JUDGMENT : K.B. Panda, J. - Appellant Ganapati Palai stands convicted u/s 302, Indian Penal Code and sentenced to rigorous imprisonment for life on the allegation of having intentionally caused the death of his wife. Paka Dei on 26-6-1971 at about 4 p.m. by assaulting her first with on Amari stick and then the handle of a gainti. 2. The deceased was about 22 years of age. The Appellant is 50 years old. They had married about six years before the occurrence. On the date of occurrence, it is alleged that the Appellant had asked the deceased to feed the cattle and remove the thorns which she failed to do. This annoyed the Appellant. Consequently he, with a twig of a green fence called Amari, is said to have given 7 to 8 strokes to the deceased. The deceased raised on alarm saying. ?I am dying, I am dying?. This attracted the notice of some of the neighbours such as p.ws. 2, 3, 4 and 5 and some others who have not been examined. Further the case is that the brother of the Appellant intervened and separated the wife but yet the Appellant not being satisfied brought out a gainti from the nearby cow shed, snatched away his wife and made her flat on the ground and thereafter gave push blows on her belly, chest and face. In consequence of this assault, she vomited blood. The Appellant thereafter removed her inside his house where she died. He then gave out that his wife died of epileptic stroke. Some of the villagers including the Sarpanch assembled, discussed over the matter and deputed the Grama Rakshi (p.w. D to lodge information who did-so at the Soro Police Station (Ext. 1), on the morning of 27-6-1971. P.w. 8 the Officer-in-charge came to the spot, held inquest over the dead body and sent it for post mortem examination and finally submitted charge-sheet against the Appellant u/s 302, Indian Penal Code. 3. The plea of the Appellant was that, his wife the deceased was a victim,of epileptic fits and that on the alleged date while she was sleeping on a cot got fits and fell down from it over a pile of wood and while struggling got injured and expired. 4. In the Sessions Court, ten witnesses were examined for the prosecution, but none for the defence. 4. In the Sessions Court, ten witnesses were examined for the prosecution, but none for the defence. The learned lower Court relying on the evidence of the eye-witnesses such as p.ws. 2, 3, 4 and 5 together with the medical evidence and circumstantial evidence convicted the Appellant as aforesaid. 5. Mr. Ashok Das, learned Counsel for the Appellant attacked the conviction and sentence on the following grounds: (1) That it is based on the evidence of witnesses who are interested; (2) that independent witnesses have been with-held; (3) that the medical evidence is inconsistent with the prosecution case; and (4) that the Sarpanch who was very much interested in the prosecution of the Appellant and is behind this has set up this false case. 6. Regard being had to the prosecution case and the defence, the cause and the nature of the injuries need be ascertained. The doctor p.w. 7 who held the post-mortem examination on 28-6-1971 found the following external injuries: (1) Ecchymosis 4" ? 3" on the liver area. (2) Ecchymosis 3" ? 3" on the splinic area, On opening he found that the liver was ruptured at its front 3" ? I? ? 1? with perfuse bleeding. The spleen was ruptured 2? x ?? ? ?? with bleeding. The abdominal cavity was filled with half pound blood dot. In the opinion of the doctor, the death was due to shock and haemorrhage on account of violence on the abdomen. According to him, death had occurred about 48 hours before the post-mortem examination (Ext. 4). Certain queries were made to him and he opined than with the handle of the gainti M.O. I such injuries are possible. In cross-examination he has stated that he did not notice any other external injuries that what he had stated as above, nor did he find any external injury on chest,back and face. To a suggestion from the defence he admitted that if the handle of the gainti M.O. I was used from a height of three feet, and strokes given on the chest, there would be ecchymosis. He also admitted that there would be abrasion in the handle would be rough. He qualified it further saying that there would be no laceration if thrusts are given in the chest area because of the soft bones in the chest operating as a cushion. He also admitted that there would be abrasion in the handle would be rough. He qualified it further saying that there would be no laceration if thrusts are given in the chest area because of the soft bones in the chest operating as a cushion. In further cross-examination he stated that he did not notice any abnormality in the spleen or the liver and were it so he must have noted the same. To the defence suggestion he admitted that if on epileptic patient falls on a stone rupture of the present kind is also possible. 7. From the evidence of the doctor, there is no denying the fact that the deceased met her end on account of rupture of the spleen and the liver. The point for consideration therefore, is whether the deceased received them as the prosecution puts it up or as put up by the defence. 