JUDGMENT : K.P. Mohapatra, J. - The Appellants have challenged the judgment passed by the learned Additional Sessions Judge, Cuttack, convicting them u/s 302, I.P.C. and sentencing each of them to undergo imprisonment for life. 2. Prosecution case in brief is that the Appellants along with 45 accused persons, since acquitted, formed one group and p. ws. 1 to 4. the deceased and many others of village Kaipalla within Banki Police Station of Cuttack district belonged to the rival group. Both the groups were at daggers drawn with each other and were involved in litigations. On 10-9-1983 at about 4.30 p. m. the deceased and p. w. 1 started from the village on their way to Banki so as to come to Cut tack for consultation with an advocate in connection with a G. R. Case against the former. While p. w. 1 was on a bi-cycle, the deceased was a pillion rider. At some distance behind, p. w. 3 was also corning to Banki riding on the pillion of the cycle of his son. He was to accompany the deceased to Cuttack. By the side of the road, at a distance of about 400 to 500 cubits from the village, there lies a mango tope called Gothapada. The Appellants along with the other accused persons being armed with deadly weapons, such as, Katua, Farsa, Kati, Tangia and lathi lay in wait. P. w. 1 saw them and told the deceased that he apprehended danger, but the latter replied that those persons were sitting inside the tope and would cause no harm to them. So, they proceeded ahead to some distance when Appellant Banambar rushed towards them a Katua in hand. Out of fear, p. w. 1 and the deceased got down from the cycle. Soon thereafter Appellant Banambar dealt a blow with the Katua on the head of the deceased, as a result of which the latter fell down injured with his face downwards. With difficulty the deceased attempted to escape and proceeded some distance curling on his knees, but Appellants Dama and Mlechha stood in his front and obstructed him. So doing, they dealt Katari blows on the hands and legs of the deceased causing severe bleeding injuries. P.w.1 saw the assault and being mortally afraid himself threw away the cycle and ran away towards Banki. P. w. 3 and his son also saw the incident. So doing, they dealt Katari blows on the hands and legs of the deceased causing severe bleeding injuries. P.w.1 saw the assault and being mortally afraid himself threw away the cycle and ran away towards Banki. P. w. 3 and his son also saw the incident. They fled towards the village and reported the fact of assault to p. w. 10, a Police Constable who was on patrol duty in the village. P.w. 10 came immediately to the spot and found the deceased lying on the ground having injuries on the head, hands and legs. He was struggling for life. In the meanwhile, p. w. 1 arrived at Banki and lodged F. I. R. (Ext. 1) at the police station. P. w. 15, the Officer-in-charge of Banki Police Station and the Investigating Officer of the case commenced investigation and proceeded to the spot. On the way he met the deceased being carried by some persons on a cot towards Banki Hospital. He conducted the investigation and at about 11.30 p. m. received information that the deceased had expired at the hospital. He came back, made arrangements for sending the dead body for post-mortem examination and, after completion of investigation, submitted charge-sheet against as many as 48 accused persons for having committed offences u/s 147, 148 and 302 read with Section 149, I.P.C.. 3. The defence of the Appellants was denial and false implication on account of enmity. 4. The learned Additional Sessions Judge after consideration of the prosecution evidence held that death of the deceased was homicidal. The Appellants were the assailants who had committed the murder. Therefore, while he convicted them u/s 302, I.P.C., he acquitted the rest of the 45 accused persons of all charges. 5. The Medical Officer (p. w. 9) in his post-mortem report (Ext. 6) stated that the deceased had as many as fourteen injuries. Three of them were lacerated injuries, one on the scalp and the other two on the middle of the right thigh. There were five abrasions and a massive swelling on different parts of the body. Both the bones of right fore-arm had been fractured. Throughout the body there were large number of cut wounds. According to his opinion, the injuries were antemortem in nature. There were five abrasions and a massive swelling on different parts of the body. Both the bones of right fore-arm had been fractured. Throughout the body there were large number of cut wounds. According to his opinion, the injuries were antemortem in nature. All the injuries taken together were sufficient in ordinary course to cause death, which was due to shock and lost of vital functions resulting from massive haemorrhage through the cut wounds. At the time of hearing, the finding of the learned trial Judge that death was homicidal in nature was not disputed. 