JUDGMENT : Narasimham, C.J. - This is an appeal by the State of Orissa against the judgment of the Sessions Judge of Mayurbhanj, acquitting the two Respondents who were tried in his Court for offences under Sections 302/34, Indian Penal Code and 430/394 Indian Penal Code. 2. There is a village known as Ghan ghana in the extreme northern corner of Mayurbhanj district-adjacent to West Bengal where one Konda Majhi was living with his wife Singha Majhiani (p.w. 5) and children in his house. The houses in that village are scattered about and somewhat isolated from one another, the house nearest to that of Konda Majhi being that of one Mohan Chandra Singh (p.w. 6) nearly 300 yards away. Respondent No. 1 Umesh Paramanik belongs to another village in Mayurbhanj district while Respondent No. 2 Ghasia Naik belongs to a village in Midnapore district in West Bengal on the other side of the border. It was alleged by the prosecution that these two Respondents and another culprit (who is still untraced) attempted to commit burglary in the house of Konda Majhi during the night of the 23rd/24th June 1961. The inmates of the house were then sleeping, after locking the house. Kanda's wife Singha Majhiani (p.w. 5) awoke on hearing some sound. She aroused her husband and they both went towards the southern side of the house and found three persons standing there. Konda Majhi immediately rushed at them and began to assault them with his (sic) but they retaliated and gave him repeated blows on his head in consequence of which he fell down dead at the spot. His wife raised an alarm but she was immediately gagged and assaulted, by some of the culprits. It was then alleged that they broke open the lock, entered house, and, stole some utensils and a Mobil oil tin containing some oil (M.O.I.). After the departure of the culprits the woman (p.w. 5) went to the house of Mohan Chandra Singh (p.w. 6) and informed him about the commission of the crime. Then an alarm was raised in the village and several villagers reached Kanda's house and found him lying dead. They also noticed a hole dug on the southern side of the wall of the house which according to P.W. 5 was dug by the culprits with a view to gain entrance into the house. Then an alarm was raised in the village and several villagers reached Kanda's house and found him lying dead. They also noticed a hole dug on the southern side of the wall of the house which according to P.W. 5 was dug by the culprits with a view to gain entrance into the house. Mohan Chandra Singh (p.w. 6) learnt about the incident from Singha Majhiani (p.w. 5) went to. Saliapada Police Station 8 miles away along with P.W. 7, and lodged F.I.R. at about 8 a.m. on 24th June 1961, before the officer-in-Charge (p.w. 11). P.W. 11 at once hurried to the spot, sent the corpse of Konda Majhi for postmortem examination and, after questioning P.W. 5 and finding injuries on her he got her medically examined. The two Respondents were in due course arrested and as some injuries were noticed on Respondent Umesh Paramanik he was also sent up for medical examination. 3. During search of the house of Respondent Umesh the Police recovered a mobile oil tin lying buried in the house of that Respondent in the backyard. This was subsequently identified by Singha Majhiani (p.w. 5) as the tin stolen by the burglars from her house during the fatal night. She identified this tin at the Test Identification Parade also. 4. The post mortem examination on the corpse of Kondha Majhi was conducted by Dr. A. Acharya (p.w. 1) who found five external injuries. On dissection he found that the two parietal bones, the occipital bones and the temporal bones were fractured. There is no doubt that his head was smashed and the assailants had no other intention except to kill him outright, though the weapon used was only a blunt weapon. On the person of Respondent Umesh Paramanik he found two scratch marks and ecchymosis, on the infraspinatus region. The second injury appeared to have been caused by a blunt weapon like a lathi. The first injury might have been caused by some pointed weapon. Singha Majhiani (p.w. 5) was medically examined by Dr. N. Acharya (p.w. 2) who found bruises on her forearm and left side of the back. These appeared to have been caused by a blunt weapon. 5. To prove the case the prosecution relied mainly on the testimony of the sole eye witnesses, namely Singha Majhiani (p.w. 5). Singha Majhiani (p.w. 5) was medically examined by Dr. N. Acharya (p.w. 2) who found bruises on her forearm and left side of the back. These appeared to have been caused by a blunt weapon. 