JUDGMENT : K.B. Panda, J. - The two Appellants, Jamini Ranjan Parida (Appellant No. 1) and Pravakar Parida (Appellant No. 2) have been convicted under Sections 324 and 323, Indian Penal Code, and consequently sentenced to six months? R.I. and to pay a fine of Rs. 100/-, in default to undergo R.I. for a fort-night respectively by the Additional Sessions Judge. Dhenkanal on 30-9-1969. 2. The present appeal arises out of Sessions Trial No. 24 of 1969 which is a counter case to Sessions Trial No. 14 of 1969 disposed of by the same Judge on the same day. The Appellants in this case are two brothers. So far as this case is concerned the prosecution alleges that on 31-8-1968 at about 8 A.M. Appellant No. 1 and his deceased brother Krushna while grazing cattle, allowed them to stray and damage the mung crop of the informant, p.w. 1. due to previous hostility. When the informant whose house was close to the field alleged to have been damaged by the cattle protested the deceased Krushna challenged the informant to come near him and Appellant No. 1 advised his brother Krushna to cut him to pieces. At this, the informant caused his brother Bhagaban and when both the brothers, i.e., p.ws. 1 and 2 attempted to drive the cattle to kine house, Appellant Jamini obstructed and shot two arrows at p.w. 2, Bhagaban. The first arrow missed Bhagaban but the second arrow pierced near the left eye-brow of p.w. 2. At that time Bhagaban?s mother Kuntala p.w. 6 is said to be going to take her bath in a tank and so she came running to Bhagaban and caught hold of him. Appellant No. 2 is said to have appeared at that time at the scene being called by Appellant No. 1 and dealt a blow on the head of Kuntala, p.w. 6 in consequence of which she received a bleeding injury. While p.w. 1 came to the rescue of his mother, Appellant No. 2 dealt two lathi blows on the right fore-arm of the informant and deceased Krushna who was armed with a Tabala dealt a blow with it on the head of the informant. While p.w. 1 came to the rescue of his mother, Appellant No. 2 dealt two lathi blows on the right fore-arm of the informant and deceased Krushna who was armed with a Tabala dealt a blow with it on the head of the informant. When Krushna, the deceased was going to give a second blow, the prosecution case is that the informant to save his life aimed a blow with his tangia at the hands of Krushna but as Krushna receded, the tangia fell on the shoulder of Krushna causing his death. The first information in this case, Ext. 1 was lodged by the informant at Angul P.S. and a case under Sections 323 and 324, Indian Penal Code, was registered against the accused persons. The charge-sheet was submitted under Sections 326/323/34, Indian Penal Code. However, in the Court of Sessions Appellant Jamini was charged u/s 307, Indian Penal Code and Appellant Pravakar u/s 323, Indian Penal Code but convicted as set out above. 3. The defence which is the case of the prosecution in the counter case, is that on the alleged date and time Krushna Parida, the deceased and Appellant Jamini were proceeding with 30 heads of cattle for grazing. While they passed through Balijori Nala in front of the cow-shed of the informant p.w. 1, his three brothers and their wives and mother of Banshi, Bhagaban, Gunanidhi and Chandramani, i.e., Kuntala p.w. 6 picked up quarrel with them falsely alleging that the cattle had damaged their mung crop and attacked them with various weapons. Banshi, p.w. 1 is said to have been armed with a tangia and so too Gunanidhi. Kuntala was armed with bow and arrow and Bhagaban and Chandramani with lath is. Gunanidhi is said to have pelted stones at Appellant Jamini, one of which hit his right leg and Bhagaban p. w. 2 dealt a lathi blow on the bead of Appellant Jamini. While Krushna brother of the two accused who died in the incident) came to the rescue of Appellant Jamini, the informant with his family members surrounded Krushna and Gunanidhi at the instigation of the informant dealt a cut blow on the right side of the neck of Krushna as a result of which he died at the spot. The two Appellants deny to have assaulted any body of the informant?s party. 4. The two Appellants deny to have assaulted any body of the informant?s party. 