JUDGMENT : K.B. Panda, J. - The two appellants, Hadibandhu Jali and Bankanidhi Jali, have been convicted under sections 302/149, 302/34 and 148, Indian Penal Code, and have been sentenced to imprisonment for life under section 302/149 without any separate sentence being passed under other sections. The allegation against them is that they have intentionally caused the death of one Ratnakar Parida and another Mohan Mohapatra on the night of 5/6-10-1967 in the context of facts stated below. 2. The appellants belong to village Balabhadrapur and are fishermen by caste while two deceased belong to village Satapadagarh and non-fishermen by caste. These two villages are intervened by a Tope situated in the Chilka Lake. There is chronic bitterness between these two villages over fishery right. In the year 1967 deceased Ratnakar Parida took lease of Ratamati Ghat against the wishes of the fishermen of Balabhadrapur which accelerated the hostility already existing. The people of Balabhadrapur commonly go by the name of fisher-men and the people of Satapadagarh as non-fishermen. 3. On 5-10-1967 Ratnakar Parida, his servant Mohan Mohapatra, Subal Charan Parida (P.W.1) and Panchanan Sahu (P.W.8) proceeded to Tuansahi in a small boat for tending their buffaloes. At about midnight feeling hungry they left their buffaloes in charge of Surendra Naik (Sura, P.W.15) and Bira Naik and left Tuanashi for home in the small boat on which they had come. It is alleged by the prosecution that the two appellants with several others (now acquitted) in pursuance of a pre-plan formed an unlawful assembly with the common object of attacking the deceased party, got themselves heavily armed with deadly weapons like Bhallas and Tentas and on a big boat pursued the small boat. As they neared the small boat, almost abruptly the murderous attack commenced on both the deceased. Seeing this for fear to their lives P.Ws. 1 and 8, who too were in the small boat on the return journey with the two deceased, jumped into the water. Even then P.W.1 received certain injuries while P.W.8 escaped unhurt. The day following, that is, on 6-10-1967, the dead body of Mohan Mohapatra was found stuck to a place called Sorandanga while that of Ratnakar was found floating on 7-10-1967. P.W.1 lodged information at Brahmagiri police station (35kms. away) on 6-10-1967 at 8 P.M. (Ex. 1). After investigation, 16 persons were sent up for trial. The day following, that is, on 6-10-1967, the dead body of Mohan Mohapatra was found stuck to a place called Sorandanga while that of Ratnakar was found floating on 7-10-1967. P.W.1 lodged information at Brahmagiri police station (35kms. away) on 6-10-1967 at 8 P.M. (Ex. 1). After investigation, 16 persons were sent up for trial. The learned Sessions Judge charged them all under sections 302/34, 302/149 and 148, Indian Penal Code, finally convicting the two appellants as stated above and acquitting the rest fourteen of the charges on 19-11-1969. 4. The plea of the appellants in general was that they had been falsely implicated because of long standing previous enmity between the two villages. The specific plea of appellant Bankanidhi was that he was an in Door patient in the Banpur hospital from 1st to 10th of October, 1967 and he adduced evidence to that effect while the other appellant Hadibandhu, though took the same plea of alibi in that he was undergoing eye-treatment at Cuttack on the date of occurrence, adduced no evidence in support of the same. 5. The learned Sessions Judge discarded the evidence of unlawful assembly with deadly weapons with the common object of assaulting the complainants' party, namely, the two deceased and P.Ws. 1 and 8, but basing on the statements of P.Ws. 1 and 8 regarding the fact that appellant Bankanidhi gave a Tenta blow on Ratnakars' belly and appellant Hadibandhu gave a Bhalla blow on Mohans' head, convicted the appellants as aforesaid. 6. It was contended by Mr. Mazmumdar on behalf of the appellants that the charge was so defective as to vitiate the trial, that P.Ws. 1, 8, 10(Maguni Jena) and 16 (Nrasingh Parida) should not have been believed at all as they were interested and their statements discrepant, that regard being had to the fact that the dead bodies were found, floating the two deceased must have died at least 30 hours before, which takes the occurrence, whatever it is, before the alleged time, that is, 5/6-10-1967 mid-night, and lastly that if the alibi of appellant Bankanidhi is accepted, on the same evidence the conviction of the other appellant cannot be sustained. 7. That the two deceased met their end in consequence of a homicidal attack on them is not challenged. The doctor (P.W.20) who held post-mortem on the dead body of Mohan found as many as 10 external injuries. 