JUDGMENT : B.N. Misra, J. - The six Appellants, Naran Pradhan, Bhaskar Rautray, Nanda Rautray, Karunakar Rautray, Lingaraj Bhol and Surendra Jena have been convicted u/s 302 read with Section 34, I.P.C. and sentenced to imprisonment for life. Appellants Nanda Rautrayand Naran Pradhan have been further convicted u/s 341 read with Section 34, I.P.C., but no separate sentence has been passed thereunder. The thirty other accused persons who were tried along with the Appellants have been acquitted. 2. The prosecution case may be briefly stated. Deceased Banamali Das was the Mahant of Kanas Math situated in village Kanas. P.S. Satyabadi, District Puri. Large parcels of agricultural lands of the Math were under cultivation of bhag-tenants and many of them are the accused persons in this case. The Mahant had instituted several O.L.R. cases for eviction of these bhag tenants and also initiated criminal proceedings against many of them. Some of these cases resulted in the eviction of the bhag-tenants and on account of that the accused persons bore a grudge against the Mahant. It is alleged that in the evening on 5-3-1979 a meeting was held in the fuel godown of Appellants Bhaskar and Karunakar, the two sons of Baraju Rautray. Many of the accused persons attended the said meeting and Appellant Surendra took a leading part in the discussions. It was resolved at the meeting that Mahant Banamali Das should be killed. Later, about midnight, some of the accused persons again met in the Bhagabat Ghar of village Kanas and conspired to kill the Mahant. On 6-3-1979 about 8.30 a.m. Mahant Banamali Das left his Math for Pari on his motor-cycle. He was accompanied by P.W. 1, his brother's son. The motor-cycle was driven by the Mahant and P.W. 1 sat on the rear seat. When they approached the house of Appellant Naran, close to the Bhagabat Ghar, they found that Naran, Nanda and Karunakar has placed in front bullock cart transversely across the road thereby completely blocking the passage. On account of this blockade the Mahant had to stop his motor-cycle. No one paid any heed to his request to remove the bullock cart. At that time Appellant Bhaskar and some other accused persons came out of Naran's house armed with lathis. Appellant Lingaraj Bhol also arrived with a pointed weapon. One of the accused persons gave a lathi blow on the right hand of the Mahant. No one paid any heed to his request to remove the bullock cart. At that time Appellant Bhaskar and some other accused persons came out of Naran's house armed with lathis. Appellant Lingaraj Bhol also arrived with a pointed weapon. One of the accused persons gave a lathi blow on the right hand of the Mahant. P.W. 1 left the motor-cycle and ran a way some distance up to the house of P.W. 9. After the assault on him the Mahant left his motor-cycle near the bullock cart and ran in the same direction being chased by the accused persons including Appellants Naran, Karunakar, Nanda. Bhaskar and Lingaraj. When the Mahant reached near the house of P.W. 9, other accused persons arrived at the spot holding lathis. All of them surrounded the Mahant. Bhaskar gave a lathi blow on the head of the Mahant. Accused Bhramar Bhol (acquitted) dealt a blow on the back of the Mahant with a Gajabadi. Accused Dhanu Bhol (acquitted) assaulted the Mahant with a Khanati. Lingaraj Bhol pierced the Tenta which he was holding into the left leg of the Mahant. After this the Mahant sat down. Surendra who was standing near the house ot Naran called out that there was no point in waiting any further and that the Mahant should be finished Thereafter Karunakar gave two successive blows with a Katari on the head of the Mahant as a result of which the Mahant fell down at the spot. The accused persons and the Appellants then left the spot. The Mahant was removed to Kanas hospital. P.W. 14, the doctor attached to Kanas hospital. examined the Mahant and found him to be dead. P.W. 1 then went to Kanas out Post and verbally reported the occurrence to P.W. 19, the A.S.I. attached to Kanas Out-Post. P.W. 19 reduced the report of P.W. 1 into writing and thereafter P.W. 1 signed the report. Ext. 1/1 is the F.I.R. P.W. 19 sent Ext. 1/1 through a special- messenger to the Officer-in-charge of Satyabadi P.S. for taking further action in the matter. The present case was registered at Satyabadi P.S. P.W. 20 the Circle Inspector had in the meanwhile been informed about the occurrence and on arrival at Kanas hospital about 10.20 a.m., he took up investigation of the case. 1/1 through a special- messenger to the Officer-in-charge of Satyabadi P.S. for taking further action in the matter. The present case was registered at Satyabadi P.S. P.W. 20 the Circle Inspector had in the meanwhile been informed about the occurrence and on arrival at Kanas hospital about 10.20 a.m., he took up investigation of the case. After completion of investigation P.W. 20 submitted charge-sheet against the six Appellants and the other thirty accused persons. All were in due course committed to the Court of Sessions. 3. All the accused persons were charged under Sections 120B, is and Sections 341/302 read with Section 149, I.P.C. and alternatively, under Sections 341/302 read with Section 34, I.P.C. At the trial twenty witnesses were examined on behalf of the prosecution and none on behalf of the defence. The defence plea is one of denial. Previous enmity is admitted and it is suggested that on account of previous enmity the relations and friends of the deceased have falsely implicated the Appellants and the accused persons. It is the further defence plea that the injuries sustained by the deceased were not on account of any assault on him, but were caused by an accidental fall from his motor-cycle. The learned Sessions Judge who tried the case found the six Appellants guilty u/s 302 read with Section 34, I.P.C., Appellants Naran and Nanda also guilty u/s 341 read with Section 34, I.P.C. convicted and sentenced them as noted above. The remaining thirty accused person were found not guilty and acquitted. 