V. GOPALASWAMY, J. ( 1 ) THE prosecution case, which has given rise to the above referred two appeals, may be briefly stated as follows : Deceased Biswambar Panda was a resident of village Badasingha within Binjharpur P. S. in Cuttack district. On 4-9-1978 at about 6 p. m. while the deceased was returning home on a bicycle, on the way, near Jenasahi Chhak of village Sainkul, all the thirty-eight accused persons including Rabi Nayak and Chaitan Jena, armed with deadly weapons attacked the deceased and assaulted him on different parts of his body as a result of which he sustained severe bleeding injuries all over his body and fell down unconscious. After thus assaulting the deceased, all the accused persons fled away from the place. On seeing the assault on the deceased, P. Ws. 1, 2 and 3 rushed to the spot of occurrence and found the deceased lying unconscious at the spot with multiple bleeding injuries on his person. Then P. W. 1 and others carried the deceased to Binjharpur P. H. C. for his treatment. Thereafter P. W. 1 lodged a written report about the occurrence (Ext. 1) at the Binjharpur police station and the same was treated as the F. I. R. in the case. On the basis of that F. I. R. the police proceeded with the investigation of the case. As the condition of the deceased at Binjharpur P. H. C. did not improve, his case was referred to Jajpur Government Hospital by the Medical Officer, Binjharpur P. H. C. and on 5-9-1978 at 3. 15 a. m. , the deceased was accordingly admitted in the Jaipur Government Hospital. As no improvement in the condition of the deceased was noticed at the Jajpur Government. Hospital, the case of the deceased was referred to S. C. B. Medical College Hospital, cuttack, to the Neuro Surgery unit, as it was suspected that the deceased had sustained injuries to his brain. On 6-9-1978 the deceased was admitted in the General Surgical Ward of S. C. B. Medical College Hospital, Cuttack and on 7-9-1978 he was taken over to the Neuro Surgical Ward for treatment of the injuries on his head. In the hospital he was treated for his injuries during the period from 6-9-1978 to 19-9-1978 and on 19-9-1978 he was discharged from the hospital. In the hospital he was treated for his injuries during the period from 6-9-1978 to 19-9-1978 and on 19-9-1978 he was discharged from the hospital. On 6-11-1978 the deceased appeared before the Assistant Professor, Neuro Surgery, S. C. B. Medical College (P. W. 8) for further follow up treatment. On 3-12-1978 the deceased was readmitted into the Neuro Surgical Department and after some treatment he was discharged on 27-12-1978. On 7-3-1979 the deceased was again admitted into the Neuro Surgical Ward of the S. C. B. Medical College Hospital for further treatment. On 26-3-1979 some operation was conducted on him and on 28-3-1979 another major operation was conducted and on 9-4-1979 the deceased expired in the hospital. The police after completion of the investigation filed the charge-sheet on 25-5-1980 against thirty-eight accused persons including accused Rabi Nayak and Chaitan Jena under Sections 147, 148, 326, 325 and 304 read with Section 149, I. P. C. ( 2 ) THE above mentioned thirty-eight accused persons stood their trial before the Court of the Assistant Sessions Judge, Jajpur, facing charges under Sections 148 and 304 read with Section 149, IPC for having caused the death of deceased Biswambar Panda. On a consideration of the evidence, the learned Assistant Sessions Judge, while convicting accused Rabi Nayak and Chait an Jena under Section 304, I. P. C. and sentencing each of them thereunder to undergo rigorous imprisonment for a period of seven years, acquitted all the remaining 36 accused persons of all the charges levelled against them. Being aggrieved by the judgement of acquittal passed in favour of the said 36 accused persons, the State of Orissa has preferred Government Appeal No. 59 of 1982 on the ground that all the 38 accused persons ought to have been convicted under S. 304 read with Section 149, I. P. C. Being aggrieved by the order of conviction and sentence passed against them, appellants Rabi Nayak and Chaitan Jena have preferred Criminal Appeal No. 58 of 1986. As both the appeals arise out of the same judgement of the learned Assistant Sessions Judge, the same are disposed of by this common judgement. ( 3 ) THE plea of all the thirty-eight accused persons was one of denial. As both the appeals arise out of the same judgement of the learned Assistant Sessions Judge, the same are disposed of by this common judgement. ( 3 ) THE plea of all the thirty-eight accused persons was one of denial. Accused Rabi Nayak had taken the specific plea of alibi and pleaded that at the alleged time of occurrence he was far away from the scene of occurrence and was engaged in flood relief work along with some Government officials at places far away from the scene of occurrence. He examined D. Ws. 1, 2 and 3 in support of his plea. The rest of the 37 accused persons pleaded that they did not participate in the alleged occurrence of assault on the deceased, but have been falsely implicated in the case owing to previous enmity. ( 4 ) THE prosecution has examined in all fourteen P. Ws. to prove its case against the accused persons. P. Ws. 1, 2 and 3 were examined as eye-witnesses to the occurrence. P. W. 1 is also the informant in the case. P. Ws. 6 and 10 did not see the actual assault on the deceased, but they claim to have seen some of the accused persons running away from the scene of occurrence at the relevant time. P. W. 4 was the Medical Officer, Binjharpur P. H. C. P. W. 5 was the Assistant Surgeon attached to Jajpur Government Hospital during the relevant period. P. W. 8 was the Assistant Professor, Neuro Surgery, S. C. B. Medical College Hospital, Cuttack, during the relevant period. P. W. 9 is the doctor who conducted the post mortem examination over the dead body of the deceased. P. W. 12 is the father of the deceased who proves the statement said to have been made by the deceased about the occurrence. P. W. 7 was a witness to the seizure made under the seizure list Ext. 6. P. W. 14 B. C. Das was the O. I. C. , Binjhrpur P. S. and he was the main I. O. in the case and on 24-6-1979 he made over charge of the investigation of the case to S. I. K. C. Bahera. P. W. 13 was the S. I. of police attached to binjharpur P. S. and on 20-9-1979 he took over charge of the investigation of the case from S. I. , K. C. Behera. P. W. 13 was the S. I. of police attached to binjharpur P. S. and on 20-9-1979 he took over charge of the investigation of the case from S. I. , K. C. Behera. P. W. 11 was the O. I. C. , Binjharpur P. S. who on completion of the investigation submitted the charge-sheet against the accused persons on 25-5-1980. ( 5 ) IT would be convenient to consider the merits of Government appeal at the outset. As earlier stated, while convicting accused Rabi Nayak and Chaitan Jena under Section 304, IPC the trial court has acquitted the remaining 36 accused persons of all the charges levelled against them and so presently they are the respondents in the Government appeal. There is reliable evidence to show that there was previous enmity between the accused respondents on the one hand and the deceased on the other. So the evidence of the P. Ws. against the accused-respondents merits careful scrutiny before the same is relied on. The evidence of P. W. 6 shows that on the relevant evening at about 4. 