7. That the two deceased met their end in consequence of a homicidal attack on them is not challenged. The doctor (P.W.20) who held post-mortem on the dead body of Mohan found as many as 10 external injuries. Injury no. 8, according to him, was grievous and fatal in nature. Injury no. 1 was likely to have been caused by a blunt weapon whereas injuries 2, 3, 4, 5, 6 and 10 were caused by sharp cutting weapon and injuries 7, 8 and 9 by sharp penetrating instruments like Tenta. According to him, all the injuries were-ante-mortem and injury no. 8 was sufficient in ordinary course of nature to cause death. He also conducted the post-mortem on the dead body of Ratnakar on 8-10-1967 at 8 A.M. and found 24 external injuries of which injury no. 22 was grievous and fatal. All the injuries were ante-mortem in nature. He opined that injuries 1 to 7, 9, 10, 14, 18, 22 and 24 were likely to have been caused by sharp cutting weapon such as Bhallas with sharp edges while others by blunt substance and rubbing against hard and rough substance like rugged plank of a boat. Thus this part of the prosecution case can be safely assumed over which there is no dispute. 8. We would now address ourselves to the first point raised on behalf of the appellants, namely, validity of the charges. In the three charges, 16 persons have been named as extracted below:- "Charge With One Head I Sri A.P. Guru, B.L., Addl. Sessions Judge, Puri, hereby charge you 1. Bankanidhi Jali, 2. Hadibandhu alias Hadu Jali, 3. Ananda Jali son of Basu Jali, 4. Rankanidhi Jali, 5. Radbamohan Naik, 6. Budhanath Das, 7. Hadibandhu Jali, 8. Purna Chandra Naik, 9. Shyam Sunder Das, 10. Kulamani Jali, 11. Raja kishore Dalei, 12. Shyam Sunder Dalei, 13. Ajib Jali, 14. Bhagiratbi Jali, 15. Gunanidhi Jali and Ananda alias Ana Jali son of Chaitan Jali as follows:- That you on or about the 5th/6th day of October, 1967 at about 1 a.m. in Sidua Chilika water in pursuance of your common intention did commit murder by intentionally causing the death of deceased Ratnakar Parida and Mohan Mohapatra, and thereby committed an offence punishable under section 302/34 of the Indian Penal Code and within my cognizance. ................. Charges With Two Heads I Sri A.P. Guru, Addl. ................. Charges With Two Heads I Sri A.P. Guru, Addl. Session Judge, Puri hereby charge you 1. Bankanidhi Jali, 2. Haribandhu alias Badu Jali, 3. Ananda Jali, son of Basu Jali, 4. Ranka nidhi Jali, 5. Radhamohan Naik, 6. Bhudhanath Das, 7. Hadibandhu Jali, 8. Purnachandra Naik, 9. Shyam Sundar Das, 10. Kulamani Jali, 11. Rajakishore Dalei, 12. Shyam Sundar Dalei, 13. Ajit Jali, 14. Bhagirathi Jali, 15. Gunanidhi Jali and 16. Ananda alias Ana Jali son of Chaitan Jali, as follows:- First : That you on or about the 5/6th day of October 67 at 1 A.M. in Sidua Chilika waters were members of an unlawful assembly and did, in prosecution of the common object of such assembly, i.e. to commit the offence of rioting at that time were armed with deadly weapons such as Bhali, Tentas, Lathis etc. and thereby committed an offence punishable under section 148 of the Indian Penal Code and, within my cognizance. Secondly : That you, on or about the 5/6th day of October, 1967 at about 1 a.m. In Sidua Chilika waters, you were members of an unlawful assembly, in prosecution of the common object of which i.e. in committing murder and rioting, you did commit the murder by intentionally causing the death of Ratnakar Parida and Mohan Mohapatra and you are thereby by under section 149, Indian Penal Code guilty of causing an offence under section 302, of the Indian Penal Code and within my cognizance........." The learned Sessions Judge in his judgment while convicting the two appellants only has discarded the evidence regarding formation of an unlawful assembly with deadly weapons with the common object of committing murder and has also discarded the theory of common intention of the 16 named persons to cause the death of the two deceased. What is significant in this charge is the naming of the 16 persons only. It does not say 16 persons named with some others not known. Virtually therefore the charge is confined to the named 16 persons which as a necessary corollary excludes the participation of any other assailant in it. But unfortunately it is in evidence that more than 16 persons had followed the small boat in the big boat and their number, as the evidence stands, varies from 35 to 45. Virtually therefore the charge is confined to the named 16 persons which as a necessary corollary excludes the participation of any other assailant in it. But unfortunately it is in evidence that more than 16 persons had followed the small boat in the big boat and their number, as the evidence stands, varies from 35 to 45. When the learned lower Court barring the two appellants has acquitted the other 14 accused persons giving them benefit of doubt, evidently