4. P.W. 18 the doctor who had conducted post-mortem examination on the dead body of deceased Banamali on police requisition on 7-3-1979. He had found the following external Injuries: (i) One lacerated wound 3" x 2" x bone deep over frontal portion of the skull with chip fracture in the middle of the frontal bone size 2'" x 3". (ii) Lacerated injury 1" x 1-1/2" bone deep over the frontal portion of the skull on the left side close to the item No. 1 situated 1-1/2" laterally. (iii) Abrasion 1" x 1/2" x superficial skin deep (healed up) over the right shoulder joint. (iv) Abrasion 2" x 1'" over right scapular region in back. (v) Abrasion 1" x 1/2" horizontal over the back of the elbow joint. (vi) One punctured wound circular in shape nearly 1/2" in diameter X 2" deep over the middle right calf. (iii) Abrasion 1" x 1/2" x superficial skin deep (healed up) over the right shoulder joint. (iv) Abrasion 2" x 1'" over right scapular region in back. (v) Abrasion 1" x 1/2" horizontal over the back of the elbow joint. (vi) One punctured wound circular in shape nearly 1/2" in diameter X 2" deep over the middle right calf. On dissection the following internal injuries were found: (i) The membrane of the skull was in tact except haemorrhagic. In other words blood had accumulated over the membrane. (ii) A small vessel of the membrane was lacerated. P.W. 18 has stated that death was due to cerebral haemorrhage and circulatory failure. The external head injuries were sufficient in the ordinary course of nature to cause death and the cumulative effect of external injuries 1 and 2 was the cause of death, though injury No. (i) by itself might have been sufficient to cause death. The injuries were ante-mortem in nature and death must have occurred during 48 hours prior to the post mortem examination. The head injuries could have been caused with hard and blunt weapon like lathi or blunt side of a Katari. Injury No. (vi) must have been caused with a pointed weapon like Tenta. Ext. 14 is the post-mortem report. The doctor has further stated that injury No. (vi) was on the right calf of the dead body and he was quite sure a bout it. The doctor has also said that the deceased must have died instantaneously. In cross-examination the doctor has stated that the injuries on the head could not have been caused with the sharp side of the Katari M.O. I and injury No. (i) could not have been caused even with its blunt side. To die defence suggestion that the injuries on the deceased were caused-by accident, the doctor has stated that he could not overrule the possibility of injury Nos. (i) to (v) having been caused by fall from motor-cycle and that injury No. (vi) could also be caused by a peg attached to the earth and meant for tying cattle. The medical evidence clearly establishes that the deceased died on account of the injuries received by him which were sufficient: in the ordinary course of nature to cause death. 5. The prosecution case comprises of two parts. The medical evidence clearly establishes that the deceased died on account of the injuries received by him which were sufficient: in the ordinary course of nature to cause death. 5. The prosecution case comprises of two parts. First is the criminal conspiracy at the two meetings held on the night of 5-3-1979 and the second part comprises of the occurrence about 8. 30 a. m. on 6-3-1979, beginning with the placing of a barricade on the road and blocking the passage of the Mahant, followed by rioting and culminating in the murder of the Mahant. As already noted the learned Sessions Judge has held that the charges u/s 120B, I.P.C. for conspiracy, Section 148, I.P.C. for rioting and charges under Sections 341 and 302 read with Section 149, I.P.C. have not been established. The conviction is for offences u/s 302 read with Section 34, I.P.C. and Section 341 read with Section 34, I.P.C. P.Ws. 1 to 5 and 6 are the eye-witnesses to the occurrence. Their evidence with regard to the charges under Sections 302 and 341, I.P.C. may now be discussed. 6. P.W. 1 is the nephew of the deceased. He has stated that on 6-3-1979 about 8.30 a.m. he left the Math along with the deceased. He was sitting behind the deceased who was driving his motor-cycle. When they entered Chatiapada Sahi, they found that Naran, Nanda and Karunakar placed a bullock cart transversely across the road in front of the house of Appellant Naran and as a result their passage was completely blocked. The Bhagabat Ghar is situated near the house of Appellant Naran. The width the road at that place is about 15 feet and the length of the bullock cart which was placed transversely across the road would also be 15 to 16 feet. Due to this barricade had to stop his motor-cycle. 1 he Mahant requested Naran to remove to bullock cart, but the barricade was not removed. At that time Bhaskar and other accused persons came out of Naran's house armed with lathis. Lingaraj also came out with a Bhali. Out of fear P.W. 1 jumped out of the motorcycle and began to run back towards the Math. After he had gone 10 to 12 feet he found Appellant Nanda and P.W. 8 coming from the opposite side. Lingaraj also came out with a Bhali. Out of fear P.W. 1 jumped out of the motorcycle and began to run back towards the Math. After he had gone 10 to 12 feet he found Appellant Nanda and P.W. 8 coming from the opposite side. P.W. 1 stood near the house of one Kunja Sahu and saw the accused persons coming out being armed with lathis. The Mahant receded being chased by Bhaskar. Lingaraj and others. When the Mahant reached near the house of Indramani Mohapatra, from a distance of about 5 feet. P.W. 1 saw that Bhaskar gave a lathi blow on the head of the Mahant. Lingaraj dealt a blow with his Bhali which