30 p. m. all the accused persons were seen holding a meeting in the Saptaghar of accused Narayan Panda at Sainkul. But then P. W. 6 was not in a position to say regarding the subject-matter of the discussion in that meeting. Hence from the evidence of P. W. 6 regarding the accused persons holding a meeting on the relevant evening, even if believed to be true, nothing can be inferred against the accused persons. Although as many as 38 accused persons stood their trial, in the F. I. R. only 22 from amongst them were specifically named and this is a circumstance revealing the tendency on the part of the prosecution to rope in as many of the members of the accused party as possible in the case. Excepting against accused Giridhari Satpathy, so far as the other accused-respondents are concerned, P. Ws. 1, 2 and 3 have made sweeping statements that all of them had assaulted the deceased with the lathis held by them. The nature and the number of the injuries found on the deceased immediately after the occurrence of assault do not fit in with the prosecution version that all the 36 accused respondents had also indiscriminately assaulted the deceased with lathis. The nature and the number of the injuries found on the deceased immediately after the occurrence of assault do not fit in with the prosecution version that all the 36 accused respondents had also indiscriminately assaulted the deceased with lathis. None of the eye-witnesses have given any material particulars regarding the alleged assault on the deceased by the 35 accused-respondents other than respondent Giridhari Satpathy. The prosecution evidence that the said 35 accused persons had assaulted the deceased with lathis was found to be so vague and of such a nature that it did not inspire the confidence of the trial court. So far as accused-respondent Giridhari Satpathy is concerned, P. W. 1 stated that accused Giridhari had assaulted the deceased by means of a knife on his left hand. The said version of P. W. 1 was not corroborated by P. W. 2 and the letter deposed that accused Giridhari had assaulted the deceased with the knife on his head. P. W. 2 does not state about accused Giridhari assaulting the deceased on his left hand. P. W. 3 merely states about accused Giridhari assaulting the deceased, but he (P. W. 3) does not state as to on which part of the deceased's body the accused had given the blow with the knife. From the F. I R. it is seen that P. W. 1 had given a long list of names specifically mentioning the names of as many as 22 accused persons and so if accused Giridhari had also assaulted the deceased with a knife, as alleged by the prosecution, P. W. 1 would not have omitted to mention his name in the F. I. R. so in the facts of the present case the omission of the name of accused Giridhari in the F. I. R. is a circumstance which very much goes in his favour. On a perusal of the judgement of the trial Court it is seen that it was only after a careful consideration of the evidence on record, the trial court found that none of the accused respondents was guilty of any of the charges levelled against him. Considering the nature of the prosecution evidence on the aspect of the assault on the deceased, I find that the view taken by the trial court, while acquitting the accused-respondents is not an unreasonable view. Considering the nature of the prosecution evidence on the aspect of the assault on the deceased, I find that the view taken by the trial court, while acquitting the accused-respondents is not an unreasonable view. Hence I find no reason to interfere with the order of acquittal passed in favour of the accused-respondents. In the result, I find no merit in Government Appeal No. 59 of 1982 and the same is, therefore, dismissed. ( 6 ) NOW I proceed to consider the merits of criminal Appeal No. 58 of 1986 in which accused Rabi Nayak and Chaitan Jena are the appellants. The scope of this appeal is confined to a consideration of the prosecution evidence to find out if the charge under Section 304, I. P. C. is brought home to the appellants. ( 7 ) P. WS. 1, 2 and 3 were examined as eye-witnesses to the occurrence and so their evidence merits careful consideration. P. W. 1 is Surendra Panigrahi. His evidence shows that on 4-9-1978 at about 6 p. m. as he was returning from bazaar, while he was at Jenasahi Chhak, he found the deceased going ahead of him on a bicycle. It is in his evidence that all of a sudden all the accused persons surrounded the deceased and at that time accused Chaitan Jena was armed with a tenta like weapon and accused Rabi Nayak was holding a tarwal (sword) and accused Giridhari was armed with a big knife and the rest of the accused persons were armed with lathis. P. W. 1 deposed that accused Rabi Nayak dealt a blow with the sword on the head of the deceased and accused Chaitan Jena thrust a balam into the forehead of the deceased. P. W. 1 stated that after the deceased was assaulted by the accused persons, he fell down with bleeding injuries and he was making hulla as he was being assaulted by the accused persons. P. W. 1 deposed that on hearing hull of the deceased Babaji Sethi (P. W. 2), Bishnu Sethi (P. W. 3) and Rabi Das came to the spot from their nearby lands and on their arrival the accused persons fled away from the spot. P. W. 1 deposed that on hearing hull of the deceased Babaji Sethi (P. W. 2), Bishnu Sethi (P. W. 3) and Rabi Das came to the spot from their nearby lands and on their arrival the accused persons fled away from the spot. It is in the evidence of P. W. 1 that on reaching the deceased he found him unconscious and then he and the others had carried the deceased to Binjharpur P. H. C. and thereafter he (P. W. 1) went to Binjharpur P. S. and submitted the written report marked Ext. 1 at the police station. The evidence of P. W. 2 Babaji Sethi shows that on hearing the cries of the deceased "bapalo Marigali", he rushed to the spot of occurrence along with Bishnu Sethi (P. W. 3) and found accused Rabi Nayak assaulting the deceased with a tarwal on his head and saw accused Chaitan Jena assaulting the deceased by means of a tenta on his head. It is in the evidence of P. W. 3 Bishnu Sethi that on the relevant evening on hearing the alarm raised by the deceased crying out "bapalo Marigali", he and P. W. 2 rushed to the place of occurrence when he found accused Rabi Nayak armed with a tarwal and accused Chaitan armed with a balam and they were seen assaulting the deceased with the weapons held by them. Hence from the evidence of P. Ws. 1, 2 and 3 it is seen that it is their consistent version that on the relevant evening accused Rabi Nayak had assaulted the deceased with a tarwal (sword) and accused Chaitan Jena had assaulted the deceased with the weapon held by him. ( 8 ) THE learned counsel for the appellants contended that the evidence of P. Ws. 1, 2 and 3 about the assault on the deceased by the appellants ought not to have been relied on by the trial court as they did not specifically state about it in their statements recorded by the L. O. under Section 161, Cr. P. C. For appreciating the contention so raised it is relevant to consider the manner in which the investigation was conducted in this case. P. W. 14 is the I. O. who received the written report Ext. 1 on 4-9-1978 at 10. P. C. For appreciating the contention so raised it is relevant to consider the manner in which the investigation was conducted in this case. P. W. 14 is the I. O. who received the written report Ext. 1 on 4-9-1978 at 10. 