JUDGMENT : R.C. Patnaik, J. - Appellant Hiralal was a dealer of controlled commodities for village Mahardpalasa under Jasipur police station in the district of Mayurbhanj. At the instance of Jatin, the deceased, a complaint (Ext. 1) was made to the B.D.O., Jasipur on 12.5.82 by the villagers that controlled commodities were not being properly distributed. The Co-operative Extension Officer and the Supply Inspector enquired into the complaint. The allegations having been established, dealership of Hiralal was cancelled and in his place Rameswer Mahanta was appointed as the dealer. Around 9 a.m. on 15.7.82 Jatin was sitting in the shop of Dambaru (P.W.3) who was preparing pakoda, with a view to boarding the bus for Bijatala where he was serving as Village Level Worker. Dasaratha Mahanta (P.W. 13), Kamal Lochan Nayak, Manalal Behera and another were also there. Both the Appellants at that time entered the shop. Appellant Hiralal was holding a bhujali knife and Appellant Motilal was armed with a bhujali. Motilal it is alleged, caught hold of the neck of Jatin and pressed him against the wall. Jatin groaned. Hiralal suddenly hit Jatin in his abdomen with the bhujali knife. He inflicted another blow on his head. Motilal, it is said, dragged Jatin outside and both of them gave him pushes and kicks and threw him on the road. Anadi Charen Bahera (P.W. 1) arrived at the place who offered water to Jatin who could not drink. Jatin was removed to Jasipur hospital in a jeep. As his condition aggravated, he was advised to be removed to Karanjia hospital. On the way, he passed away. Information was sent to Karanjia police station by Annexure-8. P.W. 11, the Assistant Sub-Inspector of police Karanjia P.S. held inquest over the deadbody and sent the deadbody to Karanjia hospital for postmortem examination. P.W. 5 conducted the postmortem examination on 15.7.82 around 1.15 p.m. In the meanwhile, P.W. 17, the Officer-in-charge of Jasipur police station had received information about the incident. He made station diary entry No. 272 dated 15.7.82 (Ext. 20) and proceeded to the spot. F.I.R. (Ext. 2) was lodged by P.W. 1. He arrested the Appellants and seized the wearing apparels around 1 p.m. and also seized the bhujali knife M.O.I. from the house of Appellant Motilal under Ext. 18. Earth suspected to be stained with human blood was sent for examination by the Serologist and the Chemical Examiner. F.I.R. (Ext. 2) was lodged by P.W. 1. He arrested the Appellants and seized the wearing apparels around 1 p.m. and also seized the bhujali knife M.O.I. from the house of Appellant Motilal under Ext. 18. Earth suspected to be stained with human blood was sent for examination by the Serologist and the Chemical Examiner. As a prima facie case was made out, charge-sheet was submitted against the Appellants u/s 302/34 and Section 452 of the Indian Penal Code. 2. While denying the offence alleged to have been committed by them, Motilal pleaded that his brother Hiralal reported to him in his house that their brother Babulal had killed Jatin by a Luhaphala. It was further pleaded that whereas P.W. 1 and the witnesses belonged to Janata party, Appellant Hiralal belonged to Youth Congress (I). On 15.7.82 while he was proceeding to bus stand, he met Jatin who teased him that his dealership had been cancelled, whereupon Appellant Hiralal replied that he had voluntarily relinquished the dealership and his dealership had not been cancelled. This enraged Jatin who held the shirt collar of Hiralal and there was a tussle between them. Jatin received an injury coming in contact with a dried branch of Amari plant. In course of the tussle, he gave a kick to Hiralal. Jatin in reply gave a blow in the stomach. Hiralal fell down on the road. While Jatin was attempting to hit with a stone, his brother Babulal reached the place with a Luhaphala and thrust the same into the belly of Jatin. When Jatin attempted to hit Babulal with the stone, the latter gave him a blow on the head with the Luhaphala. Then Jatin ran towards the shop of Dambaru (P.W. 3). 3. Prosecution examined seventeen witnesses. Defence examined Babulal as D.W. 1. Of the prosecution witnesses, P.Ws. 2, 3, 13 and 16 are the eye witnesses. P.Ws. 9 and 10 arrived at the spot when Jatin was being dragged from the shop of P.W. 3. 4. On a consideration of the evidence, the learned Sessions Judge accepted the prosecution version, disbelieved the defence plea and convicted the Appellants u/s 302/34 and Section 452 of the Indian Penal Code and sentenced them to undergo imprisonment for life on the first count and to undergo two years' rigorous imprisonment on the second count. The sentences were directed to run concurrently. 5. The sentences were directed to run concurrently. 5. Learned Counsel for the Appellants did not dispute that Jatin met a homicidal death. Having regard to the defence plea, it cannot be disputed that an incident took place near the shop of P.W. 3. The controversy is as to the manner in which Jatin met his death. If the prosecution evidence is reliable and accepted, the defence plea is farfetched and unbelievable. Learned Counsel, therefore, sought to assail the witnesses as unreliable and their evidence was challenged as inconsistent and contradictory. When the earth seized from inside the shop where Jatin was stabbed was found not to be stained with any blood, it was argued, the prosecution version as to the place of incident was unbelievable and the defence version that the incident took place on the road had a ring of truth. It was argued that P.Ws. 2, 3 and 13 were not stated to be the eye witnesses in the F.I.R. lodged by P.W. 1 who, according to the prosecution version, arrived at the spot immediately after the incident and gathered information from