pierced the left leg of the Mahant who then sat down. At that time Surendra who was standing near the house of Naran called out that there was no time to wait and that the Mahant should be finished at the earliest. Thereafter Karunakar gave two blows with a Katari on the head of the Mahant as a result of which the Mahant fell down on the ground. P.W. 1 ran to the Math and then returned to the spot from where he carried the Mahant to Kanas hospital. The doctor declared the Mahant to be dead. P.W. 1 next went to Kanas Out-Post and reported the occurrence to the A.S.I. in-charge. His report was reduced into writing by the A.S.I. and P.W. 1 signed the F.I.R. his signature being Ext. 1. P.W. 1 has further stated about the old enmity between the deceased Mahant and his bhag-tenants many of whom are the accused persons. He has also stated that the lathi blow of Bhaskar fell on the left parietal region above the left ear in between the middle of the head and the left ear of the Mahant and that Bhaskar assaulted the Mahant from the back side. P.W. 1 could not say which side of the Katari was used by the Karunakar in assaulting the, ceased on his head, but two successive Katari be given by Karunakar on almost the same place on the middle portion of the head. 7. P.Ws. 2, 3, 4 and 5 e also stated that Naran, Nanda and Karunakar had placed the bullock cart transversely across the road as a result of which the Mahant could not proceed any further. 7. P.Ws. 2, 3, 4 and 5 e also stated that Naran, Nanda and Karunakar had placed the bullock cart transversely across the road as a result of which the Mahant could not proceed any further. P.W. 8 has not stated that Naran, Nanda and Karunakar actually placed the bullock cart on the road. He had said that a bullock cart had been transversely placed across the road and Naran. Nanda and Karunakar were standing near it. It is worthy of note that in the F.I.R. it has not been mentioned that Karunakar was also a party to the placing of the bullock cart across the road. According to the F.I.R., Karunakar came out of Naran Pradhan's house after the blockade of the road by Nanda and Naran. As regards the assault on the Mahant, P.Ws. 2, 3, 4 and 8 have stated that after the Mahant was surrounded by the accused persons and the Appellants, first Bhaskar gave a lathi blow on the head of the Mahant, then Lingaraj pierced the Tenta which he was holding to the left leg of the Mahant as a result of which the Mahant sat down at that place. Surendra next called out that there was no point in waiting and that the Mahant should be finished. Thereafter Karunakar, gave two successive blows on the head of the Mahant with the Katari which he was holding. The Mahant fell flat on the ground and then the Appellants and the accused persons left the spot. It is worthy of note that P.W. 2 had not stated before the I.O. that Bhaskar had assaulted the Mahant with a lathi. P.W. 3 had not stated before the I.O. that Bhaskar had assaulted the Mahant on his head. P.W. 8 had not stated before the I.O., that the lathi blow of Bhaskar had fallen, on the head of the Mahant. P.W. 5 has stated that he had seen Karunakar giving some blows with his Katari which fell on the head of the Mahant. He had not seen Bhaskar and Lingaraj assaulting the Mahant. The evidence of P.Ws. 1 to 5 and 8 forms the basis for conviction of the Appellants. 8. Mr. P.W. 5 has stated that he had seen Karunakar giving some blows with his Katari which fell on the head of the Mahant. He had not seen Bhaskar and Lingaraj assaulting the Mahant. The evidence of P.Ws. 1 to 5 and 8 forms the basis for conviction of the Appellants. 8. Mr. S. Gupta, learned Counsel appearing for the Appellants, has urged that almost all the eye-witnesses are either inimical or interested and their evidence is so full of contradictions and discrepancies that the same should not be relied upon by the Court. Admittedly there was previous enmity between the Mahant and his supporters on one side and the Appellants and the accused persons on the other. P.W. 6 who was declared hostile by the prosecution belongs to village Kanas and was a Bhag-tenant under the deceased Mahant. He has stated that the villagers of Kanas are divided into two groups, one group consists of Arta Bhujabal and other supporters of the Mahant, and the accused persons and the Appellants constitute the other group I. It has also stated that P.Ws. 2, 3 and 8 belong to Arta Bhujabala's group. As already noted P.W. 1 is the nephew of the Mahant. Therefore, P.Ws. 1, 2, 3 and 8 may be said to be interested witnesses inimically deposed towards the Appellants. The learned Government Advocate has urged that the evidence of the eye-witnesses who are Interested or inimical cannot be thrown out merely on that ground, but the same should be scrutinised by the Court with care and caution. In this connection, the learned Government Advocate relies on Piara Singh and Others Vs. State of Punjab wherein it was held that the evidence of interested or inimical witnesses had to be scrutinised with care but could not be rejected merely on the ground of being partisan evidence and that if on a perusal of the evidence the Court was satisfied that the evidence was creditworthy, there was no bar in the Court relying on the said evidence. The correct approach has been indicated in the aforesaid decision. The evidence of P.Ws. 1, 2, 3 and 8 requires careful scrutiny. It may be noted that the stigma of enmity or interestedness cannot be attributed to P.Ws. 4 and 5. P.W. 4's father is a Grama Rakshi and he has denied that he was a servant under the Mahant. The correct approach has been indicated in the aforesaid decision. The evidence of P.Ws. 1, 2, 3 and 8 requires careful scrutiny. It may be noted that the stigma of enmity or interestedness cannot be attributed to P.Ws. 4 and 5. P.W. 4's father is a Grama Rakshi and he has