the charge under unlawful assembly with deadly weapons fails and, therefore, the conviction of the two appellants under sections 302/149 and 148, Indian Penal Code cannot at all stand. What remains for consideration is the charge under section 302/34. But there is absolutely no evidence that there was meeting of the minds of these two appellants to commit murder of the two deceased, or, in fact, they two caused the death. That apart, the acquittal of the other persons and failure of the bulk of the charges have their due impact on the allegation of common intention of the rest two. Further more, there is no evidence as to how and who gave so many injuries to the two deceased, the evidence of the two eye-witnesses ( P.Ws. 1 and 8) being that they jumped from the boat into the water to save their lives at the commencement of the assault on the two deceased. It follows, therefore, that the numerous injuries found on the two deceased might have been caused by the other occupants of the big boat including the accused persons who have been acquitted. It would not be proper for us to presume that the fatal injuries must have been inflicted by these two appellants. This aspect of the case will be dealt with in greater detail while dealing with the evidence of the two eye-witnesses. Suffice it to say here that on the learned lower Court's own reasoning the conviction of the appellants under sections 302/149 and 302/34 and 148, Indian Penal Code does not stand. At worst, on the evidence of P.Ws. 1 and 8, it boils down to a case under section 324 of the Indian Penal Code only. 9. We would now take up the crucial point for consideration, namely, whether the incident did occur as put up by the prosecution or otherwise as suggested by the defence. At worst, on the evidence of P.Ws. 1 and 8, it boils down to a case under section 324 of the Indian Penal Code only. 9. We would now take up the crucial point for consideration, namely, whether the incident did occur as put up by the prosecution or otherwise as suggested by the defence. The prosecution case is that the two deceased with P.Ws. 1 and 8 on the alleged evening had gone to Tuansahi to graze their buffaloes. The attack of the defence on, the evidence of P.Ws. 1 and 8 is that they are got-up witnesses who are interested and who have developed the prosecution case from stage to stage so as to implicate as many persons as possible. Besides Mr. Mazumdar's alternative argument was that even if P.Ws. 1 and 8 were in that ill-fated boat along the two deceased, it would have been well nigh impossible for them to identify any of the accused persons in that dark night which was the second phase of the moon of the bright fortnight, or to have seen any part of the assault on the two deceased. It is the consistent case of the prosecution that the two deceased and P.Ws. 1 and 8 did go to tend their buffaloes at Tuansahi. It is also the prosecution case that at about mid-night they left the buffaloes in charge of Bira Naik and Surendra Naik P.W.15 and left the place to come back home. It la not disputed that Tuansahi is a place where people of various suborning villages do take their buffaloes for the purpose of grazing. Surendra Naik states that he along with Bira Naik went to Tuansahi at about 9 P.M. taking about 30 heads of buffaloes and reached Tuansahi at 11 p.m. Prior to their arrival the two deceased and P.Ws. 1 and 8 were tending their buffaloes at Tuansahi. His further evidence is that the deceased Ratnakar requested him and Bira Naik to look after their buffaloes so that they might go home, take their meals and return the following morning to take charge of their buffaloes to which they agreed. P.W.15 also saw all the four getting into a boat. His further evidence is that the deceased Ratnakar requested him and Bira Naik to look after their buffaloes so that they might go home, take their meals and return the following morning to take charge of their buffaloes to which they agreed. P.W.15 also saw all the four getting into a boat. They did not return by the morning and so collecting all the buffaloes including those of the deceased, while they were returning, they saw P.W.8 at Tuansahi at a distance of about 200 cubits from them. On enquiry P.W.8 told them how in the mid-stream of Sidua river the fishermen of Balabhadrapur attacked them with Thenga and Tenta and therefore he had fled away. Thus while Sura P.W.15, P.W.8 and Bira Naik were returning with the buffaloes, they found the dead body of Mohan Mohapatra on the edge of Sorandanda. Thereafter they found about 5/6 people coming in a boat and on enquiry they said that on getting information from P.W.1 they had come in search of the attacked party. Seeing the dead body of Mohan and leaving Neelakanta there, the rest went further in search of Ratnakar. P.W.15, P.W.8, Bira and