6. P. ws. 1, 3 and 4 were eye witnesses to the occurrence. Out of them, the evidence of p. w. 4 was not accepted by the learned trial Judge on the ground that he arrived at the spot after the assault was over. On considering his evidence and the reasons assigned for rejection of his evidence, we find that the learned trial Judge was justified in taking the aforesaid view. We, therefore, do not intend to discuss his evidence, because he was a post occurrence witness. Now coming to the evidence of p. ws. 1 and 3, there is no doubt that they were witnesses of partisan character. They were also in litigating terms with the Appellants and some of their faction. As rightly pointed out by the learned trial Judge, their evidence for that reason cannot be outright rejected, but should be scrutinized very carefully. This is also the settled position of law, for which no citation of authority is necessary. P. w. 1 stated that on the date of occurrence, along with the deceased he started from the village on way to Banki so as to come to Cuttack. He was riding the cycle and the deceased was on the pillion. Some distance behind them, p. w. 3 was also coming to Banki on way to Cuttack sitting on the pillion of a cycle which his son was riding. When they came near Gothapada, he saw a large number of persons including the Appellants, who were armed with Katua, Farsa, Kati, Tangia and lathi, sitting inside the tope. He apprehended some trouble and told the deceased whether those persons will attack them. But the deceased replied that they were sitting inside the tope and would not cause any harm to them, and so they should proceed. He apprehended some trouble and told the deceased whether those persons will attack them. But the deceased replied that they were sitting inside the tope and would not cause any harm to them, and so they should proceed. As they proceeded ahead upto some distance, Appellant Banambar rushed towards them with a Katua. Both p. w. 1 and the deceased got down from the cycle. Appellant Banambar dealt a Katua blow on the head of the deceased, as a result of which he fell down with his face downwards. He attempted to escape and proceeded with difficulty upto some distance. But soon Appellants Dama and Mlechha armed with a Kati each stood in front of him and obstructed him from proceeding further. They dealt several Kati blows on the hands and legs of the deceased. The other accused persons came and assaulted him by means of lathis and other weapons. Out of fear, p. w. 1 left his cycle and went towards Banki where -he lodged F. I. R. (Ext. 1) at the police station. His evidence has been corroborated by p. w. 3 who stated that he was coming behind p. w. 1 and the deceased at some distance. He stated that while p. w. 1 was proceeding ahead in his cycle carrying the deceased, the Appellants and a large number of accused persons were found inside the mango tope. Appellant Banambar armed with a Katua came running towards them. P. w. 1 and the deceased got down from the cycle. He also got down from the cycle along with his son. Appellant Banambar dealt a Katua blow on the head of the deceased, as a result of which the latter fell down with severe bleeding injuries on his head. Though injured, the deceased attempted to escape and proceeded some distance with difficulty. But Appellants Dama and Mlechha came and appeared before him. They dealt Kati blows on his hands and legs. Some other accused persons also came and assaulted him by means of Kati, Tangia and lathi. Out of fear, he came back to the village. Mr. Though injured, the deceased attempted to escape and proceeded some distance with difficulty. But Appellants Dama and Mlechha came and appeared before him. They dealt Kati blows on his hands and legs. Some other accused persons also came and assaulted him by means of Kati, Tangia and lathi. Out of fear, he came back to the village. Mr. Mohapatra, learned Counsel for the Appellants challenged the evidence of these two witnesses on many grounds, the notable being that they were partisan witnesses, seeing a large number of accused persons who were armed with deadly weapons they did not run away from the spot, the cycle of p. w. 1 was not seized by the Investigating Officer, the witness did not disclose the incident immediately to others and p. w. 3 who was not ready to leave for Banki when p. w. 1 and the deceased passed by his house could not have followed them so immediately so as to see the occurrence. With regard to the partisan character of the witnesses, the settled position of law has already been stated and 50 this point does not arise for further consideration. Suffice it to refer to State of U.P. Vs. Ballabh Das and Others in which it was held that in a faction-ridden village, it will be impossible to find independent persons to come forward and give evidence and in a large number of such cases only partisan witnesses would be natural and probable witnesses. What the law requires is that where the witnesses are interested, the Court should approach their evidence with care and caution in order to exclude the possibility of false implication. Once it is found by the Court, on an analysis of the evidence of interested witnesses, that there is no reason to disbelieve them, then the mere fact that witnesses are interested cannot persuade the Court to reject the prosecution case on that ground alone. It is true that p. w. 1 and the deceased did not run away from the spot when they saw a large number of accused persons who had gathered inside the tope being armed with deadly weapons. They saw them when they came near the mango tope. Had they seen them earlier, perhaps they would have turned back to the village. They saw them when they came near the mango tope. Had they seen them earlier, perhaps they would