denied that he was a servant under the Mahant. There is nothing in his evidence to indicate that he was either interested In the prosecution or inimical to the Appellants. P.W. 5, a twelve year old boy, was accompanied to the Court of Sessions by P.W. 2 and Arta 'Bhujabala a prior to the date of his deposition in Court, but this cannot lead to the conclusion that he is an interested witness. P.Ws. 4 and 5 must be held to be independent witnesses, According to the learned Counsel for the Appellants the evidence of the eye witnesses should not be given any credit because of discrepancies and contradictions. The discrepancies are noted hereunder. P.W. 2 had not stated before the I.O. that Bhaskar had assaulted the Mahant with a lathi P.W. 3 had not stated before the I.O. that Bhaskar had assaulted the Mahant on his head, and P.W. 8 had not stated before the I.O. that the lathi blow given by Bhaskar had fallen on the head of the Mahant, P.W. 1 stated in Court that Lingaraj had pierced a Bhali into the left leg of the Mahant, but P.Ws. 2 to 4 and 8 have stated that Lingaraj had given that blows with a Tenta. Further. P.W. 1 who had lodged the F.I.R. had not stated therein that Karunakar had joined Naran and Nanda in placing the bullockcart transversely across the road. Because of this omission the learned Sessions Judge has not found Karunakar guilty u/s 341/34, I.P.C. While considering such discrepancies in the evidence of witnesses it would be useful to refer to the observations of the Supreme Court in the following cases. In Ugar Ahir and Others Vs. The State of Bihar it was held. The maxim falsus in uno falsus in omnibus is neither a wind rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a gram of untruth or at any rate exaggerations, embroideries or embellishments. In Ugar Ahir and Others Vs. The State of Bihar it was held. The maxim falsus in uno falsus in omnibus is neither a wind rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a gram of untruth or at any rate exaggerations, embroideries or embellishments. It is therefore, the duty of the Court to scrutinise the evidence carefully and, in terms of the felicitous metaphor, separate the grant from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest. In Laxman and Others Vs. The State of Maharashtra it was observed, "Witnesses cannot be branded as liars in toto and their testimony rejected outright even if parts of their statements are demonstrably incorrect or doubtful. The astute judge can separate the grains of acceptable truth from the chaff of exaggerations and improbabilities which cannot be safely or prudently accepted and acted upon. It is sound common-sense to refuse to apply mechanically in assessing the worth of necessarily imperfect human testimony, the maxim "Palsues in uno falsus in omnibus". In Bhe Ram Vs. State of Haryana it was observed, "The principle of falsus in uno-ialsus in omnibues does not apply to criminal trials and it is the duty of the Court to separate the grain from the chaff instead of rejecting the prosecution case on general grounds." In Bhimrao, Anna Ingawale and Others Vs. State of Maharashtra it was held, it is not unoften that improvements in an earlier version are made at the trial in order to give a boost to the prosecution case, albeit foolishly. But that does not mean that falsity of testimony in one material particular would ruin it from beginning to end. On the other hand the circumstances will be a good reason merely fur the Court to be put on guard and sift the evidence with extraordinary caution and to accept the portions of It which appear fully trustworthy either intrinsically or by reason of corroboration from other trustworthy sources. Sifting the evidence of the eye-witnesses on the basis of the principles enunciated in the aforesaid conclusions it is seen that P.Ws. Sifting the evidence of the eye-witnesses on the basis of the principles enunciated in the aforesaid conclusions it is seen that P.Ws. 1 to 5 are consistent in the statements that the Appellants Naran and Nanda had place the bullock cart transversely across the road blocking the age of the Mahant. As regards Bhaskar's lathi blow on the said of the Mahant, even if the statements of P.Ws. 2, 3 and are not accepted on the ground that they had not stated before the I.O., the statement of P.W. 1 in Court in that regard is fully corroborated, by the evidence of P.W. 4 that Bhaskar had given a lathi blow on the head of the Mahant. As regards the Tenta blow by Lingaraj on the left leg of the Mahant, P.W. 1 has stated that Lingaraj had given the said blow with a Bhali and according to P.W. 2, Bhali and Tenta are two different things. However, apart from the evidence of P.W. 1, the evidence of P.Ws. 2 to 4 and 8 is consistent that Lingaraj had pierced a Tenta into the left leg of the Mahant. P.Ws. 1 to 4 and 8 have all stated that after the Tenta blow by Lingaraj, Surendra called out that there was no point in wading and that the Mahant should be finished. P.Ws. 1 to 5 and 8 have consistently stated that Karunakar then gave two successive blows with Katari which he was holding on the head of the Mahant. P.Ws. 1, 2, 3 and it may be interested witnesses, but their evidence as described above is fully corroborated by the independent witnesses P.Ws. 4 and 5. 