Neelakanta brought the dead body of Mohan to Baliapata of Bankijal where many people gathered round the dead body of Mohan. In cross examination he P.W.15 plainly stated that in the following morning, that is, 6-10-1967, P.W.8 narrated how the fishermen of Balabhadrapur chased and assaulted them with instruments in the river which he and Bira Were surprised to hear. Nothing has been elicited from him in cross examination for which any doubt can be cast on his testimony. There is only a vague allegation that he is disposing falsely against the accused persons being set up by Gopinath Parida P.W.11 which is of no consequence. Thus we hold that in fact the two deceased and P.Ws. 1 and 8 on the night of 5/6-10-1967 had been to Tuansahi to tend buffaloes and we further hold that all the four, namely, the two deceased and P.Ws. 1 and 8, left Tuansahi with their small boat for home leaving their buffaloes at Tuansahi in the care of P.W.15 and Bira Naik, which was an usual affairs. 10. We would now advert to the evidence of the two eyes-witnesses, namely, P.Ws. 1 and 8, and the corroborative evidence of P.Ws. 1 and 8, left Tuansahi with their small boat for home leaving their buffaloes at Tuansahi in the care of P.W.15 and Bira Naik, which was an usual affairs. 10. We would now advert to the evidence of the two eyes-witnesses, namely, P.Ws. 1 and 8, and the corroborative evidence of P.Ws. 10 and 16, i.e. Maguni Jena and Narasingha Parida respectively. P.W.1 states:- " XXX X As we felt hungry, at about midnight we left the buffaloes with Bira Naik and Sura Naik requesting them to look after their buffaloes till they returned taking their meals. With their consent all the four left and Ratnakar rowed the boat. While they neared a place on Chilika Lake called Sidua river a big boat came near where appellant Bankanidhi was there. Banka questioned as to which village the small boat belonged. Ratnakar replied that it was 'Gada Mahisia Danga'. Then appellant Banka retorted saying that they had no right to tend their buffaloes in that Nashi. By that time the big boat had come very close to the small boat and appellant Banka gave a Bhali blow to Ratnakar. As a result Ratnakar fell inside the boat shouting Bapalo Marigali (Meaning father, I am dying). Thereafter first appellant Hadu Jali and then Gunanidhi Jali (now acquitted) gave Bhali blows to Mohan Mohapatra (deceased). So he also fell inside the boat. Seeing this assault Panchanan jumped to the water out of fear. Ananda Jali gave a Bhali blow which hit on my right foot. I also fell in the water and I was injured. To save my life, I swam in the water. While I was swimming I heard the voice of deceased Mohan Mohapatra, who was saying Bhaimane Marigali Bhaimane Kainhiki Emiti Hannucha (meaning Brother, I am dying, why are you cutting us like this). I also heard voice saying that they would suck their blood and would not spare them x x x x Then I swam a distance of 200 cubits. When the big boat came near me, some body aimed a bhali blow which hit my head and so I hid inside the water. The boat passed over the water inside which I was swimming. Some of them expressed that two were already dead and the person swimming (mean myself) would also die of the head injury. They should now go away. Then they rowed towards Barunakunda. The boat passed over the water inside which I was swimming. Some of them expressed that two were already dead and the person swimming (mean myself) would also die of the head injury. They should now go away. Then they rowed towards Barunakunda. Then I swam some more distance and walked in knee-deep or chest-deep water and thus covered a distance of 200 cubits and reached my village at about 2.30 A.M. I went to my father-in-law Mukunda Patasahani's house and called him twice and then became senseless in his house. After I regained senses I asked my family members to inform the inmates of Ratnakar, Panchanan and Mohan Mohapatra saying them Panchanan had escaped uninjured but Ratnakar and Mohan had been assaulted and that I did not know whether by then they were alive or dead. My family members went to inform their family members. Next day, about one Ghadi after day break my father-in-law tola me that Mohan Mohapatra could be traced, Ratnakar was still un-traced." The Officer-in-charge refused to take information from Ratnakar's father Gopinath Parida and so P.W.1 lodged the F.I.R. In it besides the two appellants, Gunanidhi and Ananda have been named. While P.W.1 was in Brahmagiri dispensary as an In-door patient, he heard on 7-10-1967 that the dead body of Ratnakar had been traced out. P.W.1 has stated that in the big boat in all there were about 45 persons and that these people had 5/7 torches which they focused while assaulting them and thus he could see them. He admits of the litigation between the two parties