have turned back to the village. But when they came face to face with them, they had no escape and so it was not unusual that both of them got down from the cycle, because they did not apprehend that they would be attacked by them. That apart, people react differently to different situations. May be some other persons placed in a similar situation would have run away from the spot. But so far as p. w. 1 and the deceased were concerned, they did not react that way. It cannot, therefore, be said that their conduct for not running away from the place of occurrence should be viewed with suspicion. It also appears from the 'record that the cycle of p. w. 1 was not seized from the place of occurrence. This is not such a great lacuna for which prosecution case should be viewed with suspicion. If the cycle would have been seized, there would not have been much improvement. If a false case was to be foisted, it was not difficult to produce a cycle belonging to p. w. 1 saying that it was seized from the place of occurrence. With regard to disclosure of the fact, it will appear from the evidence of p. w. 1 that he lodged F. I. R. at the police station almost immediately after the occurrence took place. So, he disclosed the fact at the earliest possible opportunity though he might have been formally examined by the Investigating Officer a day later. P. w. 3 explained that the occurrence became known to every body and spread like wild fire and so it was not necessary for him to disclose the incident to others. He was also present at the time of the inquest, but he was formerly examined by the investigating Officer a day later. It cannot, therefore, be said that he did not see the occurrence and was a false witness. P.w. 1 stated that when along with the deceased he started from the village by cycle he saw p. w. 3 near his house and at that time he was not ready to leave for Banki. If that be so, the presence of p. w. 3 near about the place of occurrence so soon thereafter should be viewed with suspicion. P.w. 1 stated that when along with the deceased he started from the village by cycle he saw p. w. 3 near his house and at that time he was not ready to leave for Banki. If that be so, the presence of p. w. 3 near about the place of occurrence so soon thereafter should be viewed with suspicion. The witness was not such a person that he would have made a lot of preparations before leaving village for a day or two. He could as well be ready to leave within 15 to 20 minutes. Therefore, there was nothing unusual on his part to get ready immediately and follow p. w. 1 and the deceased in order to go to Banki on way to Cuttack. The above criticism apart, a cold blooded murder took place in broad day light. Both p. ws. 1 and 3 implicated only the Appellants out of a large namber of accused persons. If they had intention of implicating innocent persons, they could have done so. But out of 48 accused persons who were tried, they pin-pointed the overt acts of assault: to the Appellants alone. In such circumstances, their evidence which is above reproach cannot be disbelieved. 7. Mr. Mohapatra submitted that the post-mortem report (Ext. 6) was interpolated by the Medical Officer (p. w. 9) at the instance of the Investigating Officer (p. w. 15). According to him the head injury did not find place in the report at the first instance. Had it been so, p. w. 15 would not have made a query in his letter Ext, 7 that though at the time of inquest of the dead body a head injury was noticed which appeared to be fatal, there was no mention of such injury in the' past-mortem report. So, he sought for a clarification. On receipt of Ext. 7, p. w. 9 gave his reply in Ext. 8, to the effect that no injury on the head of the deceased was found at the time of post mortem examination either on external appearance or by internal examination of the cranial cavity. Basing on these documents, Mr. Mohapatra argued that the original post-mortem report was suppressed. There was a serious discrepancy about the head injury which was actually not in existence and in that context if the oral evidence of p. ws. Basing on these documents, Mr. Mohapatra argued that the original post-mortem report was suppressed. There was a serious discrepancy about the head injury which was actually not in existence and in that context if the oral evidence of p. ws. 1 and 3 is examined, it will appear that they did not speak the truth when they deposed that the deceased was assaulted by Katua on the head. In such circumstances, the medical evidence should be preferred to the ocular evidence. The submission raises two questions. First, whether there was a post-mortem report in which the head injury was not mentioned and second, in case of discrepancy between the medical evidence and ocular evidence, which should be preferred. P. w. 9 was very critically cross-examined and it does not appear from his evidence that there was a post-mortem report in which there was nu mention of the head injury and subsequently post-mortem report (Ext. 6) was manufactured. He explained by saying that be wrongly mentioned that there was no injury on the head of the deceased in post-mortem report. The learned Additional Sessions Judge has adequately dealt with this aspect of the matter and found that Ext. 6 was the original post-mortem report and there was no discrepancy in the