5. To prove the case the prosecution relied mainly on the testimony of the sole eye witnesses, namely Singha Majhiani (p.w. 5). To corroborate her evidence the prosecution relied on that of some other co-villagers namely, p.ws. 6, 7 and 8 who stated that they went to the spot on hearing the alarm and that P.W. 5 named the two Respondents as the assailants. She did not know their actual names, but stated that she had seen them coming to her village on previous occasions for catching fish and so she knew them: Respondent No. 1 as the son-in-law of Ishwar and Respondent No. 2 as the son-in-law of one Dhamo. It was by this method of description that she named the two Respondents before the villagers. To corroborate the case against Respondent No. 1 Umesh Paramanik the prosecution relied on the fact that though injuries were found on him his explanation to account for the injuries was not believable. The prosecution also relied on the recovery of the Tin (M.O.I) from the backyard of the house of that Respondent and its identification by P.W. 5 as her tin which had been stolen by the burglars during that night. 6. The learned Sessions Judge thought that the evidence of P.W. 5 did not inspire confidence mainly because there were some inconsistencies and improbabilities in the case. First of all he thought that Kondha Majhi was a somewhat poor man and it was highly unlikely that burglars would think of committing burglary in his house. Secondly he relied on the version put forward in the F.I.R. in which though Respondent No. 2 was described as the son-in-law of Dhuma Respondent No. 1 Paramanik was not described at all; and moreover there was no mention in the F.I.R. of the subsequent breaking open of the lock of the house and theft of articles from there. The learned Judge also thought that there must have been difficulty in identifying the culprits as there were creepers and big trees near the place where the hole was found dig and as it was a cloudy night. The learned Judge also thought that there must have been difficulty in identifying the culprits as there were creepers and big trees near the place where the hole was found dig and as it was a cloudy night. As regards the identification of the tin (M.O.I) he did not wish to attach much importance to it because after seizure the Investigating officer kept it in the Police Station till the date of the test identification parade. He therefore thought that there were ample opportunities for the Police officers to show it to P.W. 5 prior to the actual test identification parade and that consequently her identification of the same should not be given importance. The learned Judge has not given any special reason as to why an adverse inference should not be drawn against Respondent No. 1 due to his failure to account for the injuries noticed on his person. 7. We are conscious that this is an appeal against an order of acquittal. The principles governing interference by the High Court against an order of acquittal by the Sessions Judge who had ample opportunities of seeing the demeanour of witnesses in the witness box have been repeatedly laid down by their Lordships of the Supreme Court in various decisions the most recent of which are those in Sanwat Singh and Others Vs. State of Rajasthan, and AIR 1962 S.C. 439 , see also the latest unreported decision of the Supreme Court in Criminal Appeals 176 of 1959 and 40 of 1960 (decided on the 24th April 1962). 8. After giving due weight to the opinion given by the learned Sessions Judge, we are constrained to disagree with his finding regarding the credibility to be given to the evidence of P.W. 5 the wife of the deceased Kondha Majhi. She is the sole eye-witness to the occurrence. 9. A striking feature in the case which has been overlooked by the lower court is the complete absence of any motive on the side of any of the prosecution witnesses to bring a false case against the two Respondents. They do not belong to the village and though suggestions of enmity were made nothing has been proved. There is no reason why Singha Majhiani (p.w. 5) should implicate them falsely on such a serious charge. They do not belong to the village and though suggestions of enmity were made nothing has been proved. There is no reason why Singha Majhiani (p.w. 5) should implicate them falsely on such a serious charge. It is true that she knew them from before because they used to come to her village on some previous occasions to catch fish. But she did not know their names and knew them only as the son-in-law of Iswar and the son-in-law of Dhuma. Doubtless, even in the absence of any motive there may be some doubts regarding their identification