D. M. PATNAIK, J. ( 1 ) THESE two appeals arise out of a common judgment dated 2-2-1988 of the Additional Sessions Judge, Parlakhemundi in a case under S. 302, I. P. C. The learned Additional Sessions Judge having convicted appellant Prashant Pradhan under S. 302 and appellants Bijaya Ananda and Yenkata Rama Rao under S. 302 read with S. 109 of the Indian Penal Code and having sentenced all of them to undergo imprisonment for life, they are in appeal. ( 2 ) PROSECUTION case is, deceased Basanta Ananda and some others of his village were antagonistic towards appellant Bijaya Ananda during the preceding Grama Panchayat election. It was alleged that the occurrence was on account of this bad blood between the two rival groups. On 22-10-1985 at about 2 p. m. , deceased Basanta Ananda was proceeding from his village towards village Tabarada to purchase some grocery articles with a bag in his hand. A little distance before village Janapada on the main road leading from Parlakhemundi to R. Udayagiri, when the deceased reached near a Bahada tree, it was alleged that these appellants along with 7 others reached the place from the opposite direction. When they saw the deceased, appellant Bijaya Ananda asked the other persons to finish up the deceased. At this appellant Yenketa Rama Rao who was holding an axe in his right hand, handed over the same to appellant Prashant Pradhan who thereafter dealt a blow with the same on the head of deceased Basanta Ananda who fell down on the road with a bleeding injury and subsequently, appellant Prashant dealt a second blow on the back of the neck of the deceased who died at the spot. P. Ws. 2, 10 and 12 were witnessing the occurrence from a distance while sitting under a Karanja tree. Two of the witnesses, out of fear, ran towards the jungle and the other, namely Nahasan Singh (P. W. 2) went back to the village of the deceased and informed his father. Later the father of the deceased and other villagers reached the place and found the dead body of Basanta Ananda lying on the road. P. W. 11 Bibhisana Ananda, father of the deceased lodged the report at the R. Udayagiri Police Station. Later the father of the deceased and other villagers reached the place and found the dead body of Basanta Ananda lying on the road. P. W. 11 Bibhisana Ananda, father of the deceased lodged the report at the R. Udayagiri Police Station. The investigating officer registered the case, took up investigation and after observing all formalities with regard to the investigation and having found a prima facie case of murder, submitted charge-sheet under Ss. 302/109/34, I. P. C. and that is how the appellants on trial were convicted as mentioned above. ( 3 ) THE appellants in their 313 statements denied the prosecution case. Appellant Yenkata Rama Rao took the plea of alibi stating that on the date of occurrence he was admitted in the Guma hospital as an indoor patient ( 4 ) MR. Rath, learned counsel appearing for the appellants strenuously urged that the prosecution has failed to prove the case beyond reasonable doubt. The learned counsel pointedly commented on the credibility of the witnesses because of their interestedness and urged even assuming their presence at the spot is believed, he submitted that the distance between the place of assault and the place of their witnessing the occurrence was such that it could not have been possible on their part to either hear as to what conversation transpired among the two appellants Prashant and Yenkata Rama Rao or to see the assault part. The learned Additional Government Advocate, on the other hand, submitted that the prosecution having been able to prove the case of murder beyond reasonable doubt against all the appellants, the conviction and sentence should not be set aside. ( 5 ) PROSECUTION examined as many as 13 witnesses and appellant Yenakta Rama Rao from his side examined the Doctor of Guma hospital as D. W. 1. The prosecution relied mainly on the evidence of material witnesses like the Doctor (P. W. 1) who conducted the post-mortem examination and P. Ws. 2, 10 and 12, the three eye witnesses to the occurrence and the conduct of appellant Prashant producing the blood stained axe at the police station immediately after the occurrence. ( 6 ) THAT Basant Ananda died a homicidal death has been amply proved from the materials on record, particularly the evidence of the Doctor (P. W. 1) who conducted the post-mortem examination and proved the post-mortem examination report (Ext. 1 ). ( 6 ) THAT Basant Ananda died a homicidal death has been amply proved from the materials on record, particularly the evidence of the Doctor (P. W. 1) who conducted the post-mortem examination and proved the post-mortem examination report (Ext. 1 ). On external examination of the dead body, the Doctor found that the condition of the dead body was fresh. He further found follows:-- (I) One cut injury on the left side back the neck of the size of 6" x 4" x 4"; (ii) A cut injury of the size of 4" x 3" x 3" the right side back of the neck, and (iii) One cut injury 4" x 3" x 3" on the left side of the occipital region. On dissection, the scalp and the skull were found to have been cut 4" on the occipital side, the 3rd and the 4th cervical vertebra was found to have been cut. The brain matters over the occipital region had come out. The spinal cord was cut at the cergical region. The cause of death was due to the damage to the carotid artery and veins, and injury to the brain and the spinal cord. The dimension of the injuries inflicted on the vital part of the body damaging the major arteries, veins and brain matters sufficiently prove the homicidal nature of death. The evidence of the Doctor confirms to his opinion as per the post-mortem examination report (Ext. 1 ). Thus the evidence and the report of the Doctor sufficiently prove the homicidal nature of the death of the deceased and, therefore, the finding of the learned Additional Sessions Judge that Basanta Ananda died a homicidal death is confirmed. The next point for consideration is whether the appellants were responsible for the above death. ( 7 ) P. WS. 2, 10 and 12 are the three eye witnesses to the occurrence. The material part of the evidence of P. W. 2 is that, on the date of occurrence he along with P. Ws. 10 and 12 had been to purchase some grocery articles from the shop of one Kumuti