45 p. m. and treated the same as the F. I. R. and took up the investigation of the case. From the evidence of Dr. Mohanty (P. W. 5) it is seen that the deceased was received in an injured condition at Jaipur Government Hospital on 5-9-1978 at 3. 15 a. m. on his case being referred by the Medical Officer, Binjharpur P. H. C. It is in the evidence of P. W. 5 that he in his turn had referred the case of the deceased to the S. C. B. Medical College Hospital on 6-9-1978. The evidence of Dr. Das (P. W. 8) shows that the deceased was treated at the S. C. B. Medical College Hospital from 6-9-1978 to 19-9-1978 before he was discharged on 19-9-1978. So there is reliable evidence to show that the deceased was treated for his injuries at Binjharpur P. H. C. , Government Hospital, Jajpur and at the S. C. B. Medical College Hospital, Cuttack. From the F. I. R. the I. O. (P. W. 14) knew that the deceased had sustained multiple injuries during the course of the occurrence. P. W. 14 was in charge of the investigation till 24-6-1979 and the deceased died on 9-4-1979. So the minimum that was expected of the I. O. (P. W. 14) was that he should have taken steps to secure the injury reports of the deceased from the Medical Officer in charge of the hospital where he was treated. The I. O. P. W. 14 stated in his evidence that he did not take any steps to get the injury report either from the Binjharpur P. H. C. or from the Jajpur Government Hospital or even from the S. C. B. Medical College Hospital, Cuttack. P. W. 13 is another I. O. who took part in the investigation of the case. In his evidence he goes to the length of saying that he was not interested to see the injury report in respect of the deceased. P. W. 13 is another I. O. who took part in the investigation of the case. In his evidence he goes to the length of saying that he was not interested to see the injury report in respect of the deceased. P. W. 11 is the I. O. who submitted the chargesheet and his evidence shows that though he realised the importance of the injury report of the Medical Officer, Binjharpur P. H. C. , in respect of the deceased, he had never gone to the hospital to ascertain the availability or otherwise of the injury report and he did not visit either S. C. B. Medical College Hospital, Cuttack, or Jajpur Government Hospital during the course of the investigation. The I. O. P. W. 14 deposed that he gave requisition to Binjharpur P. H. C. in the prescribed printed requisition form for medical examination of the deceased and he sent three copies of the said requisition with the injured to the doctor, but yet he states that he did not make any query to Binjharpur P. H. C. or to the Jajpur Government Hospital or to the S. C. B. Medical College Hospital about the non receipt of the injury report. From the evidence placed on record it is seen that due to the laches of the I. Os. no injury report regarding the injuries sustained by the deceased during the course of the occurrence could be produced before the Court during the course of the trial. There is no acceptable explanation from the side of the I. Os. as to why none of them could secure the injury report regarding the injuries sustained by the deceased during the course of the occurrence. If according to P. W. 14 he gave a requisition for the medical examination of the deceased, the doctor concerned must have given the injury report. The defence suggestion to the O. I. C. , Biniharpur P. S. (P. W. 11) that the injury report was deliberately suppressed reveals that even according to the defence there was an injury report. Considering the circumstances of the case, the trial Court was justified in holding the conduct of the I. Os. to be suspicious in the matter of conducting the investigation of the case. Considering the circumstances of the case, the trial Court was justified in holding the conduct of the I. Os. to be suspicious in the matter of conducting the investigation of the case. In this context the following observations of the Supreme Court in Baladin v. State of U. P. , AIR 1956 SC 181 , are considered relevant and hence quoted below (Para 11) :" Ordinarily accused persons are entitled to challenge the testimony of witnesses examined in Court with reference to the statements said to have been made by them before the investigating police officer. Statements made by prosecution witnesses before the investigating police officer being the earlier statements made by them with reference to the facts of the occurrence are valuable material for testing the veracity of the witnesses examined in Court, with particular reference to those statements which happen to be at variance with their earlier statements; but the statements made during police investigation are not substantive evidence. Hence the record made by a police investigating officer has to be considered by the Court only with a view to weighing the evidence actually adduced in Court. If the police record becomes suspect or unreliable, as in the present case, on the ground that it was deliberately perfunctory or dishonest, it loses much of its value and the Court in judging the case of a particular accused has to weigh the evidence given against him in court keeping in view the fact that the earlier statements of witnesses as recorded by the police is tainted record and has not as great a value as it otherwise would have in weighing all the material on the record as against each individual accused. "the learned counsel for the appellants relied on an unreported decision of this Court Dibakar Nayak v. State of Orissa, Criminal Appeals Nos. 133 and 147 of 1981, decided on 1-7-1985. On a perusal of the judgement in that case it is seen that after considering the evidence on record, this Court did not accept the finding of the trial Court that the investigation carried on by the I. Os. (P. Ws. 36 and 38) in that case was unreliable, perfunctory, dishonest and tainted. That is a decision on its own facts and does