especially as the incident took place in the latter part of the night at about 2 a.m. Hence the evidence of P.W. 5 may have to be scrutinised with great care. But she stated that there was moonlight when she came out and that she was able to recognise the two Respondents whom she bad seen before. The discrepancies in her evidence are trivial. Before the Police she stated that there was a scuffle between her husband and his assailants in the course of which he rolled on the ground. In the Sessions Court be stated that the assault was abrupt and there was no scuffle. Similarly, having said in examination-in-Chief that Respondent No. 1 gagged her and Respondent No. 2 assaulted her, she stated in cross examination that she could not say who exactly gagged her. In my opinion these so called discrepancies are petty. A ghastly incident in-which her husband was brutally done to death took the place before her very eyes and she was herself beaten by the, culprits. Under such circumstances she must have been dazed as stated in her evidence, and even if there are some minor inconsistencies as regards the details of the occurrence she has been consistent throughout as regards the identity of the assailants. The injuries found on her person are themselves sufficient to show that she was present at the spot and that she is the most competent person to speak about the occurrence. 10. Reference was also made to a discrepancy between the version as given in the F.I.R and the version as given in the Court. The F.I.R informant was not an eye-witness to the occurrence, but a co-villager named Mohan Chandra Singh (p.w. 6). 10. Reference was also made to a discrepancy between the version as given in the F.I.R and the version as given in the Court. The F.I.R informant was not an eye-witness to the occurrence, but a co-villager named Mohan Chandra Singh (p.w. 6). In the F.I.R he stated that when questioned by him P.W. 5 named the son-in-law of Dhuma as the assailant and further stated that she could not identify anyone else. In the Court of Sessions he did not state that she named the other Respondent also as the son-in-law of Iswar and that she mentioned this fact also to the Police at the time of lodging the F.I.R. The portion of his evidence may not be believable in view of the F.I.R. But it is clear that there was some confusion on this point. P.W. 7 who accompanied P.W. 6 to the Police Station stated before the Police that though he did not inform them about Iswar's son-in-law being one of the culprits he nevertheless stated that he had forgotten the name as mentioned by P.W. 5. This shows that p.ws. 6 and 7 while rushing to the Police Station to lodge F.I.R. forgot the description given by P.W. 5 about the other Respondent as the son-in-law of Iswar. Then again as soon as the S.I. of Police reached the spot within a few hours after the lodging of F.I.R. he examined P.W. 5 and another villager named Ramnath Singh (p.w. 8). P.W. 8 stated the P.W. 5 told him that the son-in-law of Dhuma and the son-in-law of Iswar had committed the crime. It in difficult to believe that in such an out of the way village, anyone, within such a short time, could have concocted a false charge against this Respondent and persuaded these two witnesses to implicate him in such a serious crime especially when there is no evidence of any enemy of that Respondent living in the village. Under these circumstances I am not inclined to attach much importance to the omission of the name of Respondent No. 1 in the F.I.R., though this omission may to some extent justify a Court in insisting on some corroboration so far as the part played by Respondent No. 1 in tile crime is concerned. 11. Such corroboration is found in the tell-tale injuries found on Respondent No. 1 (Umesh Paramanik). 11. Such corroboration is found in the tell-tale injuries found on Respondent No. 1 (Umesh Paramanik). According to P.W. 5 her husband assaulted the culprits with a lathi and if her earlier statement before the Police is to be believed he had a scuffle with his assailants and rolled on the ground. The injury found on Respondent No. 1 thus fits in with her version. When caned upon to explain his injuries that Respondent stated in his examination u/s 342, Code of Criminal Procedure that he got them while he was collecting nux vomica. He has not clearly stated how he could get such injuries while collecting nux vomica. He alone is in the best position to explain the same. In view of his failure to give a satisfactory explanation for his injuries it must be held that the presence of the injuries is an incriminating circumstance against him. Hence whatever doubt there may have been about his participation in the crime due to the omission of his name in the F.I.R. is cleared by the presence of the injuries on his person. 