8. The eye-witnesses to the occurrence are p.ws. 2, 3, 4 and 5 Admittedly they are co-villagers and neighbours. p.w. 2 is none but the brother?s wife of the Appellant. She had implicated the accused and had supported the prosecution, but turned hostile in the Sessions Court and so was permitted to be cross-examined by the prosecution. It is clear that in the committing Court she had supported the prosecution. Unfortunately the prosecution had not tendered her evidence in the Sessions Court and as such we are unable to rely, on the details thereof. Since she has gone back on her statements her evidence can be safely brushed aside. 9. p.w. 3 is a student of class X aged about 18 years. He states how standing behind the fence be had seen the Appellant first assaulting the deceased with Amari stick and thereafter with the handle of a gainti. His evidence was commented upon as he had admitted in cross-examination that he had hostility with the Appellant for certain landed property for which he is not In speaking terms with him. 10. p.ws. 4 and 5 are the wife and daughter respectively of p.w. 6. The evidence of p.ws. His evidence was commented upon as he had admitted in cross-examination that he had hostility with the Appellant for certain landed property for which he is not In speaking terms with him. 10. p.ws. 4 and 5 are the wife and daughter respectively of p.w. 6. The evidence of p.ws. 4 and 5 run on the same line as deposed to by p.w. 3 in that the Appellant first assaulted the deceased with the twig of on Amari plant (a kind of green fence) and thereafter the Appellant assaulted her with the handle of a gainti giving pushes near about the chest, face and belly. Nothing has been elicited from p.w. 4 as to why she would falsely implicate the Appellant. p.w. 5 her daughter has admitted in cross-examination that her father; that is, p.w. 6 has certain hostility with the Appellant because of some land dispute. 11. p.w. 6 is a seizure witness and his evidence is to the effect that the gainti in question was given recovery by the Appellant?s brother from a tank. 12. Mr. Das?s main contention is that the evidence of these eye-witnesses in view of their admitted hostility with the Appellant should not be relied upon. True, hostility is a ground which should weigh much in the consideration of the Court while assessing their evidence. But it only gives the Court a caution that their evidence should be scrutinised more thoroughly. It does not lay down a general proposition that for hostility, all evidence tendered by such witnesses should be jettisoned on that account alone even if it be convincing and consistent with the general trend of the case. Virtually, therefore, the question that boils down to the fact how far the evidence of these three witnesses can be accepted. The occurrence in this case took-place during day-light and admittedly prosecution witnesses are co-villagers and neighbours. After giving our anxious consideration to the pros and cons of the matter we are unable to hold that their evidence is such and the hostility is so tense that they have perjured themselves and have propped up a false case. Their evidence is consistent with the medical evidence in that there was application of force on the deceased at the region of the belly. As will be discussed hereafter their evidence is also quite consistent with the circumstantial evidence of the case. Their evidence is consistent with the medical evidence in that there was application of force on the deceased at the region of the belly. As will be discussed hereafter their evidence is also quite consistent with the circumstantial evidence of the case. As such we are unable to agree with Mr. Das that their evidence should be thrown out as incredible. 13. The next point raised by Mr. Das that independent witnesses have not been examined in this case will not detain us much. Some witnesses have been examined, but they turned hostile in the committing Court and as such the prosecution did not think it wise to get them examined in the Court of Sessions. There is no obligation on the prosecution to examine the whole array of eye-witnesses even though they do not support the prosecution case. Besides, as is clear in the instant case, the brother?s wife of the Appellant had turned hostile. The brother is not supposed to help the prosecution. Some, of the witnesses to the occurrence referred to by these prosecution witnesses were examined by the Police. They supported the prosecution but went back on their statements before the committing Court. In this background, the comment that the independent witnesses have been withheld is hardly tenable. 