the spot. 6. We have been taken through the evidence. Nothing specifically has been brought out in the evidence as to why the evidence of P.Ws. 2 and 13 should be disbelieved. Defence has not been able to shake them in cross-examination. P.Ws. 3 and 13 are categorical as to the roles played by the Appellants. Their evidence is corroborated by P.Ws. 2 and 16. Statements of P.Ws. 3 and 13 were recorded u/s 164 of the Code of Criminal Procedure. It was argued by the learned Counsel for the Appellants that their evidence suffered from serious infirmity. They were not free to depose the truth, having already been bound by their previous statements recorded u/s 164 of the Code of Criminal Procedure. This aspect requires some consideration; Learned Counsel for the Appellants and the learned Addl. Standing Counsel have drawn our attention to some authorities which we notice hereunder. In Ram Charan and Others Vs. They were not free to depose the truth, having already been bound by their previous statements recorded u/s 164 of the Code of Criminal Procedure. This aspect requires some consideration; Learned Counsel for the Appellants and the learned Addl. Standing Counsel have drawn our attention to some authorities which we notice hereunder. In Ram Charan and Others Vs. State of U.P. the Supreme Court observed that the view of the Nagpur High Court in AIR 1940 340 (Nagpur) which was followed by Subba Rao, C.J. (as he then was) In Re: Gopisetti Chinna Venkata Subbaiah and Others, laid down the law correctly: We are of the opinion that if a statement of a witness is previously recorded u/s 164 Code of Criminal Procedure, it leads to an infence that there was a time when the police thought the witness may change but if the witness sticks to the statement made by him throughout, the mere fact that his statement was previously recorded u/s 164, Code of Criminal Procedure will not be sufficient to discard it. The Court, however, ought to receive it with caution and if there are other circumstances on record which lend support to the truth of the evidence of such witness, it can be acted upon. It was observed in Balak Ram v. State of U.P. AIR 1974 S.C. 2166: ...it would be wrong to find fault with the Investigating Officer merely because he got the statements of these witnesses recorded u/s 164. Nor can the evidence of a witness be discarded for the mere reason that his statement was recorded u/s 164 the evidence of witnesses whose statements were recorded u/s 164 must be approached with caution.... in Dhanabal and Another Vs. State of Tamil Nadu it was observed: During the investigation the Police Officer sometimes feels it expedient to have the statement of a witness recorded u/s 164, Code of Criminal Procedure This happens when the witnesses to a crime are clearly connected with the accused or where the accused are very influential which may, result in the witnesses being gained over. ...The mere fact that the police had reasons to suspect that the witnesses might be gained over and that it was expedient to have their statements recorded by the Magistrate, would not make the statements of the witnesses thus recorded, tainted. ...The mere fact that the police had reasons to suspect that the witnesses might be gained over and that it was expedient to have their statements recorded by the Magistrate, would not make the statements of the witnesses thus recorded, tainted. ...It is for the Court to consider taking into account all the circumstances including the fact that the witness had resiled, in coming to the conclusion as to whether the witness should be believed or not. The fact that the Police had Section 164 statement recorded by the Magistrate, would not by itself make his evidence suspect.... 7. The Legislature in its wisdom has permitted recording of statements of witnesses u/s 164 of the Code of Criminal Procedure. The raison deter for the rule is our social conditions. It is not unknown that witnesses are sought to be gained over by resourceful and influential accused and witnesses who at the investigation stage had supported the prosecution case change their version at the trial. This happens mostly due to either fear or under pressure from the accused. Off late acquittals, on the prosecution witnesses going hostile have become very common. Therefore, if the investigating officer apprehends that the witness might resile at the trial from his version during investigation and gets his statement recorded u/s 164 Code of Criminal Procedure his conduct cannot be faulted. As a corollary, the integrity and credibility of a witness cannot be doubted merely because the investigating officer had some apprehension that he might resile at the trial from his version during the investigation. The conduct of the Investigating Officer could have no impact on his veracity and integrity. Unless there are other materials and circumstances on record which impeach his veracity, the mere fact that the statement of a witness was recorded u/s 164, Code of Criminal Procedure, would not render his version at the trial suspect. His statement u/s 164 Code of Criminal Procedure may be used as corroborating or contradicting his version at the trial. If he has stood the cross-examination and his version remains unshaken, he cannot be held to be unreliable merely on the ground that his statement was recorded u/s 164 of the Code of Criminal Procedure. His evidence, it has been said, should be assessed with caution. If he has stood the cross-examination and his version remains unshaken, he cannot be held to be unreliable merely on the ground that his statement was recorded u/s 164 of the Code of Criminal Procedure. His evidence, it has been said, should be assessed with caution. For that matter, the evidence 'in a