matter of the head injury between it and the inquest report. Even assuming that no head injury was present on the deceased, yet the rest of the injuries taken together were sufficient in ordinary course to cause death. In Solanki Chimanbhai Ukabhai Vs. State of Gujarat it was held that ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye witnesses. Unless, however, the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eye witnesses, the testimony of the eye witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence. A Bench of this Court in 31 (1989) O. J. D. 14 (Criminal), Makaranda alias Malkham Sahu and Anr. A Bench of this Court in 31 (1989) O. J. D. 14 (Criminal), Makaranda alias Malkham Sahu and Anr. v. The State of Orissa, followed the above decision and a large number of other decisions of the Supreme Court and of this Court and held that if direct evidence is satisfactory and reliable, it may not be rejected on hypothetical medical evidence, but if medical evidence rules out the possibilities of the injuries in the manner deposed to by the prosecution witnesses, ocular testimony cannot be accepted. Mr. Mohapatra, relied upon Ram Narain Singh Vs. State of Punjab. This decision also lays down the same principle and nothing more. It is unnecessary to multiply decision on this aspect. This principle, however, cannot be made applicable to the facts of this case, because there is no inconsistency between the medical evidence and the ocular testimony. P. ws. 1 and 3 have stated about the head injury and other injuries and such injuries were found at the time of holding the inquest and the post-mortem examination. Therefore, the submissions made by Mr. Mohapatra in this respect are untenable. 8. On careful consideration of the evidence from different angles, there is no escape from the conclusion that the prosecution proved its case against the Appellants u/s 302, I.P.C. 9. Incidentally, an important question arose for consideration in this case because of the parole granted by the State Government to the Appellants. The appeal records would reveal that they moved this Court for bail which was refused by orders passed on 26-7-1985 and 22-11-1985. By order passed on 25-11-1986, in special circumstances they were released on bail for ten days. They did not surrender to custody and again moved for extension of bail which was rejected on 15-1-1986. They further moved for bail which was also refused on 27-4-1988. But on 28-4-1989 when the learned Counsel applied for extension of the period of parole, this Court wanted to know under what circumstances they were released on parole, although their applications for bail had been rejected from time to time. Notices were issued to the State Government in the Home Department and the District Magistrate, Cuttack, to enlighten the Court on facts to examine the matter. Mr. B. K. Behura, Advocate, was requested to appear amicus curiae to assist the Court. Notices were issued to the State Government in the Home Department and the District Magistrate, Cuttack, to enlighten the Court on facts to examine the matter. Mr. B. K. Behura, Advocate, was requested to appear amicus curiae to assist the Court. The parties were heard and it came to our notice that the District Magistrate, Cuttack, released the Appellants on parole in exercise of powers under the proviso to Rule 2 of the Orissa Release of Prisoners on Parole Rules, 1983 (hereinafter referred to as the 'Rules'), subject to approval of the State Government, for a period of thirty days with effect from the date of release on conditions, by order dated 3-2-1989 which was approved by the State Government by order dated 18-3-1989. 10. The Rules were framed by the State Government in exercise of powers conferred by Section 432(5) of the Code of Criminal Procedure (for short 'Cr. P. C.'). The proviso to Rule 2 authorised the District Magistrate, on his satisfaction, to release a prisoner on parole if it is urgently necessary for reasons of serious illness or death of any member of the prisoner's family or his close relatives or for enabling him to attend a marriage ceremony in his family or for construction, reconstruction or repair of the dwelling house of the prisoner's family, if there is none in his family to attend to it and further he is satisfied that any delay in release of the prisoner would cause serious hardship to him. He will, however, send the recommendation to the State Government for according approval. Section 432(1) Code of Criminal Procedure provides that when any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced. According to Sub-section (5), the appropriate Government may, by general rules or special orders, give directions as to the suspension of sentences and the conditions on which petition should be presented and dealt with. The appropriate Government in this particular case is the State Government. There is no provision in Section 432, Code of Criminal Procedure enabling the appropriate Government to delegate its function to District Magistrate, although in the Rules there has been such a delegation. The appropriate Government in this particular case is the State Government. There is no provision in Section 432, Code of Criminal Procedure enabling the appropriate Government to delegate its function to District Magistrate, although in the Rules there has been such