and that he has not stated in the F.I.R. that 40/45 persons were in the big boat. In cross-examination he further admits that even without torch light he could have identified the accused persons as they came near. P.W.8 Panchanan corroborates P.W.1 in all material particulars about their going to tend buffaloes and while returning how they were attacked by 40/50 persons coming in a big boat. His evidence on this vital aspect is as follows: "x x x x While the big boat came near us and was at a distance of 10 to 20 cubits from our boat, accused Bankanidhi Jali questioned us as to which village our boat belonged. Ratnakar Parida replied that the boat was of Gadamahisal. His evidence on this vital aspect is as follows: "x x x x While the big boat came near us and was at a distance of 10 to 20 cubits from our boat, accused Bankanidhi Jali questioned us as to which village our boat belonged. Ratnakar Parida replied that the boat was of Gadamahisal. Thereupon Bankanidhi Jali retorted saying that we had no right to graze buffaloes in Chilika kudas and so saying he pierced the Bhalli to the stomach of Ratnakar Parida. Hadu Jali pierced the Bhalli on the head and Gunanidhi Jali pierced the Bhalli near the shoulder of deceased Mohan Mohapatra. So out of fear I jumped into the water. After me P.W.1 jumped into the the water. I have not seen the assault on him " As already stated, towards morning he met Bira and Sura and narrated the incident to them and they got stunned. In cross-examination he admits that because of flashes of the torches light by the accused persons he could identify some of them. The F.I.R. version and the statements of these two witnesses do not vary except that in the F.I.R. only four accused persons have been specifically named including the two appellants. 11. We have already held that they were with the two deceased in the small boat when the attack commenced. So their evidence to have seen the commencement of the assault is nothing improbable. Their statements were subjected to serious comments that they were not at all there and had been tutored to say so, that they are partisan witnesses and their evidence is so very exaggerated that it has become inherently incredible. In that context it was said that that being a dark night, in the blue Chilika waters they could not have identified any in another boat and just for the sake of identification the prosecution has introduced certain torches in the bands of the assailants, which when focused would never make the occupants of the big boat visible to the occupants of the small boat. Prima facie this criticism appears acceptable; but on a deeper probe, though it could be taken to be rather exaggerated, yet not without any pith and substance. Prima facie this criticism appears acceptable; but on a deeper probe, though it could be taken to be rather exaggerated, yet not without any pith and substance. Out reasons are that the two parties are not utterly strangers and when the appellants pursued the small boat, in ordinary course of nature there must have been some heated discussions and in fact before the assault, appellant Bankanidhi challenged the complainant's party under what authority they brought buffaloes to be tended in Chilika kudas. Besides, the focusing of torch lights, if any, all cannot be taken to be by persons sitting at the extreme front end of the big boat and so, the persons coming within the range of the light sitting on the big boat could be identified. Be that as it may, it is of common experience that in the Chilika Lake under a clear sky studded with stars there is a reflection which is sufficient for identification of familiar persons at close quarters. Furthermore, these two witnesses do not depose as to how the assault on the two deceased developed in consequence of which numerous injuries were found on them to, brand them as tutored witnesses. They in order to save their lives, jumped into water and escaped - one hurt and the other unhurt. In their evidence they involve the two appellants and only another namely, Gunanidhi (since acquitted). That is also the story in the F.I.R. Their subsequent conduct - one going back to the kuda and the other swimming to his village - is quite natural and consistent with the statement of P.W.15 and the discovery of the dead body of Mohan. Merely because there is some exaggeration or some contradiction, which does not go to the root of the matter, the evidence of witnesses cannot be, as a general rule, jettisoned as unbelievable. There is no such universal rule of law that relations should not be believed or partisan witnesses should not be believed. Merely because there is some exaggeration or some contradiction, which does not go to the root of the matter, the evidence of witnesses cannot be, as a general rule, jettisoned as unbelievable. There