4. The learned Additional Sessions Judge on a perusal of the evidence came to the finding that there was no intentional damage caused to the mung crop by letting into it 30 heads of cattle, but it might have been that one or two had strayed into it. Due to previous hostility between the two families unnecessarily the informant?s party took offence and both the parties got ready for a free fight. In the trial of strength both the parties received injuries but unfortunately one Krushna, brother of the two Appellants succumbed to the injury on his neck. Thus, he held both the parties responsible for the offence they have committed in the affray and convicted them accordingly. Admittedly, there are injuries on both sides. 5. Mr. Das, the learned Counsel appearing on behalf of the Appellants contended that Appellant No. 1 being aged 20, his case should be considered leniently and he should be let off with a warning under the Probation of Offenders Act. 6. Though the Appellants deny to have inflicted any injury on the informant?s party, it is evident from the evidence of the doctor p.w. 11 who examined the injured persons, i.e., p.ws. 1, 2 and 6 as per Police requisition. The injuries found on Banshidhar, p.w. 1 were: (i) One incised wound 1?? ? 1/6" ? bone deep situated on the right to the mid-line of the head. (ii) One bruise with inflammation 2" ? 1?? on the right for-arm. (iii) One bruise with inflammation situated on the right fore-arm. (iv) One inflammatory swelling of the left index finger at its middle. According to the doctor injury No. 1 was grievous and the rest were simple and injury No. 1 might have been caused by a sharp cutting weapon such as an axe and others by a hard and blunt weapon like a lathi. The injuries on Bhagaban Parida p.w. 2 were as follows: (i) One punctured wound ?? ? ?? affecting the skin muscle and bone situated on the upper outer aspect of the left eye cutting the outer part of the frontal bone at that particular spot. The injury was bleeding. eye-lids were bruised and the eye boll was congested. It was grievous in nature and might have been caused by a sharp cutting weapon such as an arrow. affecting the skin muscle and bone situated on the upper outer aspect of the left eye cutting the outer part of the frontal bone at that particular spot. The injury was bleeding. eye-lids were bruised and the eye boll was congested. It was grievous in nature and might have been caused by a sharp cutting weapon such as an arrow. The duration of the injury was 12 hours by the time of his examination on 31-8-1968 at 2.30 P.M. The arrow (M.O. III) that was seized was shown to the doctor and he opines that though the injury on the left-eye-brow was grievous it was not fatal. The injury of p.w. 6 was a lacerated wound 2" ? ?? x scalp deep situated over the left parietal eminence in a slightly curved manner which might be caused by a hard and blunt weapon such as a lathi. 7. So far as the injuries on the two Appellants are concerned. p.w. 11 examined Appellant No. 1 at about noon on 1-9-1968 and found three abrasions one bruise and a superficial abrasion on the right vault of the head. The injuries on Appellant No. 1 were simple in nature and injuries Nos. 1, 2 and 4 were likely to have been caused by coming into contact with a rough substance and injury No. 3 by a hard and blunt object such as a lathi. From this it would appear that Appellant No. 1 had injuries his brother Krushna was killed in the encounter and on the opposite side p.ws. 1, 2 and 6 had been injured. 8. In a case of this nature, as has been rightly held by the learned Additional Sessions Judge, it was to be ascertained as to who was the aggressor and if any party had the right of private defence either of person or of property. The learned Court below has held on evidence that the prosecution case that Appellant No. 1 and his deceased brother allowed 30 to 40 heads of cattle to damage the mung crop, is untrue. He has relied upon the evidence of the I.O. who soon after visited the spot and did not find any hoof marks of so many cattle in the alleged damaged field. He has relied upon the evidence of the I.O. who soon after visited the spot and did not find any hoof marks of so many cattle in the alleged damaged field. The hoof marks being a few, he held that it was just likely that one or two cattle had strayed into the field and not that the Appellant Jamini and his deceased brother purposely let loose the cattle to damage the mung crop of the informant?s family. I see no reason to differ from this finding. It is in evidence that the informant?s house was close by. It is therefore, not unnatural that even by a slight damage they would raise a protest and much more so when