9. Learned Counsel appearing for the Appellants has urged that no reliance should be placed on the evidence of P.W. 5 as he is a child witness. In support of this submission reliance has been placed on Ulla Mahapatra Vs. The King Jalwanti Lodhin Vs. The State, and The State of Bihar and Ors. v. Kapil Singh and Anr. 1969 S.C.D. 55. In the first case it was held, "Children of tender age, generally speaking, are not to be regarded as trustworthy whiteness as they can easily repeat glibly a story put into their mind and do not possess the discretion to distinguish between what they have seen and what they have heard. v. Kapil Singh and Anr. 1969 S.C.D. 55. In the first case it was held, "Children of tender age, generally speaking, are not to be regarded as trustworthy whiteness as they can easily repeat glibly a story put into their mind and do not possess the discretion to distinguish between what they have seen and what they have heard. As a matter of prudence therefore, Courts are generally charity of putting absolute reliance on the evidence of a solitary child witness and look for corroboration of the same from other circumstances in the case". In the second case it was held that the evidence of children was notonously dangerous unless immediately available and unless received before any possibility of coaching was eliminated and that there should be closer scrutiny of the evidence of a child witnesses before the same is accepted by a Court of law. In the this case the Supreme Court observed that while a child witness of about 12 years could often be expected to give out a true version because of its innocence, there was always the danger in accepting the evidence of such a witness as under influence, she might have been coached to give out a version by persons who might have influence on her. In the present case a careful scrutiny of the evidence of P.W. 5 does not at all reveal any suspicion of tuition. He has boldly denied the suggestion that he was speaking falsehood in Court. There is no material on the basis of which it can be said that he had been influenced by any person who might have influence on him. His evidence appears natural and straightforward and there is no reason why the same should not be accepted. 10. It has been urged on behalf of the Appellants that the evidence of the eye-witnesses cannot be accepted as it is inconsistent with the medical evidence. In support of this contention reliance is placed on Ram Narain Singh Vs. State of Punjab wherein it was held, where the direct evidence is not supported by the expert evidence, then the evidence is wanting in the most material part of the prosecution case and it would be difficult to convict the accused on the basis of such evidence. In support of this contention reliance is placed on Ram Narain Singh Vs. State of Punjab wherein it was held, where the direct evidence is not supported by the expert evidence, then the evidence is wanting in the most material part of the prosecution case and it would be difficult to convict the accused on the basis of such evidence. It the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence of the ballistic expert, this is a most fundamental defect in the prosecution case and unless reasonably explained it is sufficient to discredit the entire case. The principle enunciated in the above case was followed by our High Court in Chakradhar Mohavatra v. State of Orissa 42 (976) C.L.T. 611. It would also be useful to refer to the following two decisions of the Supreme Court cited by the learned Government Advocate. In Piara Singh and Others Vs. State of Punjab, it was observed, "It is well settled that the positive evidence in the case is that of the eye-witnesses who had seen and narrated the entire occurrence. The evidence of a medical man or an expert is merely an opinion which lends corroboration to the direct evidence in the case. Where there is a glaring inconsistency between direct evidence and the medical evidence in respect of the entire prosecution story, that is undoubtedly a manifest defect in the prosecution case. In Maharaj Singh and Another Vs. State of Rajasthan, the Supreme Court held. The mere fact that in a murder case the doctor who conducted the autopsy, did not or find any imprints of a rope on the wrists of the dead-body, is hardly a ground for rejecting the evidence of the eye-witness (brother of the deceased) to the effect that the hands of the deceased had been tied at his back when he was forcibly taken by the accused into the Arhar field and shot dead there. The discrepancy between the statement of eye-witness and medical expert was of little importance. Besides the evidence of this sole-eye witness was fully corroborated from First Information Report and from transferred statements of two other witnesses. His evidence could not be disbelieved merely because he was elder brother of the deceased. The discrepancy between the statement of eye-witness and medical expert was of little importance. Besides the evidence of this sole-eye witness was fully corroborated from First Information Report and from transferred statements of two other witnesses. His evidence could not be disbelieved merely because he was elder brother of the deceased. Bearing in mind the principles enunciated in the aforesaid decisions, the inconsistency between the evidence of eyewitnesses and the medical evidence in this case may now be considered. P.W. 18 the doctor who had conducted the postmortem examination, has stated in Court that he had found one punctured wound on the right calf of the deceased. The doctor had relied upon his post-mortem examination report, Ext. 14 in support of his statement. However, P.Ws. 2 to 4 and 8, the eye-witnesses, have consistently stated that the Tenta blow was given by Lingaraj on the left leg of the Mahant. P.W. 19 is the Police Officer who had held inquest over the dead-body at Kanas Hospital on 6.3-1979. Ext. 10/2 is the inquest report. He has stated that he had noticed the punctured wound on the left calf of the deceased. He had not noticed any punctured wound on the right calf of the deceased. P.W. 13 who was then working as the Principal of Brahamagiri College is a witness to the inquest held by P.W. 19. He has clearly stared that he had definitely noticed the procured wound on the left leg of the Mahant along with other injuries on the different parts of the body and according to him there was no punctured wound on any part of the right leg. P.W. 14 is the doctor who was at that time attached to Kanas hospital. He is also a witness to the inquest. In Court it was not possible for him to read the inquest report on account of some eye-troubles, but he has stated that he had attested the inquest report only after going through its contents and on being satisfied about their correctness. In view of the overwhelming evidence coming from the eye-witnesses and P.Ws. 13, 14 and 19, the evidence of P.W. 18, the doctor who had conducted the postmortem examination, that the punctured wound was on the right calf of the deceased must be rejected. The next inconsistency is with regard to the Katari blows given by Karunakar on the head of the Mahant. 