not throw any light on the matter of appreciation of the case diary statements in the facts of the present case. (P. Ws. 36 and 38) in that case was unreliable, perfunctory, dishonest and tainted. That is a decision on its own facts and does not throw any light on the matter of appreciation of the case diary statements in the facts of the present case. On the other hand, the above quoted observations of the Supreme Court in Balandin's case (1956 Cri LJ 345) (supra) give some guidelines as to what should be the approach of the Court while considering the case diary statements of witnesses regarding material omissions and contradictions when the police record is found to be suspect or unreliable. The conduct of the Las when they did not evince any interest in the matter of production of injury report of the deceased before the Court reveals that their attitude towards the investigation of the case is such that no reliance can be safely placed on the case diary statements recorded by them. This aspect has to be kept in mind while appreciating the evidence of P. Ws. 1, 2 and 3 in the case. ( 9 ) THE evidence of P. W. 1 shows that on finding the deceased fatally injured and lying at the spot with multiple bleeding injuries, he (P. W. 1) had taken him to Binjharpur P. H. C. and after getting him admitted there he went to Binjharpur police station and reported about the occurrence at 10. 45 p. m. and his report was treated as the F. I. R. in the case. Shortly thereafter the I. O. (P. W. 14) had examined P. W. 1 and recorded his case diary statement. In his cross-examination P. W. 1 frankly admitted that he did not mention about the particulars of the assault on the deceased either in the F. I. R. or before the I. O. as he was not in a proper state of mind. From the reliable evidence regarding the background under which F. I. R. was lodged, there is no reason to disbelieve the version of P. W. 1 that at the time he lodged the F. I. R. and when he was examined by the I. O. soon after, he was in a perturbed state of mind. From the reliable evidence regarding the background under which F. I. R. was lodged, there is no reason to disbelieve the version of P. W. 1 that at the time he lodged the F. I. R. and when he was examined by the I. O. soon after, he was in a perturbed state of mind. The very fact that P. W. 1 did not falsely assert about his having specifically stated in the F. I. R. and before the I. O. that accused Rabi assaulted with a tarwal on the head of the deceased and accused Chaitan assaulted the deceased on his forehead with the tenta, reveals that he is a truthful witness. P. W. 2 stated on oath that he did state before the I. O. about accused Rabi assaulting the deceased with a tarwal on his head and also about accused Chaitan assaulting the deceased by means of a tenta on his head and denied the defence suggestion that he omitted to state about these facts before the I. O. Likewise P. W. 3 asserted on oath that he did state before the I. O. about accused Rabi being armed with a tarwal and about accused Chaitan being armed with a balam at the time of occurrence and denied the defence suggestion that he omitted to state these facts before the I. O. No doubt the said omissions in the evidence of P. Ws. 2 and 3 were proved through the I. O. , but then, for reasons earlier stated not much value can be attached to the statements recorded by the I. O. That apart, the F. I. R. was promptly lodged by P. W. 1 and it contains all the material particulars, in that the names of Rabi Nayak and Chaitan Jena were mentioned amongst the assailants of the deceased and that tarwal (sword) and tenta were the weapons of offence used by the assailants were also mentioned and that the deceased was assaulted on his head, besides other parts of his body, was also mentioned. There is no omission of the above referred material particulars even in the statements of P. Ws. 1, 2 and 3 recorded by the I. O. under S. 161, Cr. P. C. The evidence of P. Ws. There is no omission of the above referred material particulars even in the statements of P. Ws. 1, 2 and 3 recorded by the I. O. under S. 161, Cr. P. C. The evidence of P. Ws. 1, 2 and 3 that accused Rabi Nayak had assaulted the deceased with a tarwal (sword) on his head and that accused Chaitan Jena had assaulted the deceased with the weapon tenta or balam held by him is corroborated by other evidence on record. The evidence of P. Ws. 6 and 10 shows that at the time they reached the spot of occurrence, the accused persons started running away from the place of occurrence after assaulting the deceased. Neither of the two witnesses claim to be an eye-witnesses to the occurrence. It is in the evidence of P. Ws. 6 and 10 that as they reached the spot of occurrence they saw accused Rabi Nayak running away holding a tarwal and they found the deceased lying unconscious with bleeding injuries on his head. The very fact that P. Ws. 6 and 10 did not claim to be eyewitnesses to the occurrence discloses that they wanted to confine their evidence to what they had actually seen on reaching the place of occurrence. So their evidence that they saw accused Rabi Nayak holding a tarwal running away from the place of occurrence at the relevant time can be safely relied on. Their evidence that on reaching the spot they found the deceased lying with bleeding injuries on his head can be safely relied on and the same corroborates the version of P. Ws. 1 and 2 that accused Rabi Nayak had assaulted the deceased with a tarwal and that accused Chaitan Jena had assaulted the deceased with a tenta and the version of P. W. 3 that both the appellants had assaulted the deceased with the weapons held by them. ( 10 ) THE occurrence took place at about 6 p. m. on 4-9-1978. The evidence of P. W. 1 shows that soon after the occurrence the deceased was taken to Binjharpur P. H. C. for treatment. P. W. 5 Dr. Mohanty was the Assistant Surgeon attached to Jajpur Government Hospital in September 1978. He deposed that on 5-9-1978 at 3. The evidence of P. W. 1 shows that soon after the occurrence the deceased was taken to Binjharpur P. H. C. for treatment. P. W. 5 Dr. Mohanty was the Assistant Surgeon attached to Jajpur Government Hospital in September 1978. He deposed that on 5-9-1978 at 3. 15 a. m. he received deceased Biswambar Panda at his hospital on his case being referred to by the Medical Officer, Binjharpur P. H. C. So the evidence of P. W. 5 corroborates the version of P. W. 1 that after the occurrence on that very night the deceased was taken to Binjharpur P. H. C. for treatment P. W. 5 deposed that he found seven injuries on the head of the deceased, that is, 3 injuries on the occipital region, one on the right temporal region, two on the left temporal region and one above the right eye. He stated that all the 7 injuries were stitched at Binjharpur P. H. C. P. W. 5 proves Exts. 2 and 5. Ext. 2 is the letter under which the reference was made by the Medical Officer, Binjharpur and it shows that the seven scalp wounds were stitched at the P. H. C. Ext. 5 is the bed head ticket of Jajpur Government Hospital in respect of the deceased. The recitals in Exts. 2 and 5 support the above oral evidence of P. W. 5. So the reliable evidence of the doctor P. W. 6 to the effect that on receiving the deceased at his hospital on 5-9-1978 at 3. 