12. Another circumstance against him is the recovery of M.O.I from the backyard of his house. I would not however attach much importance to this because the search witness (p.w. 10) did not claim to have actually seen the tin recovered from the backyard of the house of this Respondent. Moreover it was kept at the Police Station for several days before the test identification parade was held and the possibility of P.W. 5 having been it while it was at the Police Station is always there. The Sessions Judge's comment on this piece of evidence is perhaps justified. 13. The learned Sessions Judge has observed that inasmuch as Iswar and Dhuma have several sons-in-law their mere description of the 2 culprits as the sons-in-law of Iswar and Dhuma would not suffice to establish the identity of the Respondents beyond reasonable doubt. But the learned Judge seems to have overlooked the fact that P.W. 5 had stated that she had seen the two Respondents, catching fish in her village on some previous occasions. It is clear therefore that she knew them from before as the sons-in-law of Iswar and Dhuma. But the learned Judge seems to have overlooked the fact that P.W. 5 had stated that she had seen the two Respondents, catching fish in her village on some previous occasions. It is clear therefore that she knew them from before as the sons-in-law of Iswar and Dhuma. Iswar and Dhuma may have other sons-in-law, but so far as P.W. 5 is concerned she was able to identify the Respondents as their sons-in-law who participated in the crime. She identified them in Court also as the culprits. Under such circumstances the fact that Iswar and Dhuma had other sons-in-law is wholly irrelevant. 14. The learned Sessions Judge also commented on the fact that the deceased Kondha Majhi was a comparatively poor man and it was highly improbable that burglars would commit theft and burglary in his house. The evidence on record does not show that the Respondents fully knew the means of Kondha Majhi. All that P.W. 5 stated was that she had seen the two Respondents fishing in the village on some previous occasions and that she knew them. Unless there is further evidence to show that the Respondents were fully aware of the financial condition of Kondha Majhi no inference about the improbability of the commission of burglary in his house can be drawn. Moreover there, is nothing improbable in the commission of burglary, from the house of even a comparatively poor person, by persons in desperate need who think that some valuables may lie concealed in his house. It may be that their expectations were not fulfilled but that would not render the prosecution story improbable. 15. For these reasons we must disagree with the finding of the lower court, and hold that the evidence of P.W. 5 is acceptable in the circumstances of this case. The main offence against the Respondents is under Sections 302/34, Indian Penal Code and none of the Exception to 300, Indian Penal Code would apply. The Respondents took advantage of the fact that Kondha Majhi was the only male member of his house and mercilessly be laboured him with lathis and killed him outright when he resisted their attempt to commit burglary in his house. The Respondents took advantage of the fact that Kondha Majhi was the only male member of his house and mercilessly be laboured him with lathis and killed him outright when he resisted their attempt to commit burglary in his house. The charges against the Respondents u/s 460, Indian Penal Code, and u/s 394, Indian Penal Code for having assaulted Kondha's wife Singha Majhiani (p.w.5) and caused injuries to her are also established, but there is no need to pass a separate sentence in respect of these charges. This however is not a fit case for passing the extreme penalty of law. There was no premeditated intention to kill Kondha Majhi and the Respondents went to his house only to commit burglary but when he interfered and assaulted them, they killed him by assaulting him. Moreover, more than eighteen months have elapsed, since the commission of the Crime. 16. We would accordingly allow this appeal, set aside the order of acquittal, convict the two Respondents under Sections 302/34 Indian Penal Code and sentence each of them to undergo imprisonment for life. We also convict them under Sections 460, Indian Penal Code, but no separate sentence is necessary for those offences. Barman, J. 17. I agree. 18. Appeal allowed. Final Result : Allowed