13, 14 and 19, the evidence of P.W. 18, the doctor who had conducted the postmortem examination, that the punctured wound was on the right calf of the deceased must be rejected. The next inconsistency is with regard to the Katari blows given by Karunakar on the head of the Mahant. P.W. 18 has stated that the head injuries could have been caused by the blunt side of a Katari or a lathi. P.W. 2 has stated in Court that M.O. I is the Katari which was used by Karunakar. P.W. 18 has stated that the injuries on the head of the deceased could not be caused with the sharp side of M.O. I and further that injury No. 1 could not have been caused with the blunt side of M.O. I. No importance can be given to the identification of M.O. I by P.W. 2 in Court as in his cross-examination he has stared that he had noticed M.O. I for the first time on the day of occurrence and for the second time on the date of his deposition in Court and admittedly M.O. I does not contain any special mark of identification. According to P.W. 20. the I.O., M.O. I was seized not from Karunakar, but from the house of Naran, vide seizure list Ext. 8/1. The statement of P.W. 2 that M.O. I was used by Karunakar is nothing but an exaggeration and must be ignored. The eye-witnesses have stated that Karunakar had assaulted the Mahant on his head with a Katari and had given two successive blows. None of these witnesses has stated that Karunakar had dealt the blows with the blunt side of the Katari. The learned Sessions Judge is clearly wrong in his observation in the judgment at page 93 of the Paper Book that the cogent and consistent evidence before the Court as narrated by P.Ws. 1 to 4 and 8 is that the blunt side of the Katari was used by Karunakar. The eye-witnesses have not stated that the blunt side of the Katari was used and in the absence of any evidence it was not open to the trial Court to jump to the conclusion that the blunt side of the Katari was used. 1 to 4 and 8 is that the blunt side of the Katari was used by Karunakar. The eye-witnesses have not stated that the blunt side of the Katari was used and in the absence of any evidence it was not open to the trial Court to jump to the conclusion that the blunt side of the Katari was used. On the basis of the evidence of the eye-witnesses it can only be said that two blows on the head of the Mahant were given by Karunakar with a Katari. It is not known whether the blunt side or the sharp side of the Katari was used. If the blunt side was used, that would be consistent with the medical evidence. On the other hand, if the sharp side was used, the evidence of the medical expert becomes inconsistent. However, it must be noted that the discrepancy between the positive and direct evidence of eye-witnesses and the medical expert in this regard is of little importance and it cannot be said to be such a glaring inconsistency as to justify discarding the prosecution case. As regards the lathi blow by Bhaskar on the head of the deceased, the evidence of the medical expert provides corroboration. 11. The defence plea as appears from the suggestions made to some of the eye-witnesses, is that the Mahant died on account of injuries received by him by accidental fall from his motor-cycle. In this context, Mr. Gupta, learned Counsel for the Appellants, relies on a decision of the Calcutta High Court reported in Raj Kishore Rabidas Vs. The State, wherein it was held, "The judgment of the Court must show that the Judge had regard to presumption of innocence of the accused. There is no presumption in law of absolute truthfulness of prosecution witnesses. It is the duty of the Judge to weight the prosecution evidence. xx xx xx. If from the evidence, any probability consistent with innocence of the accused is equally strong as the probability pointing to his guilt, then on the strength of presumption of innocence in favour of the accused, prosecution has failed to prove its allegations. It is the duty of the Judge to weight the prosecution evidence. xx xx xx. If from the evidence, any probability consistent with innocence of the accused is equally strong as the probability pointing to his guilt, then on the strength of presumption of innocence in favour of the accused, prosecution has failed to prove its allegations. Even if the probability consistent with innocence is not equally strong with other probability of his guilt, yet probability of innocence is such as would cast a doubt, then it may be a case of reasonable doubt, benefit of which must go to the accused. That being so, it is incumbent duty of the Judge to consider all the probabilities that appear from the evidence before him". We agree with the aforesaid observations and proceed to examine if the defence plea can be said to be probable. P.W. 18. has stated that he could not over-rule the possibility of injury Nos. (i) to (v) on the deceased being caused by fall from the motorcycle and injury No. (vi) could be caused by a peg attached to the earth. It has been elicited by the defence from P.W. 4 in his cross-examination that the Mahant had fallen down from the motor-cycle near the house of Naran Pradhan as his Dhoti had stuck to his motor-cycle. However, P.W. 