15 a. m. he found 7 injuries on the head of the deceased fully support the version of P. Ws. 1, 2 and 3 that soon after the assault on the deceased when they rushed to the spot, they found bleeding injuries on the head of the deceased. P. W. 2 deposed that as there was profuse bleeding from the head of the deceased, he wrapped the head of the deceased with his Chadar to stop further bleeding. The said Chadar was identified by him in court and marked as M. O. I. His statement that the said Chadar was seized by the I. O. was not challenged in cross-examination. So the above evidence of P. W. 2 lends support to the version of P. W. 2 that he was also an eyewitness to the occurrence. The said Chadar was identified by him in court and marked as M. O. I. His statement that the said Chadar was seized by the I. O. was not challenged in cross-examination. So the above evidence of P. W. 2 lends support to the version of P. W. 2 that he was also an eyewitness to the occurrence. ( 11 ) AT this stage it is appropriate to consider the specific plea of alibi taken by accused Rabi Nayak. So the evidence of D. Ws. 1, 2 and 3 examined in support of the said plea merits careful consideration. That the defence witnesses are entitled to equal treatment with those of the prosecution, as observed by the Supreme Court in Dudh Nath Pandey v. State of U. P. reported in AIR 1981 SC 911 and relied on by the learned Counsel for the appellants, is an undisputed proposition of law. D. W. 1 was the O. I. C. of Jajpur P. S. who arrested accused Rabi Nayak on 10-11-1978 in connection with this case on receiving a requisition for that purpose from O. I. C. , Binjharpur P. S. D. W. 1 stated that after arresting accused Rabi Nayak he forwarded him to court on 10-11-1978. D. W. 2 was the Sarpanch of Kaspur Grama Panchayat. D. W. 3 was the Block Development Officer of Dasarathpur Block during the relevant period. The gist of the evidence of D. Ws. 2 and 3 is that accused Rabi Nayak was with them from 11 a. m. to 9 p. m. on 4-9-1978, he being engaged along with them in flood relief work. The learned Counsel for the appellants contended that as D. Ws. 2 and 3 are respectable witnesses, their evidence in support of the plea of alibi of appellant Rabi Nayak should have been accepted by the trial Court. ( 12 ) THE evidence of D. W. 2 shows that he was knowing accused Rabi Nayak for the last seven to eight years as a social worker. D. W. 3 Bansidhar Beura was the Block Development Officer of Dasarathpur Block. D. Ws. ( 12 ) THE evidence of D. W. 2 shows that he was knowing accused Rabi Nayak for the last seven to eight years as a social worker. D. W. 3 Bansidhar Beura was the Block Development Officer of Dasarathpur Block. D. Ws. 2 and 3 deposed that on 4-9-1978 at 11 a. m. as they were going to Dasarathpur along with A. D. M. , Cuttack, and others in a jeep, on the way they met Rabi Nayak at Jajpur town when he stopped them and went with them in the same jeep to Dasarathpur for doing relief work. The evidence of D. W. 2 shows that accused Rabi Nayak does not belong to his Grama Panchayat, but he belongs to Champaipal Grama Panchayat and that villages of 2 to 3 other Grama Panchayats are situated in between his Grama Panchayat and Champaipal Grama Panchayat. So it is normally not expected of D. Ws. 2 and 3 that when they would be going with the A. D. M. along with the others in a jeep, they would stop their jeep to pick up accused Rabi Nayak at Jajpur town while inspecting the distribution of flood relief in areas which do not come even within the Grama Panchayat of accused Rabi Nayak. It is in the evidence of D. W. 2 that accused Rabi Nayak was a leader of a political party. D. W. 2 states that he does not belong to any political party. When according to D. W. 2 accused Rabi Nayak was a leader belonging to a political party, the statement of D. W. 3 in chief-examination that he cannot say to which party accused Rabi Nayak belonged reveals that he had not much of acquaintance with him. Under the circumstances the version of D. Ws. 2 and 3 that as they along with the A. D. M. and others were going in a jeep towards Dasarathpur, on the way, accused Rabi Nayak took the liverty of stopping their jeep and getting into it sounds highly improbable. D. W. 2 deposed that he mentioned in his tour diary about Rabi Nayak's presence with them during their tour over the flood affected area on 4-9-1978. If there is any truth in the said version of D. W. 2, he would have produced the said tour diary in court in support of his oral evidence. D. W. 2 deposed that he mentioned in his tour diary about Rabi Nayak's presence with them during their tour over the flood affected area on 4-9-1978. If there is any truth in the said version of D. W. 2, he would have produced the said tour diary in court in support of his oral evidence. It is in the evidence of D. W. 2 that the jeep and the launch in which he claims to have toured the flood affected area on 4-9-1978 are Government vehicles of Dasarathpur Block. D. W. 3 stated that the log books of the jeep and the launch of Dasarathpur Block are being maintained. The evidence of D. Ws. 2 and 3 shows that about 5 or 6 days after the date of occurrence accused Rabi Nayak told them about his being falsely implicated in the case relating to the assault on the deceased and requested them to be witnesses in the case. When few days after 4-9-1978, D. W. 3 knew that he would be figuring as a witness in support of the plea of alibi of accused Rabi Nayak, in the normal course of human conduct, he would have informed the A. D. M. about the false implication of accused Rabi Nayak and he would have also checked up the date when he had allegedly toured with the A. D. M. and accused Rabi Nayak over the flood affected area by referring to the log books and the tour diary. So the evidence of D. W. 3 that he did not pass on the information received from Rabi Nayak about his being falsely implicated in the case to the A. D. M. and that he did not verify the log books and tour diary in order in find out whether the date of occurrence tallied with the date on which the accused was with them, discloses a strange piece of conduct on the part of D. W. 3, which does not fit in with the version of D. W. 3 that he has informed by accused Rabi Nayak about his being falsely implicated in the occurrence of assault which took place on 4-9-1978 and that he was requested to be a witness to prove the falsity of the allegation. ( 13 ) D. W. 1 was the O. I. C. of Jajpur P. S. on the relevant date. ( 13 ) D. W. 1 was the O. I. C. of Jajpur P. S. on the relevant date. It was only