14. Coming to the third point raised by Mr. Das that the medical evidence is inconsistent with the prosecution case we do not think it is correct. Here the prosecution brings the case of assault on the abdomen resulting in a rupture of the spleen and the liver causing the death of the deceased. It IS not a case of assault with a twig, u/s 323, Indian Penal Code. True, that as the first phase of the incident. There might be several circumstances in which the strokes given with the twig of Amari plant may or may not be detectable at the time of post-mortem examination. One of the conditions is the complexion of the deceased another is the wearing apparel of the deceased, thirdly the impact of the blow and fourthly the lapse of time before such examination and many other factors. There is no evidence that the Amari twig was quite heavy and strong so as to leave marks of assault with it. According to the doctor at the time of post-mortem examination the body had become decomposed and rigamortis had vanished. There is no evidence that the Amari twig was quite heavy and strong so as to leave marks of assault with it. According to the doctor at the time of post-mortem examination the body had become decomposed and rigamortis had vanished. Besides a young lady as she was aged about 22 years, it is quite reasonable to hold that she had not become hare-bodied when she received the strokes. Be that as it may, that aspect of the case need not engage our attention in view of the positive medical evidence that the deceased died of the rupture of the spleen and the liver due to violence on that region of the body. Besides the defence case is also not far from it. It is only the manner in which she received the injuries that makes all the difference. 15. In this context, the defence theory need be examined. In the Section 342, Code of Criminal Procedure examination the Appellant has stated that the deceased was a victim of epileptic fits before. Were it so, then the neighbours and the parents of the deceased must have been very much aware of it. Possibly there might have been some treatment also in that regard. But excepting this aspect appearing the 342, Code of Criminal Procedure examination of the Appellant and a stray admission of the hostile witness p.w. 2, there is absolutely nothing on the record to support this plea. That apart, it is common sense that persons suffering from epileptic fits are subject to spasms at the time they get the attack. That is also the medical evidence and the statement of the Appellant when he states that she fell from the cot on the maggots below and struggled by beating her hands and legs. The time was unusual for one to go to sleep. Besides, the height of a cot is not so much that one would receive violent shocks in different parts of the body if one falls from it. Again, there is no evidence that in the bed-room of the Appellant he had collected fuel in a projecting manner just below the cot. The evidence of the Investigation Officer is just the contrary. The sketch map shows that there are two costs, but not in the foam where the dead body was lying. Again, there is no evidence that in the bed-room of the Appellant he had collected fuel in a projecting manner just below the cot. The evidence of the Investigation Officer is just the contrary. The sketch map shows that there are two costs, but not in the foam where the dead body was lying. Further when one gets the fits, the fits become clenched and with the movements of the hands and legs one is likely to have scratches and bruises on other parts of the body. But apparently there is nothing. Another feature which engages our attention is that whether the Appellant was present when his wife received the alleged attack. There was no other inmate in the house than the accused and the deceased. In case he was, he must have taken care of his wife not to receive injuries after falling on the fuel. If he was nut there, it was impossible for him to state how and when she had fallen on the fuel. Before her death, he had not called any of his neighbours nor had spoken out that his wife bad fallen on the fuel from the cot getting a spasm. Immediately, if it were true, the deceased fell down from the cot, she would not have died without a struggle. But the evidence is nil in that respect. Thus, in view of this circumstantial evidence, namely, absence of any feature to support the plea of the defence, it appears to be on after thought. 16. On a final analysis, therefore, relying on the evidence of p.ws. 3, 4 and 5; the medical evidence and (be circumstantial evidence in the case, together with the absurdity of the defence plea, we would hold that the prosecution has established the case as against the Appellant beyond all reasonable doubt. 17. Before closing this judgment, we are constrained to observe that there are several important features in this case which should have been brought on record. Unfortunately, due to lack of keenness and circumspection on the part of the lawyer in charge of the prosecution in the lower Court, that has not been done. 17. Before closing this judgment, we are constrained to observe that there are several important features in this case which should have been brought on record. Unfortunately, due to lack of keenness and circumspection on the part of the lawyer in charge of the prosecution in the lower Court, that has not been done. As already indicated the evidence of p.w. 2 who was declared hostile in the Sessions Court but had supported, the prosecution case before the committing Court, has not been tendered u/s 288, Code of Criminal Procedure (old) Some of the prosecution witnesses who were examined in the committing Court and are eye-witnesses should have been at least tendered for cross-examination in the Sessions Court. Evidently that has also not been done. 18. In the result, the appeal stands dismissed conviction and sentence of the Appellant are upheld. P.K. Mohanti, J. 19. I agree. Final Result : Dismissed