4 does not say that the Mahant was injured in any way on account of the fall. None of the other witnesses has also stated that the Mahant was injured on account of fall from his motor-cycle. The consistent evidence of the eye-witnesses is that the injuries were suffered by the Mahant not on account of accidental fall from the motor-cycle, but because of assault by Bhaskar. Lingaraj and Karunakar, P.W. 1 is the Motor Vehicles Inspector who had examined the Mahant's motor-cycle at Kanas Out Post on 6-4-1979. Ext. 13 is his report. He has stated that he found no defect in the motorcycle which was not at all damaged except that the left side front of the fuel tank was slightly denied. It does not appear probable that the accident would cause no damage to the motor-cycle except a slight dent on the fuel tank and no injury at all to the pillion passenger P.W. 1 and yet result in such serious injuries to the Mahant as to cause his death. It does not appear probable that the accident would cause no damage to the motor-cycle except a slight dent on the fuel tank and no injury at all to the pillion passenger P.W. 1 and yet result in such serious injuries to the Mahant as to cause his death. Therefore, the plea of motor-cycle accident is neither true nor probable. In view of the consistent and overwhelming evidence of the eye-witness and P.W. 17, the defence plea that the Mahant had died on account of injuries received by accidental fall from his motor-cycle must be rejected as false. It must be held that the death of the Mahant was homicidal in nature. 12. We may next refer to the F.I.R. the genuineness of which has been challenged. P.W. 1 is the informant. At first he stated that he went to Kanas Out-Post and reported the occurrence to P.W. 19 who reduced his report to wilting and there after he signed the same, Ext. 1 being his signature. According to P.W. 19, the F.I.R. was recorded at Kanas Out-Post at 9.15 a.m. on 6-3-1979. In his cross-examination P.W. 1 resiled from his earlier version saying that he lodged the F.I.R. at Kanas hospital and that the endorsement in the F.I.R., Ext. 1/1 that he had lodged the F.I.R. at Kanas Out-Post was wrong. According to him, he had signed the F.I.R. at 4.00 p. m. He has again stated that the F.I.R., the contents of which were read-over and explained to him, was written at the Out-Post and he had given an acknowledgment on the body of the F.I.R., but Ext. 1 did not contain that acknowledgment. A closer scrutiny of the F.I.R. and the statement of P.W. 1 reveals that the prevaricating statements of P.W. 1 with regard to the lodging of F.I.R. is the result of confusion. Ext. 1/1 is the F.I.R. and it shows that it was recorded in writing by P.W. 19 on the basis of the oral report of P.W. 1 at Kanas Out-Post on 6-3-1979 at 9.15 a.m. P.W. 19 had sent the F.I.R. to Satyabadi Police Station for drawing up of the formal F.I.R., Ext. 1/3 on 6-3-1979 at 5.00 p.m. Ext. 16 is the copy of the F.I.R. and Ext. 16/1 is the endorsement by the informant acknowledging receipt of a copy of the F.I.R. Ext. 1/3 on 6-3-1979 at 5.00 p.m. Ext. 16 is the copy of the F.I.R. and Ext. 16/1 is the endorsement by the informant acknowledging receipt of a copy of the F.I.R. Ext. 1/1 and the formal F.I.R. were placed before the Sub-Divisional Judicial Magistrate, Puri on 7-3-1979 and the signature of the Sub-Divisional Judicial Magistrate appears thereon. In these circumstances there can be no truth in t4e allegation that the original F.I.R. was substituted. Also merely because the word "Parsa" has been crossed out and the word "Katari" has been written on the inquest report and the dead-body challan, it cannot be said that the F. I. R. was manipulated to bring in a new prosecution case. 13. It has also been argued on behalf of the Appellants that the conduct of the Mahant and P.W. 1 at the time of the occurrence was so unusual that no credence should be attached to the prosecution case. It is submitted that normally the Mahant should have driven away in his motor-cycle as soon as apprehended danger and before, the assault. According to learned Counsel, it is rather strange that the Mahant instead of leaving the place would stay there to be assaulted by the Appellants. Similarly, as regards P.W. 1, it is argued that instead of running away from the scene and going for help, why should be pause at some distance to watch the occurrence? It is in evidence that the Mahant had left his motor-cycle and receded some distance when the assault began and that P.W. 1 was running back towards the Math when he stopped and saw the occurrence. How a person would react at a moment of grave crisis would depend on many uncertain factors and such conduct may easily vary from one person to another. In any case the conduct of the Mahant and P.W. 1 was not so inherently unusual as to belie the direct testimony of the eye-witnesses. 14. How a person would react at a moment of grave crisis would depend on many uncertain factors and such conduct may easily vary from one person to another. In any case the conduct of the Mahant and P.W. 1 was not so inherently unusual as to belie the direct testimony of the eye-witnesses. 14. On the basis of the evidence adduced in this case the prosecution must be held to have established the following facts: (1) that Naran and Nanda placed the bullock cart transversely across the road thereby, blocking the forward passage of the Mahant; (2) that Bhaskar dealt a lathi blow on the head of the Mahant; (3) that Lingaraj pierced a Tenta into the left leg of the Mahant; (4) that Surendra called out that there was no point in waiting any further and that the Mahant should be finished; (5) that Karunakar dealt two successive blows with a Katari on the head of the Mahant; and (6) that the Mahant died on account of the injuries received during the assault and that the two head injuries were sufficient in the ordinary course of nature to cause death. 