on requisition from O. I. C. , Binjharpur P. S. , D. W. 1 arrested accused Rabi Nayak on 10-11-1978. The evidence of D. W. 1 shows that he examined accused Rabi Nayak after arresting him and his statement revealed that he was moving with others in flood relief work and was not present at the scene of occurrence. He claims to have examined the B. D. O. , Dasarathapur on 10-11-1978 before forwarding the accused to court. By the date D. W. 1 arrested accused Rabi Nayak, D. W. 1 knew that the case was being investigated by the O. I. C. Binjharpur P. S. So nothing could have been said against D. W. 1 even if he had merely forwarded the accused to court. But on his own showing D. W. 1 had taken interest in the investigation of the case also, as he claims to have examined some witnesses in the case with reference to the statement of the accused and maintained supplementary case diary. In view of the interest evinced by D. W. 1 in the case, it was normally expected of him that he would have taken care to see that the supplementary case diary allegedly maintained by him would have been passed over to the I. Os. of Binjharpur P. S. D. W. 1 stated in cross-examination that he personally made over the supplementary case diary to the O. I. C. , Binjhapur P. S. and if there is any truth in the said statement then there is no scope for the supplementary case diary being lost anywhere as the O. I. C. , Binjharpur P. S. must have also been aware of the importance of the supplementary case diary and more so, as the O. I. C. , Jajpur P. S. personally handed over the same to him. D. W. 1 further claims to have given a carbon copy of the supplementary C. D. to the Circle Inspector of Police, Jajpur. So if really D. W. 1 prepared any supplementary case diary as claimed by him then the same could have been easily found out and placed before the court. None of the I. Os. examined in the case state about their receiving any supplementary case diary. So if really D. W. 1 prepared any supplementary case diary as claimed by him then the same could have been easily found out and placed before the court. None of the I. Os. examined in the case state about their receiving any supplementary case diary. D. W. 1 stated in cross-examination that he does not remember if he sent a copy of the supplementary case diary to court while forwarding accused Rabi Nayak. It is in the evidence of D. W. 1 that he examined the B. D. O. (D. W. 3) before forwarding the accused to the court and if there is any truth in that evidence then the statement of the B. D. O. would have also been sent to the court along with the forwarding report. But from the relevant order-sheet of the court it is seen that no statement of either the accused or any witness was sent along with the forwarding report by D. W. 1. D. W. 2 is an ace witness for the defence and if the accused was with him on the relevant day, the accused would have definitely stated about it to D. W. 1 at the time of his arrest and D. W. 1 would not have omitted to specifically mention about it in the forwarding report Ext. B. But peculiarly enough in the forwarding report Ext. B there is no specific reference to D. W. 2 at all. When in the forwarding report Ext. B mention of the A. D. M. and D. W. 3 was expressly made, omission of an express reference to D. W. 2 as well in Ext. B is somewhat conspicuous. D. W. 1 claims to have examined D. W. 3 before the submission of the forwarding report, but strangely enough he did not choose to examine the A. D. M. at any time though the accused claimed before him that he was present with D. Ws. 2 and 3 and the A. D. M. on the date of occurrence. Considering the nature of the evidence of D. W. 1 in the facts and circumstances of the case, it is difficult to believe his version that he had examined D. Ws. 2 and 3 and prepared a supplementary case diary in connection with the case. 2 and 3 and the A. D. M. on the date of occurrence. Considering the nature of the evidence of D. W. 1 in the facts and circumstances of the case, it is difficult to believe his version that he had examined D. Ws. 2 and 3 and prepared a supplementary case diary in connection with the case. In this context the admission of D. W. 1 that accused Rabi Nayak often used to come to the police station in connection with many other cases as a local leader and he had occasion to come in contact with him is not without significance. ( 14 ) THE occurrence took place on 4-9-1978. It is in the evidence of the I. O. (P. W. 14) that his attempt to arrest the accused persons failed as they remained absconding. Evidently the I. O. (P. W. 14) proceeded with the investigation of the case on the basis of the F. I. R. (Ext. 1) wherein the name of accused Rabi Nayak was mentioned. On 7-9-1978 P. W. 14 arrested some of the accused persons as stated by him. It is in the evidence of P. W. 14 that on 9-9-1978 he arrested some more accused persons. When accused Rabi Nayak adduced evidence through D. Ws. 2 and 3 that 5 or 6 days after 4-9-1978 he informed them about his implication in the case, it can be safely inferred that accused Rabi Nayak knew about his being implicated in the case shortly after the lodging of the F. I. R. From the evidence of P. W. 14 it is seen that on the basis of the F. I. R. lodged in the case, he was making attempts to arrest the accused persons mentioned therein including accused Rabi Nayak. But then the evidence of the O. I. C. of Jajpur P. S. (D. W. 1) shows that he arrested accused Rabi Nayak only on 10-11-1978 and that too, on the strength of the requisition received by his from the O. I. C. of Binjharpur P. S. From the above circumstances, the only reasonable inference is that accused Rabi Nayak successfully evaded arrest till 10-11-1978, i. e. for more than two months since the date of occurrence. According to accused Rabi Nayak, he was falsely implicated in the case and that he was in the company of the Block Development Officer (D. W. 3), Sarpanch of Kaspa Grama Panchayat (D. W. 2), the A. D. M. , Cuttack and others, and was engaged along with them in the supervision of the relief work by going with them to different places in Kaspa G. P. and Mallikpur G. P. from 11 a. m. to 8 p. m. on 4-9-1978. D. Ws. 2 and 3 have also supported the said plea of alibi of accused Rabi Nayak. , From the F. I. R. it is seen that serious charges such as, rioting and attempt to commit murder, were levelled against accused Rabi Nayak. From the evidence of D. Ws. 2 and 3 it is seen that accused Rabi Nayak informed them, within 5 to 6 days from 4-9-1978, about his being falsely implicated in the case in relation to the occurrence which took place on 4-9-1978, on serious charges of rioting and attempt to commit murder. According to D. Ws. 2 and 3, accused Rabi Nayak was with them on 4-9-1978 from 11 a. m. to 8 p. m. and so they must have been certain that the allegation that accused Rabi Nayak took part in the occurrence which took place at village Sainkul at about 6 p. m. on 