criminal case where liberty of the individual is at stake should be approached with caution. The rule of caution should not be elevated to the status of a rule of law. 8. We thought it necessary to clarify the law in as much as it is very often argued that the evidence of a witness whose statement has been recorded u/s 164 of the Code of Criminal Procedure is weak evidence and the witness is unreliable. There is no authority for such argument. We, therefore, discard the Appellants' contention that the evidence of P.Ws. 3 and 13 should be discarded as their statements had been recorded u/s 164 of the Code of Criminal Procedure. If they have not resiled at the trial from their earlier version and if contradictions and inconsistencies in material particulars do not appear in their evidence and if they are not otherwise unreliable and untrustworthy either by reason of interestedness or enmity, there is no ground to treat their evidence as infirm or weak. As nothing has been brought out in the evidence, we accept their version at the trial as reliable. The shop-keeper had no axe to grind. Nothing has been brought out against P.W. 13. Their evidence corroborated by the evidence of P.Ws. 2 and 16 establishes the prosecution case as to the manner in which the incident took place. 9. It has been argued that since the earth that was seized from inside the shop premises was found not to be stained with blood, the prosecution version that the assault took place inside the shop was unacceptable. Jatin was hit on the stomach and on the head and soon thereafter he was dragged to a place on the road 60 feet away. P.W. 5 who conducted the post-mortem examination found the stomach cavity full of blood, That goes to indicate that the bleeding was internal and such blood as may have oozed out might not have fallen on the ground inside the shop. Jatin was wearing clothes. P.W. 5 who conducted the post-mortem examination found the stomach cavity full of blood, That goes to indicate that the bleeding was internal and such blood as may have oozed out might not have fallen on the ground inside the shop. Jatin was wearing clothes. Such blood as may have oozed out might have got soaked in the clothes. Jatin did not fall inside the shop premises. The place where he ultimately rested was on the pitch road 60 feet away from the shop and the earth seized therefrom was found stained with human blood. The wearing apparels of Appellant Motilal and Hiralal were found to be stained with human blood. So also the canvas shoes worn by Appellant Motilal. Therefore, having regard to the evidence of toe eye witnesses which, in our opinion, is unimpeachable and is corroborated in material particulars by the evidence of the doctor and by other evidence, we have no doubt that the incident took place in the manner as placed by the prosecution. 10. Counsel for the Appellants wanted us to disbelieve the prosecution case inasmuch as it did not examine some persons who were admittedly present at the shop, namely, Kamal Lochan Nayak, Manalal Behera and one Sarik Babu. This contention has no substance. Firstly they did not belong to village Mahardapalsa and secondly, it was not obligatory on the prosecution to examine all the witnesses. Stress is not given on multiplicity of witnesses but on their worth. If the witnesses examined are independent and reliable, the prosecution suffers from no infirmity for non-examination of some of the eye witnesses. 11. The next question is the offence committed by each of the Appellants. There can be no doubt that both the Appellants proceeded to the shop of P.W. 3 with a view to chastising Jatin and teaching him a good lesson. Motilai caught hold of his shirt collar and pressed him against the wall. While he was so holding him, Hiralal hit Jatin in the stomach and on the head with a bhujali on quick succession. It cannot be said that both were actuated by a common intention. No doubt, Motilal was also armed with a bhujali. But he has given no indication of using the same. His articulation at the spot gave no indication that he intended to inflict an injury which was likely to cause death. It cannot be said that both were actuated by a common intention. No doubt, Motilal was also armed with a bhujali. But he has given no indication of using the same. His articulation at the spot gave no indication that he intended to inflict an injury which was likely to cause death. He might not have shared the intention of Hiralal. The acts of Hiralal could he his own. From their acts it cannot be inferred that both of them had pre-meditated and the acts committed by both were the result of a pre conceived plan. From the evidence, it will be safe to infer that both intended to give Jatin a good lesson but it cannot be said that both of them were actuated by the common intention of inflicting such injuries as were likely to cause his death. Hitting Jatin with bhujali though Motilal was armed with a bhujali might have been far from his mind. Therefore, we hold that the conviction of Motilal u/s 302/34 of the Indian Penal Code is misconceived and is unsustainable. We, therefore, acquit him of the offence u/s 302/34 I.P.C. and in lieu thereof he is convicted u/s 323 I.P.C., and since he has served the maximum sentence imposable, he be released forthwith. As far as Hiralal is concerned, he shall be liable for his own acts and we convict him u/s 302 I.P.C. and sentence him thereunder to undergo rigorous imprisonment for life. The conviction of both the Appellants u/s 452 of the Indian Penal Code and the sentence imposed thereunder are sustained. 12. In the result, the appeal of Motilal is allowed in part and that of Hiralal with the aforesaid modification is dismissed. S.C. Mohapatra, J. 13. I agree. Final Result : Allowed