15. It now remains to be seen whether the charge u/s 302/34, I.P.C. has been established against all the Appellants. It is well known that a charge u/s 34, I.P.C. presurposes the sharing of a particular intention by more than one person to commit a criminal act. It was held in Hethubha alias Jithuba Madhuba and Others Vs. The State of Gujarat. "The dominant feature of Section 34 is the element of participation in actions. This participation need not in all cases be by physical presence. Common intention implies acting in concert. There is a pre-arranged plan which is proved either from conduct or from circumstances or from incriminating facts. The principle or joint liability in the doing of a criminal act is embodied in Section 34 of the Indian Penal Code. The existence of common intention is to be the basis of liability. That is why the prior concert and the pre-arranged plan is the foundation of common intention to establish liability and guilt". In Parichhat and Ors. v. The State of Madhya Pradesh 1971 S.C.D. 1158. The existence of common intention is to be the basis of liability. That is why the prior concert and the pre-arranged plan is the foundation of common intention to establish liability and guilt". In Parichhat and Ors. v. The State of Madhya Pradesh 1971 S.C.D. 1158. It was observed, "In absence of any evidence of a prior meeting of minds and any pre-arranged plan or of participation of accused persons in the fight in question they cannot be convicted with the aid of Section 34. Prosecution must prove that the criminal act has been done in concert pursuant to the pre-arranged plan. Mere proof that some accused persons were with the main accused who inflicted fatal injury on the deceased at the time of cutting of crops on the field will not attract the applicability of Section 34. In the present case the prosecution has established that Naran and Nanda had placed the bullock cart transversely across the road thereby blocking the passage of the Mahant. This is the only overt act which distinguishes their case from that of the other accused persons who were present at the spot during the occurrence and who have been acquitted in the trial Court. This overt act does not indicate that these two Appellants were acting in concert with the others in furtherance of a pre-arranged plan to commit murder of the Mahant. Therefore, the charge u/s 302/34, I.P.C. cannot be said to have been established against these two Appellants. They are however clearly guilty of the offence u/s 341/34, I.P.C. As regards Surendra the only overt act attributed to him is that after the assault by Bhaskar and Lingaraj, he called out that the Mahant should be finished and thereafter Karunakar dealt Katari blows on the head of the deceased. The call by Surendra may amount to instigation but it does not indicate that Surendra was a party to the concert or the pre-arranged plan to commit murder of the Mahant. Relying upon Gaya Prasad Ramlal Vs. State of Maharashtra the learned Government Advocate submitted that the fact that Surendra called out to the other Appellants to finish the Mahant shows that he shared the common intention along with the other to kill the Mahant. The facts in the aforesaid Supreme Court case are different from the facts in this case. Relying upon Gaya Prasad Ramlal Vs. State of Maharashtra the learned Government Advocate submitted that the fact that Surendra called out to the other Appellants to finish the Mahant shows that he shared the common intention along with the other to kill the Mahant. The facts in the aforesaid Supreme Court case are different from the facts in this case. In that case on being called upon by the accused the premeditated attack of the deceased with knives commenced and there was no doubt that the attack on the deceased was at the instance of the accused. In the present case when Surendra called out, the attack on the Mahant had already commenced and assault by two out of the three assailants was already over. In these circumstances it cannot be said that Surendra shared the common intention to commit murder of the Mahant. Hence the charge u/s 302/34, I.P.C. must fail as against. Surendra. As regards Bhaskar Lingaraj and Karunakar, it is clearly established that Lingaraj had given a lathi blow on the head of the Mahant and Karunakar had also given Katari blows on the head of the Mahant. Although Lingaraj's Tenta blow was directed at the left leg of the Mahant, the fact that he had joined in the assault on the Mahant along with Bhaskar and Karunakar and that his Tenta blow followed the lathi blow by Bhaskar on the head of the Mahant leaves no room for doubt that Lingaraj also shared the common intention and acted in concert with Bhaskar and Karunakar to murder the Mahant. Therefore, it must be held that the charge A u/s 302/34, I.P.C. has been fully brought home against Bhaskar, Lingaraj and Karunakar. 16. Accordingly this appeal is allowed in respect of Appellant Surendra Jena. His conviction and sentence u/s 302/34, I.P.C. are set aside and he is acquitted of the charge. He must be set at liberty forthwith. The appeal is partly allowed in respect of Appellants Naran Pradhan and Nanda Rautraray. Their conviction and sentence u/s 302/34, I.P.C. are set aside and they are acquitted of the said charge, but their conviction u/s 341/34, I.P.C. is confirmed and they are sentenced to simple imprisonment for one money each. The appeal is dismissed in respect of Appellants Bhaskar Rautray. Kamnakar Rautray and Lingaraj Bhoi. Their conviction and sentence u/s 302/34, I.P.C. are confirmed. P.K. Mohanti, J. 17. The appeal is dismissed in respect of Appellants Bhaskar Rautray. Kamnakar Rautray and Lingaraj Bhoi. Their conviction and sentence u/s 302/34, I.P.C. are confirmed. P.K. Mohanti, J. 17. I agree. Final Result : Allowed