4-9-1978 is patently false as he was moving with them and the A. D. M. , Cuttack and others at the relevant time visiting the areas far remote from the scene of occurrence and accused Rabi Nayak and D. Ws. 2 and 3 needed no effort to convince even the A. D. M. , Cuttack about it. As earlier stated, the evidence of D. Ws. 2 and 3 discloses that accused Rabi Nayak was quite familiar with D. Ws. 2and 3 and the A. D. M. as he took the liberty of stopping their jeep at Jajpur to join with them. Considering this background, accused Rabi Nayak had every right to expect that D. Ws. 2 and 3 and the A. D. M. should help him to expose the utter falsity of the charges levelled against him and the D. Ws. Considering this background, accused Rabi Nayak had every right to expect that D. Ws. 2 and 3 and the A. D. M. should help him to expose the utter falsity of the charges levelled against him and the D. Ws. 2 and 3 and the A. D. M. had also a duty to see that an innocent and honest citizen was not falsely implicated in a criminal case on serious charges. D. W. 2 was an O. A. S. officer and so he must have known what he was expected to do on being informed by accused Rabi Nayak about his being falsely implicated in the case 5 or 6 days after the date of occurrence, When D. Ws. 2 and 3 and the A. D. M. came to know, through accused Rabi Nayak that he was falsely implicated in a criminal case and they are convinced about the truth of it, it is expected of them as responsible citizens that they would voluntarily go to the I. O. in charge of the investigation of the case and inform him that accused Rabi was all along with them during the material part of the relevant day and so the allegation that he took part in the occurrence is false. As earlier stated, it is in the evidence of D. W. 1 that accused Rabi Nayak used to often go to the police station at Jajpur in connection with many other cases and was a local leader and so he is not like a village rustic who keeps away from a police station as he is apprehensive of the police. So if accused Rabi Nayak was falsely implicated in the case as alleged by him, it is normally expected of him that no sooner he comes to know about such false implication than he would have rushed to the police station and cited D. Ws. 2 and 3 and the A. D. M. and others with whom he was engaged in the relief work at the relevant time as witnesses and more so, as there was no reason for him to doubt that D. Ws. 2 and 3 and the A. D. M. would not support his plea of alibi. But peculiarly enough instead of going to the police officer in charge of the investigation of the case, along with D. Ws. 2 and 3 and the A. D. M. would not support his plea of alibi. But peculiarly enough instead of going to the police officer in charge of the investigation of the case, along with D. Ws. 2 and 3 and the A. D. M. and others, soon after coming to know of the charges levelled against him. He evaded the arrest for more than two months and even thereafter he never courted arrest. It is only after he was arrested he came forward with his plea of alibi. So, in the facts of the present case, the conduct of the accused Rabi Nayak in evading arrest for more than two months is so highly suspicious that the same is not consistent with his plea of innocence. There is no acceptable explanation from the side of accused Rabi Nayak as to why he did not canvass his plea of alibi at the earliest opportunity before the I. O. when there are officers like D. W. 3 and the A. D. M. to support his plea. The conduct of accused Rabi Nayak discloses that he was never confident about his plea of alibi and he was apprehensive that the same would not be believed even if supported by D. Ws. 2 and 3. Considering all aspects of the matter, I agree with the finding of the trial court that the plea of alibi pleaded by accused Rabi Nayak is false and that D. Ws. 2 and 3 are not speaking the truth. When they supported the plea of alibi of accused Rabi Nayak in their evidence. ( 15 ) AS the plea of alibi of accused Rabi Nayak is found to be false, it is a circumstance which very much weighs against him. Even ignoring his plea of alibi, as earlier discussed, there is reliable evidence to show that the appellants had assaulted the deceased on his head with the weapons held by them. As earlier stated, the reliable evidence of the doctor P. W. 5 that he found 7 injuries on the head of the deceased when he examined him on 5-9-1978 at 3. 15 a. m. fully corroborates the evidence of the eye-witnesses that the deceased was assaulted on his head by the appellants with the weapons held by them. As earlier stated, the reliable evidence of the doctor P. W. 5 that he found 7 injuries on the head of the deceased when he examined him on 5-9-1978 at 3. 15 a. m. fully corroborates the evidence of the eye-witnesses that the deceased was assaulted on his head by the appellants with the weapons held by them. It is relevant to consider at this stage whether it could be definitely said that the injuries sustained by the deceased on his head was the proximate cause of his death. The occurrence of assault on the deceased took place on 4-9-1978. From the evidence it is seen that the deceased was admitted in the S. C. B. Medical College Hospital on 6-9-1978 for treatment and he was discharged on 19-9-1978. The very fact that the deceased was discharged from the hospital on 19-9-1978 reveals that the doctor who was attending on him considered that the condition of the deceased was no longer critical and he was free from danger. Doctor (P. W. 8) of S. C. B. Medical College Hospital stated that the deceased had again come to the hospital on 6-11-1978 for follow up treatment. The evidence of P. W. 8 shows that the deceased was again admitted into the Neuro Surgical Department of the hospital on 3-12-1978 and he was discharged on 27-12-1978. The evidence of P. W. 8 shows that on 7-3-1979 as the case of the deceased was referred by Jajpur Government Hospital the deceased was again admitted in the Neuro Surgical Department of the hospital. The statement of the doctor P. W. 8 that by that date there was no sign of meningitis is quite significant. P. W. 8 stated that on 26-3-1979 some operation was conducted on the deceased but in spite of it, the condition of the patient deteriorated and that on 28-3-1979 a major operation was conducted on him and it was on 9-4-1979 the patient expired. In the bed-head ticket Ex. 12 the death of the patient was noted to have taken place due to respiratory failure. The doctor P. W. 8 stated that the death of the deceased was due to meningitis although it has not been specifically noted in any of the documents of the hospital. In the bed-head ticket Ex. 12 the death of the patient was noted to have taken place due to respiratory failure. The doctor P. W. 8 stated that the death of the deceased was due to meningitis although it has not been specifically noted in any of the documents of the hospital. P. W. 9, the doctor