is no such universal rule of law that relations should not be believed or partisan witnesses should not be believed. It is only a rule of caution given so that their evidence should be closely scrutinised and if they conform to the general trend of events, human conduct and consistent with the broad probabilities of the case in hand, gaining corroboration from other sources oral or circumstantial evidence, then it is the bounden duty of the Court to sift the chaff from the grain and accept that part of it which stands to reason. It is a misconception that a witness be believed in toto or disbelieved in toto which is a rule of English law not accepted by Courts in India. Accordingly the little evidence tendered by them regarding the commencement of the assault we are not persuaded to discard as unworthy of credit. 12. Maguni Jena (P.W.10) of village Satapadagada stated how he had seen the appellants and some 14/15 others coming with Tentas and Bhallas at about 6/7 P.M. and loaded them in a boat. Early next morning he heard that P.W.1 had certain injuries, Mohan Mohapatra had been killed and Ratnakar was un-traced. This he related to one Kunjabehari Parida, the Ward Member of the village. At about 2 P.M. this witness started for Brahmagiri with P.Ws. 1, 2, 8 and some others with the dead body of Mohan Mohapatra. This evidence the prosecution suggests to show how there was a preparation for assault in the evening of 5-10-1967, but does not carry us far. 13. Narasingha Parida (P.W.16) of the same village Stapadagada is the brother of decreased Ratnakar. On the date of occurrence in the afternoon he had been to his land at Mahisiagada which is on the river bank of Salua. In that river he found the two appellants and some others going in a boat. That very evening P.Ws. 1, 8 and the two deceased went with their buffaloes to Tuanashi. At about 3/4 a.m. on that night P.W.2 (Makunda Patasahani) roused him and informed what ha heard from P.W.1 and how P.W.1 had become senseless. He suggested to go in search of Ratnakar. That very evening P.Ws. 1, 8 and the two deceased went with their buffaloes to Tuanashi. At about 3/4 a.m. on that night P.W.2 (Makunda Patasahani) roused him and informed what ha heard from P.W.1 and how P.W.1 had become senseless. He suggested to go in search of Ratnakar. Accordingly this witness with Dwija Balabantra, Panchu Baibantra, Neelkantha Jena and Trinath Naik (not examined) went in a boat in search of Ratnakar, Mohan and Panchanan (P.W.8) towards Tuanashi. While proceeding in the boat they saw Bira Naik. P.ws. 8 and 15 standing on Soranadanda near the dead body of Mohan Mohapatra. To their queries this witness told how he heard the incident from P.W.2. Leaving Neelakantha there with P.Ws. 8 and 15 and leaving instructions to take the dead body, he proceeded in the boat towards Tuanashi in search of Ratnakar but to no purpose. In course of the search he met Basudeb Dalai (P.W.3) who told him that the two appellants with 7/8 named persons along with 10/40 others were seen by him going in a boat towards Balugaon. While returning they met at Mahisiagada the Havildar who directed to take the dead body of Mohan Mohapatra to Brahmagiri Police Station. They stayed at Brahmagiri that night. While returning next day at about 12 noon they found the dead body of Ratnakar at Mahisiagada where many other people had gathered. The dead body of Ratnakar was sent to Puri and his brother Prahallad (not examined) went with the dead body. Thus his evidence is only material to show how and when the dead bodies of Mohan and Ratnakar were traced out. 14. Basing on the discovery of the dead body of Mohan on the 6th October morning it was urged with great vehemence that the prosecution case was untrue, unnatural and contrary to science, as it is. Referring to Taylor's Principles and Practise of Medical Jurisprudence, Vol. I (10th Ed.), it was seriously contended that a fresh dead body would at least remain two days under water before it acquires buoyancy to float. Therefore, Mr. Mazumdar's argument was that the story of the prosecution of assault in course of the night of 5/6-10-1967 was a myth. True, the science so far as it goes, we are not going to disagree ; but let that not beguile us of facts of factors that work against it. Therefore, Mr. Mazumdar's argument was that the story of the prosecution of assault in course of the night of 5/6-10-1967 was a myth. True, the science so far as it goes, we are not going to disagree ; but let that not beguile us of facts of factors that work against it. In Lemoyne Snyder book on Homicide Investigation, First Edition, 7th Printing, at page 204, under the heading The Sinking and Rising of Drowned Bodies, it concludes Baying : "There is no fixed rule to determing how long a body has been in the water." So far as the science goes, it