a delegation. We doubt as to whether the proviso to Rule 2 is legal and the State Government could delegate its powers to a subordinate authority by subordinate legislation. But we consider that this matter should be left to be decided in exercise of the writ jurisdiction of the Court in an appropriate case. 11. The following two points were formulated for Mr. Behura to advance arguments: (1) Whether a person sentenced to imprisonment for life and has not undergone fourteen years of actual imprisonment can be released on parole under the Rules in view of the restrictions imposed by Section 433-A Code of Criminal Procedure ; and (2) Propriety and or legality of the order releasing the Appellants on parole according to the Rules when an appeal is pending. So far as the first point is concerned, Mr. Behura submitted by reference to decisions that release of prisoners on parole under the Rules framed u/s 432(5) Cr. P. C is permissible. So long the Rules exist in the Statute Book, the appropriate Government has the power to release a prisoner on parole. This proposition was not called in question, subject to what we have said about the delegation of powers to District Magistrates. So far as the second question is concerned, it was held in K.M. Nanavati Vs. The State of Bombay that the powers u/s 401 of the old Code corresponding to Section 432 of the new Code, should not be exercised while the Court is in seisin of the same matter, because it would mean that both the judiciary and the executive would be functioning in the same field at the same time leading to possibility of conflict of jurisdiction. It was specifically held that the Governor's power was limited to grant the suspension of sentence for the period during which the matter was subjudice in the Court. In Veeramchaneni Raghavendra Rao Vs. Govt. It was specifically held that the Governor's power was limited to grant the suspension of sentence for the period during which the matter was subjudice in the Court. In Veeramchaneni Raghavendra Rao Vs. Govt. of A.P. and Others a learned Judge of the Andhra Pradesh High Court examined Rule 23 of the Andhra Pradesh Suspension of Sentence and Parole Rules, l981 and following the decision in the case of K. M. Nanavati v. The State of Bombay (supra), held that once power u/s 432(5) Code of Criminal Procedure is construed to be exercisable for the remainder of the period of conviction as also after the disposal of the appeal, Rule 23 of the said Rules is contrary to the said power and is void. In 1986 Cri. L. J. 1298, Jayant Veerappa Shetty and Anr. v. State of Maharashtra and Ors., a Division Bench of the Bombay High Court followed the principle laid down in the case of Veeramchaneni Raghavendra Rao v. Govt. of A. P. and Ors. (supra) and interpreting the provisions of the Prisons (Bombay Furlough and Parole) Rules, 1959, held that the power assumed unto itself by State Government under the parole rules cannot be exercised so long as an appeal by a convicted person is pending and the appellate Court is in seisin of the case. The parole rules cannot stultify or thwart the judicial process and even in the most emergent circumstances the Courts will be open to grant relief in deserving cases to a convict. In view of the principle laid down in these decisions, the powers under the Rules or any other rule or special order are not exercisable when the appeal of the person convicted and sentenced is pending before the appellate Court. It, therefore, follows the order of parole of the Appellants passed by the District Magistrate and approved by the State Government, while the appeal is pending in this Court, was not proper. This Court is competent to release convicted persons on temporary bail in case of necessity in a suitable case and in fact such orders had been passed. There is likelihood of conflict of orders, if the executive will interfere in such matters during pendency of appeals. May be in a case, while the High Court will allow temporary bail, the Government: would disallow release of a prisoner on parole and vice versa. There is likelihood of conflict of orders, if the executive will interfere in such matters during pendency of appeals. May be in a case, while the High Court will allow temporary bail, the Government: would disallow release of a prisoner on parole and vice versa. So, when the Court in appeal is in seisin of the case, the executive is advised not to interfere. But the question will arise as to how the, Government will know that an appeal is pending so as not to apply the Rules. In order to obviate the difficulty, the application form in Schedule B, Form 1, to the Rules should be amended in such a way that the prisoner applying for parole shall state whether any appeal is pending and if so in which Court. If such, information would be available, it would be possible for the State Government or the District Magistrate, as the case may be, to decide as to whether the Rules should be applied while the appeal is pending or he should move the Court for release on bail. We hope henceforward, the State Government and the District Magistrates should follow on principle watch has been observed above. We appreciate and thank Mr. Behura for rendering assistance to Court. 12. In the result, the appeal is dismissed. J.M. Mahapatra, J. I agree. Appeal dismissed Final Result : Dismissed