who conducted the post mortem examination, stated in cross-examination that after the post-mortem examination as it was not possible to give any opinion about the cause of death of the deceased, he sent the brain substance to the Pathological Department for histo-pathological study. He deposed that meningitis may develop even without any injury. It is in his evidence that it was on the basis of the finding of the histo-pathological study he opined that the death was due to fungal meningitis mostly affecting the basal region or the brain, morphology of fungal body suggestive of aspergelleus infection. Considering the circumstance that the deceased sustained the head injuries on 4-9-1978 and although admitted in the hospital for treatment, he was discharged from the hospital on two occasions, that is, on 19-9-1978 and 27-12-1978, and that on 7-3-1979 when he was admitted for the third time he had no signs of meningitis, I am of the view that it cannot be held with certainty that the death of the deceased was solely due to the injuries sustained by him on 4-9-1978. In order that a person should be guilty of culpable homicide it is indispensible that the death of deceased should be connected with the act of violence or other primary cause not merely by a chain of causes and effect, but by such direct influence as is calculated to produce the effect without the intervention of any considerable change of circumstances. Considering the evidence placed on record, I find that the prosecution has not been able to prove satisfactorily that the persons who assaulted the deceased on 4-9-1978 were guilty of culpable homicide. ( 16 ) THE evidence of Dr. Mohanty (P. W. 5) shows that X-ray photos of lateral view of the skull and of the left fore-arm were taken at the Jajpur Hospital under his supervision. He states that no injury was found on the skull. He found that there was a fracture of the lower and of the ulna on the left side. Ext. Mohanty (P. W. 5) shows that X-ray photos of lateral view of the skull and of the left fore-arm were taken at the Jajpur Hospital under his supervision. He states that no injury was found on the skull. He found that there was a fracture of the lower and of the ulna on the left side. Ext. 4 is the X-ray finding of P. W. 6 which bears the date 5-9-1978. P. W. 8, the Assistant Professor of Neuro Surgery, S. C. B. Medical College, stated with reference to the discharge certificate marked Ext. 9 issued to the patient on 19-9-1978 that on X-ray examination multiple fractures of the skull were detected. He stated that both the lateral view and A. P. view of the skull of the deceased were taken and that the fracture will be noticed in either of the two views. The doctor P. W. 5 had taken only the lateral view of the skull. From the evidence it is not clear how P. W. 5 could not notice any fracture, though it was mentioned in the discharge certificate that the deceased had multiple fractures on his skull. Dr. Patra P. W. 9 on post-mortem examination of the deceased, found an old depressed fracture on the right side of the occipital bone. From the above evidence it can be safely held that the assault on the deceased on 4-9-1978 resulted in a fracture of his skull and a fracture of his left fore-arm. As earlier found, there is convincing evidence to show that the deceased sustained multiple injuries on his head due to the assault on him on the relevant evening. But as no injury reports regarding those injuries were available, none of the Medical Officers examined in the case were examined regarding the nature of those injuries. There is nothing in the evidence of the doctor to show that none of the injuries found on the head of the deceased could be caused by a sword or a Balam or a tenta. In this context it is relevant to quote the following observations of the Supreme Court in Solanki Chimanbhai Ukabhai v. State of Gujarat, AIR 1983 SC 484 :-"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. In this context it is relevant to quote the following observations of the Supreme Court in Solanki Chimanbhai Ukabhai v. State of Gujarat, AIR 1983 SC 484 :-"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. " ( 17 ) THROUGH the evidence of P. Ws. 1 to 3 the prosecution has satisfactorily proved that accused Rabi Nayak with a talwar and accused Chaitan with a tenta had assaulted the deceased on his head. From the evidence of P. Ws. 1, 2 and 3 the only safe conclusion is that each of the appellants had dealt a blow on the head of the deceased with the weapon held by him. From the evidence of P. W. 5 it is seen that the deceased had sustained seven injuries on his head. As earlier stated, as the injury reports are not available, the Medical Officers, who figured as prosecution witnesses, could not be examined regarding the nature of the injuries sustained by him. The doctor, who conducted the post-mortem examination over the dead body of the deceased (P. W. 9) found only one depressed fracture on the right side of the occipital bone. From the evidence available on record, it cannot be said with certainty that the assault on the deceased by the appellants with the weapons held by them had resulted in any fracture of the skull bones of the deceased. Considering the nature of the evidence and in view of the absence of the injury reports, it could only be held that the prosecution has satisfactorily proved that the appellants had voluntarily caused hurt to the deceased by assaulting him with the weapons held by them. Considering the nature of the evidence and in view of the absence of the injury reports, it could only be held that the prosecution has satisfactorily proved that the appellants had voluntarily caused hurt to the deceased by assaulting him with the weapons held by them. ( 18 ) ON a careful analysis of the entire evidence on record, as discussed above, I find that though the prosecution has failed to prove its case satisfactorily against the appellants under Section 304, Part I, I. P. C. , yet it could successfully establish that the appellants were guilty of the offence under Section 324, I. P. C. as they voluntarily caused hurt to the deceased with the deadly weapons held by them. Considering the facts and circumstances of the case, I think sentencing each of the appellants to undergo rigourous imprisonment for a period of two years would sufficiently meet the ends of justice. ( 19 ) IN the result, the order of conviction and sentence passed by the trial Court against the appellants under Section 304, Part I, I. P. C. is hereby set aside. However, the appellants are found guilty of the offence under Section 324, I. P. C. and each of them is convicted and sentenced thereunder to undergo rigorous imprisonment for a period of two years. The order of conviction and sentence passed by the trial Court is modified to that extent and accordingly Criminal Appeal No. 58 of 1986 is partly allowed. ( 20 ) GOVERNMENT Appeal No. 59 of 1982 is dismissed. Order accordingly.