also admits that fat persons will float earlier than bonny persons ; children whose bones are not developed will float earlier ; and women are likely to float earlier than men. That apart, the other factors are the depth Sind warmth of the water, current in the water and obstruction, if any. That being so, the contention of Mr. Mazumdar cannot be accepted as an universal truth regard being had to the fact that there is no evidence as to the depth of the water where actually the assault took place or where the two dead bodies of Ratnakar and Mohan fell into the water. So far as the dead body of Mohan is concerned, it was found at the water's edge. The Chilka Lake is subject to ebb and flow tides. There are lagoons and sandy patches any weeds at various places where the depth of water is very low. The dead body of Mohan being at the water's edge, is very likely to have been stuck there due to receding of water or brought by current. It is not the defence case than when Mohan's dead body was found, it was in a state of putrefaction. That apart, Che very fact that Ratnakar's dead body was also not similarly found in spite of search in the neighbourhood goes to show that where it fell, the water was deep and it went down. Later after lapse of 36 hours of more it was found floating. This does not negative the scientific proposition but only strengthens it, for the various factors have to be weighed before any accurate conclusion can be arrived at. Later after lapse of 36 hours of more it was found floating. This does not negative the scientific proposition but only strengthens it, for the various factors have to be weighed before any accurate conclusion can be arrived at. In this context, the academic discussion of immediate submersion of the body and subsequent buoyancy loses all its importance and glamour to brand the prosecution case as a got-up one and presume it to have happened elsewhere in different circumstances much earlier. 15. We will next advert to the defence plea of alibi taken and proved on behalf of appellant Bankanidhi Jali through D.W. 1 (Dr. Pradwina Kumar Das) and some documents Ex. A is an entry under Serial 505 dated 1-10-1967 in the Indoor Register of patients of Banpur Hospital indicating that one Bankanidhi Jena (father's name not mentioned) of Satapada Balabhadrapur, to be an indoor patient. Ext. A/1 is an entry on-12-10-1967 in the said Register showing mention of the said serial no. 505 without any remark against it. Ex. B is the Bed Head Ticket of Banpur Hospital showing the patients name as Bankanidhi Jani s/o Juti Jani of Satapada Balabhadrapur whose date of admission was 1-10-1967 and the date of discharge 12-10-1967. The discharge Certificate of the said Bankanidhi Jani s/o Juti Jani is Ex. C. Ext. D is a medical certificate issued on 26-12-1967 which is extracted below: "Certified that Sri Bankanidhi Jani, HM, s/o. Juti Jani of village Satapada Balabhadrapur P.S. Brahmagiri, was suffering from Entric Fever and was under my treatment from 1, 10-1967 to 12-10-1967. Sd. P.K. Das. B.So. M.B.B.S. Regd. No. 819 (Orissa)" Sri Padmanav Das, Pharmacist, who was working as such in Banpur Dispensary on 1-10-1967 was examined as Court Witness. He says that he made the entries in Ex-A during the period in question. The Outdoor Register is maintained by the Medical Officer. Any indoor patient's name is first entered in the Outdoor Register. But the name of patient Bankanidhi Jani does not appear on 1-10-1967 in the Outdoor Register. The name "Bankanidhi Jani" is in other exhibits and his father's name at some places is mentioned as Juti Jani. The present appellant is Bankanidhi Jali son of Juti Jali. Any indoor patient's name is first entered in the Outdoor Register. But the name of patient Bankanidhi Jani does not appear on 1-10-1967 in the Outdoor Register. The name "Bankanidhi Jani" is in other exhibits and his father's name at some places is mentioned as Juti Jani. The present appellant is Bankanidhi Jali son of Juti Jali. It is rather strange that the surname of the patient and his father would appear different from the surname of the appellant at all places if they were the same person. Besides, the accused party belongs to village Balabhadrapur which is a separate village from Satapada-the village of the complainant's party. The mention of the village name in the hospital papers as Satapada-Balabhadrapur is equally intriguing. What is more significant is that if really the present appellant Bankanidhi Jali was an in-door patient from 1-10-1967 to 12-10-1967, there was absolutely no necessity for him to approach the doctor D.W. 1 on 26-12-1967 for getting a certificate regarding his treatment. The Indoor Register, the Out-door Register, the Discharge Certificate, which are expected to be kept in regular course of business, are more reliable and