.R. of Khadala patra (P.W. 1) and the origin of the quarrel is also not given out leads to a reasonable suspicion that the prosecution witnesses are anxious to conceal a material part of the occurrence lest it should damage their case. Hence, the evidence of the eye-witnesses has to be scrutinised with great care, especially when admittedly almost all the eye-witnesses belong to the informant?s party and are bitter enemies of the accused persons. Moreover, three of the eye-witnesses, namely, Khadala Patra (P.W. 1), Pandab Padhan (P.W. 3) and Durjodhan Padhan (P. W. 14), are accused persons in the counter case and they are vitally interested in suppressing those portions of the occurrence which would not only damage the present case but also incriminate them in the counter case. 5. The most striking feature in the present case is the absence of any agreed version as to how the fight arose. Each of the eye-witnesses has given his own version. Thus P.W. 1 Khadala Patra pleaded complete ignorance as to how the fight started and stated that when he reached the village street he saw the assault on Choudhuri Rout going on and that when he remonstrated he was also assaulted by Appellant Purushottam. He has gone back upon his original statement in the F.I.R. to the effect that Pandab Padhan (P. W.3) and Uday Patra (P. W. 4) were also with him when he first saw the assault and that when they joined him in the remonstrance Pan dab was assaulted. The reason for this resiling from his F.I.R. version is obvious. Pandab Padhan (P. W. 5) while giving evidence in the Sessions Court has stated that the trouble arose because that evening there was some quarrel between his brother Narayan Padhan (P. W. 2) and Appellant Jagannath Padhan due to his goat entering into the bari of Jagannath. According to him, on account of this quarrel the Appellants and their companions came to attack his brother Narayan and subsequently when he remonstrated he was assaulted. According to him, on account of this quarrel the Appellants and their companions came to attack his brother Narayan and subsequently when he remonstrated he was assaulted. Just then the deceased Choudhuri Rout intervened and then he was murderously attacked and killed by the accused's party. Thus Pandab Padhan's version about the occurrence is at complete variance with the F.I.R. version as given by Khadala Patra (P. W. 1). If, as stated by P.W. 1 in the F.I.R. Pandab accompanied him and they both saw the assault on Choudhuri Rout for the first time and when they remonstrated they were both beaten by the assailants it is difficult to understand how Pandab could say In Court that he was first beaten by the Appellants' party on account of the goat incident that evening and when Choudhuri Rout intervened on his behalf he was murdered. This vital discrepancy regarding the occurrence has not been satisfactorily explained. Doubtless, the informant Khadala Patra (P. W. 1) by denying Pandab's presence with him when he first saw the occurrence has attempted at some sort of reconciliation of the discrepancy; but his own F.I.R. contradicts him. Moreover, It is difficult to believe his statement that before he went to the police station to lodge F.I.R. he did not learn from Pandab Padhan as to what exactly had happened prior to the murderous attack on Choudhuri Rout, He admitted that this Pandab accompanied him to the police station but stated that they had no talk about the occurrence on the way. This is not believable at all. 6. The other eye-witnesses have also not given a consistent version as to how the fight took place. Thus P.W. 2, the brother of Pandab (P. W. 3), who has spoken both about the goat Incident that evening and the subsequent fight leading to the death of Choudhuri Rout has made an attempt to implicate more persons than were mentioned by him during his examination before the police. Before the police he did not name accused Krupasindhu, Madhab and Purushottom as the assailants during the goat incident but while giving evidence in Court he has implicated them also. Moreover, before the Police he did not name Pandab Patra as the assailant of Choudhuri Rout. But while giving evidence in Court he has named him also as one of the assailants. Moreover, before the Police he did not name Pandab Patra as the assailant of Choudhuri Rout. But while giving evidence in Court he has named him also as one of the assailants. It is obvious that the witness was anxious to implicate as many persons of the rival faction as possible in connexion with the incident. P. Ws. 4, 8 and 11 who also claimed to be eyewitnesses were not believed by the lower Court and it is therefore unnecessary to discuss their evidence. 