admittedly the feeling between the two families was very much strained. The evidence is that as the informant protested, the deceased challenged him to come near and at that p.w. 1 invited his brother, p.w. 2. Thus, the other two brothers, their wives and mother of p.ws. 1 to 4 (Kuntala) also got ready for the quarrel. Further, the evidence regarding assault is borne out by p.ws. 1, 2, 3 and 6 but out of them only p.w. 3 is an outsider and p.ws. 1 and 2 are ?brothers and p.w. 6 is their mother. The learned lower Court has rightly discarded the evidence of p.w. 3 as not an eye witness to the occurrence, for he was examined about 20 days after the occurrence. This p.w. 3 is said to have been taken to the I.O. by Gunanidhi, brother-in-law of the informant p.w. 1 who is an accused in the counter case. This p.w. 3 never disclosed about his being an eye witness before his brother or his brother-in-law, p.w. 1. The learned lower Court has rightly discarded his evidence which need not be discussed further. Therefore, the other three witnesses, namely, p.ws. 1, 2 and 6 are partisan witnesses who have received injuries and are accused in the counter case. The fact that they had injuries on their persons speaks of their complicity in the encounter. Admittedly, Krushna, brother of Appellant No. 1 succumbed to his injury received on the right side of the neck. There is no dispute that Appellant No. 1 and deceased Krushna were at the alleged time driving about 30 heads of cattle and p.ws. 1, 2 and 6 protested alleging damage to their crop. Admittedly, Krushna, brother of Appellant No. 1 succumbed to his injury received on the right side of the neck. There is no dispute that Appellant No. 1 and deceased Krushna were at the alleged time driving about 30 heads of cattle and p.ws. 1, 2 and 6 protested alleging damage to their crop. In this setting, the evidence of p.ws. 1, 2 and 6 has to be scrutinised with greater caution as exaggeration and embellishment in their evidence are very natural. That both the parties were armed is also borne out by the nature of the injuries inflicted on either side. As already indicated, I am in agreement with the learned Additional Session Judge that both parties got prepared for a trial of strength. Appellant No. 1 in this case at the relevant time was armed with a bow and arrow. The punctured wound on p.w. 2 over the outer aspect of the left eye is attributed to the second arrow released by Appellant No. 1 and there is nothing to disbelieve the same. Appellant No. 2 evidently was not at the scene from the beginning. His plea was that he was a college student who later on got information while proceeding to Angul about the occurrence and came to the spot. According to the prosecution, he is alleged to have given a lathi blow on the head of p.w. 6, Kuntala and two lathi blows on the right fore-arm of p.w. 1. The other three partisan witnesses, namely, p.ws. 2 and 6 involved Appellant No. 2 though from the trend of the case it was only Appellant No. 1 and his deceased brother Krushna who were tending cattle. It is not challenged that Appellant No. 2 is college student. Why he would join in tending cattle or at what point of time he appeared at the scene of encounter is not clear, Evidence of the partisan witnesses when that is inconsistent with the broad probability cannot be relied upon and as such I would give the benefit of doubt to Appellant No. 2 and acquit him of the charge u/s 323, Indian Penal Code. Accordingly, his conviction and sentence thereunder is set aside. The fine, if paid, be refunded. 9. Accordingly, his conviction and sentence thereunder is set aside. The fine, if paid, be refunded. 9. So far as Appellant No. 1 is concerned, the learned Additional Sessions Judge has committed an error in not convicting him u/s 307, Indian Penal Code, in which he had stood charged. Evidently, his motive was to kill p.w. 2 which may be born of the fatal assault on his brother in the process he caused hurt on p.w. 2. His conviction u/s 307, Indian Penal Code, would have been very much proper. But since there is no conviction thereunder and the Government has not come up in appeal, I would only say that he is lucky to be let off with rigorous imprisonment of six months. I see no reason to interfere and as such his appeal is dismissed. He is to surrender to undergo the unexpired period of imprisonment. 10. In the result, the appeal of Appellant No. 1 is dismissed and that of Appellant No. 2 is allowed.