authentic than a stray piece of paper certifying that some body was under the treatment of a doctor granting the same for a certain period Which can be created at any time. Besides, the doctor does not say in his Certificate Ex-D that the Certificate holder was under his treatment as an indoor patient. The doctor D.W. 1 states in cross-examination : "I had not noted any identification marks in the certificate Ex-D granted by me and because he remained as an indoor patient for 10 days in the hospital. I remember his face and therefore could identify him to-day (that is 8-10-1969 after lapse of almost 2 years by then though he had been transferred to Dhenkanal and in the meantime he had no occasion to see Bankanidhi Jali). I remember his face and therefore could identify him to-day (that is 8-10-1969 after lapse of almost 2 years by then though he had been transferred to Dhenkanal and in the meantime he had no occasion to see Bankanidhi Jali). x x x x x On 26-12-1967 this patient wanted a certificate from me without saying the purpose for which he required the certificate x x x x x I do not remember if I was examined by P.W.22 x x x x x I stated before P.W.22 that I do not know who was that Bankanidhi Jena nor can I identify since patients come and go getting treatment, (volunteers) as Bankanidhi Jena was not produced before me, when the I.O. examined me. It is not a fact that accused Bankanidhi Jali is not the same person as Banknidhi Jena, as mentioned in Ext-A or A/1 and is also not the same person as Bankanidhi Jani as mentioned in Ext-B to D, and that accused Bankanidhi Jali was never an indoor patient in our hospital x x x x x Ex-A also relates to Bankanidhi Jani of the said village but no patient named Bankanidhi Jali of that village was an indoor patient in our hospital from 1-10-1967 to 12-10-1967." Padmanav Das, Court Witness no. 1 states in chief: "I can not say if the name of Banknidhi Jani or Jena appears in the Out-door register of Banpur Dispensary. I cannot say if Bankanidhi Jani is not the same person as Bankanidhi Jena nor can I say if no such person resides at Balabhadrapur." The learned lower Court has rightly observed that there was no special reason for the doctor P.W.1 to identify the accused after 2 years when he was at another station and had no opportunity of seeing him again. In normal course it is not possible for him to identify the said Bankanidhi and that was his statement before the I.O. in an unguarded moment coming out of his lips which he endeavoured to cover up by a voluntary statement. Besides, in this case, out of only 16 persons, who were under trial, there were 2 accused persons of the same name as Ananda (accused 3 and 16) and 2 persons of the same name as Hadibandhu (accused 2 and 7). Besides, in this case, out of only 16 persons, who were under trial, there were 2 accused persons of the same name as Ananda (accused 3 and 16) and 2 persons of the same name as Hadibandhu (accused 2 and 7). In view of the above that the documentary evidence is discrepant in that the surname is different and that D.W. 1 is obviously an over enthusiastic witness, we disbelieve the plea of alibi. We have no doubt that Ex-D is a fake certificate granted by D.W. 1. D.w. 1 is not before us and so we purposely refrain from making any caustic remarks here and now to his prejudice. A fool-proof alibi is no doubt the most effective answer to a charge ; but such an invulnerable defence is seldom readily available. The reason is, if the prosecution is a got-up story, it would not be ordinarily so silly as to include a person whose complicity in the crime would be an impossibility. Again, if it is true, a false plea of alibi is a very dangerous plea-not un-often taken in keenly contested cases born of party faction to falsify the entire prosecution case by all means, fair or foul. But such got-up pleas of alibi, however ingeniously made, can hardly stand the fire of cross-examination by an astute criminal lawyer, or willy enough to escape the scepticism of an alert Judge. The result is when this alibi, which is likened to a 'bubble' is successfully pricked, it rebounds on him who has taken it which while smashing his defence strengthens the prosecution. 16. From the aforesaid discussions our findings on the evidence available are that the two appellants are liable under section 324, Indian Penal Code. Their conviction under section 302/149, 302/34 and 148, Indian Penal Code are set aside. While convicting each of them under section 324, Indian Penal Code, we sentence each to undergo R.I. for 2? years. Appellant Hadibandhu Jali now on bail is to surrender forthwith or be rearrested to serve the unexpired period of imprisonment. With these modifications in the conviction and sentence, the appeal is dismissed. R.N. Misra, J. - I agree. Final Result : Dismissed