7. The trial court has relied mainly on the evidence of P.W. 6 Madhab Rout, the son of the deceased, and P.W. 13 Srimati Routani, the sister-in-law (elder brother's wife) of the deceased Choudhuri Rout. The trial court thought that these two witnesses were fairly disinterested and their evidence may be taken as corroborative of the evidence of the injured eye-witnesses. But as already pointed out, deceased Choudhuri Rout has definitely sided with the prosecution-party by deposing in a proceeding u/s 145 Code of Criminal Procedure against the accused's party in 1954 and he cannot therefore be said to be a disinterested person. P.W. 6 who is his son must therefore be held to belong to the prosecution-party who admittedly were on terms of enmity with the accused's party. He also admitted that he was cultivating some Kotha lands which originally belonged to the accused?s party. Moreover, this witness has not given a consistent version about the whole incident. He did not name before the Police Pandab Patra as the assailant of his father; but he was ready to implicate him also in the murder case while giving evidence in the Sessions Court. He has no explanation to give for the multiple injuries found on several accused persons. This itself is sufficient to show that he was suppressing a material portion of the occurrence. Srimati Routani (P. W. 13) has put forward two different versions of the incident. Before the committing Magistrate she stated that the accused persons on the one hand and Pandab Padhan and Narayan Padhan on the other, were engaged in a fight in the village road and when Choudhuri Rout intervened he got some blows on his head. Srimati Routani (P. W. 13) has put forward two different versions of the incident. Before the committing Magistrate she stated that the accused persons on the one hand and Pandab Padhan and Narayan Padhan on the other, were engaged in a fight in the village road and when Choudhuri Rout intervened he got some blows on his head. This statement seems to indicate that there was some sort of mutual assault between Narayan Padhan (p. W. 2) and Pandab Padhan (P. W. 3) on the one hand and the accused persons on the other which proceeded the attack on Choudhuri Rout. While giving evidence In the Sessions, Court, however, she was persuaded to say that Pandab was unarmed and was merely exchanging words and that when Choudhuri Rant went there to pacify the mob he was attacked and killed. The story of mutual assault between P. Ws. 2 & 3 on the one hand and the accused persons on the other was given a complete go by and no explanation has been given to account for the extensive injuries found on the accused persons. 8. The only other eye-witness is Durjodhan Padhan (P. W. 14). He is admittedly the leader of the prosecution-party and is an arch enemy of the accused persons. His evidence cannot be accepted without adequate corroboration from independent sources. 9. Thus, the F.I.R. version has been materially changed when the witnesses gave evidence in the Sessions Court. The eye-witnesses (P. Ws. 1, 2, 3, 4, 6, 8, 11 and 14) are proved to be members of a party hostile to the accused persons. They have completely suppressed the injuries found on the accused persons and thereby discredited their own evidence. There are also material discrepancies between their evidence in Court and their previous statements before the police. The least interested of all the prosecution witnesses, namely, Srimati Routani (P. W.13) stated before the committing Magistrate that there was some sort of mutual fight between P. Ws. 2 and 3 on the one hand and accused persons on the other which preceded the attack on Choudhuri Rout. But she did not stick to this version while giving evidence in the Sessions Court and wanted to make it appear as if the prosecution-party were the victims of an unprovoked attack by the accused persons. It is true that the injuries on some of the eye-witnesses, namely, P. Ws. But she did not stick to this version while giving evidence in the Sessions Court and wanted to make it appear as if the prosecution-party were the victims of an unprovoked attack by the accused persons. It is true that the injuries on some of the eye-witnesses, namely, P. Ws. 1, 3, 4,8 and 11 show that they were undoubtedly present at the spot and were competent to depose as eye-witnesses. But mere competence to depose as an eye-witness does not necessarily means that his evidence should be taken as reliable. Once it is established that the eye-witnesses belong to the hostile faction and it is also clear that they are suppressing material portion of the occurrence it is difficult to accept their evidence as to how exactly the fight took place. Doubtless, if a consistent story had been pot forward it may be possible for a Court of Justice even to accept the testimony of partisan witnesses, especially where, as in the present case, the village is divided into two factions and disinterested persons may not be available. But when the F.I.R. version and the case pot forward in Court do not tally it will be extremely hazardous for a Court to conjecture as to how the fight must have taken place. The nature of the injuries sustained by both sides lends some support to the view that there was some sod of mutual fight during the course of which the deceased sustained fatal injuries. But the evidence of the prosecution witnesses as to how he was assaulted and who his assailants were cannot be accepted. The Appellants can claim the benefit of doubt. 10. I would therefore, allow the appeal, set aside the conviction and sentence and acquit the Appellants. Rao, J. 11. I agree. 12. Appeal allowed. Final Result : Allowed