near village Janapada which was by the side of the main road leading from R. Udayagiri to Parlakhemundi, and this was sometime prior to 2 p. m. Since the shop was closed, they sat under a Karanja tree by the side of the main road. It was about 2 p. m. when all the three witnesses found deceased Basanta Ananda going towards village Tabarda carrying a bag in his hand. When the deceased reached near the Bahada tree, the three appellants and his other associates (since acquitted) came from the opposite direction. On seeing Basanta Ananda, appellant Bijaya Ananda told the other appellants that here the fellow has come and he should be finished. At this, appellant Yenkata Rama Rao who was holding an axe handed over the same to appellant Prashant and all the other appellants asked appellant Prashant to finish him. At this, appellant Prashant dealt an axe blow on the back side of the neck of the deceased as a result of which he fell down on the road. After the deceased fell down, appellant Prashant gave a second blow on the left side of the back of his head. After this all the appellants along with other accused persons (since acquitted) left the place. He stated in para 3 of his examination-in-chief that the place of occurrence was visible to the place where they were sitting and the road at that place was straight. They did not come to the place of occurrence i. e. the place where the injured was lying. He came to the village and narrated the incident to the father of the deceased and also to other villagers. Thereafter, all of them proceeded towards the place of occurrence. On reaching the spot, they found deceased Basanta Ananda to have already died. There were blood patches on the road. All of them went to R. Udayagiri police station where the father of the deceased (P. W. 11) lodged the F. I. R. In para 6 he stated that none of them shouted at the time of assault and this was out of fear as the accused persons were armed with weapons and they were more in number. He identified the axe (M. O. I.) while stating that appellant Prashant dealt blows with that Tangia. In the cross-examination, P. W. 2 stated that the place where the village road from lenge touches, the main P. W. D. road would be about one kilo-meter from the place where they were sitting. They did not purchase the grocery articles on that day. In the cross-examination, P. W. 2 stated that the place where the village road from lenge touches, the main P. W. D. road would be about one kilo-meter from the place where they were sitting. They did not purchase the grocery articles on that day. Village Tabarada would be at a distance of more than one kilometre from the place where they were sitting at the time of occurrence. Tabarada is a big village and there were shops in the village. He and the other two witnesses started from their village at about 12 noon and the occurrence took place at about 2 p. m. They sat under the Karanja tree by the side of the road for about one hour waiting for arrival of the Kumuti to open the shop. They were not in urgent need of the grocery articles. He admitted that Nimrodh Lima then was the Secretary of the Tabarada Grama Panchayat. He denied the suggestion that he and the deceased party belonged to the group of Nimrodh Lima. The appellants had seen them sitting under the tree by the side of the road. He further confirmed that he had seen the M. O. I from the place where he was sitting and also the assault on the deceased. Some suggestions were made to him from the defence side that the F. I. R. (Ext. 1) was subsequently manipulated to rope in the appellants falsely in this case. As we find, nothing substantial has been elicited in the cross-examination to discard the evidence of this witness. P. Ws. 10 and 12 in all material particulars corroborated the evidence of P. W. 2. Both of them stated to have been there with P. W. 2 under the Karanja tree at the time of the occurrence. P. W. 10 stated that the shop of the Kumuti was by the side of the road at a distance of about 40 cubits from village Janapada. That shop was dosed for which they waited under the Karanja tree. According to him, the place where they were sitting, i. e. the Karanja tree, was at a distance of about 200 cubits from the place where the occurrence took place and the place of occurrence was clearly visible to the place where they were sitting. He fully corroborated the assault part in the manner stated by P. W. 2. According to him, the place where they were sitting, i. e. the Karanja tree, was at a distance of about 200 cubits from the place where the occurrence took place and the place of occurrence was clearly visible to the place where they were sitting. He fully corroborated the assault part in the manner stated by P. W. 2. He himself and P. W. 12, out of fear, remained inside the jungle and further stated that it was P. W. 2 alone who went back to village Lenge to inform the father of the deceased. So also the evidence of P. W. 12 proved that deceased Basanta was assaulted by appellant Prashant with the axe held by appellant Yenkata Rama Rao and that appellant Prashant dealt an axe blow on the neck of the deceased as a result of which, he fell down on the ground and immediately thereafter, he dealt the second blow on the left side back of his head near the left ear. After the occurrence, out of fear, he himself and P. W. 10 instead of going to the village concealed themselves inside the forest and P. W. 2 went back to village Lenge to inform the incident. After other villagers came, he and P. W. 10 along with others went to the spot and found the deceased lying in a pool of blood on the middle of the main road at a distance of 3 to 4 cubits from the Bahada tree. There is nothing to disbelieve the testimony of this witness. These three witnesses named above are found to be in no way inimically disposed towards the appellants nor they are related to the deceased. On going through the evidence of these three eye witnesses we have least hesitation to accept their evidence as true and natural. In the facts and circumstances of the case, the presence of these three witnesses at the place of occurrence cannot be disbelieved. It was strenuously urged by the learned counsel for the appellants that P. W. No. 2 stated that the distance between the place of occurrence and the Karanja tree under which P. Ws. 2, 10 and 12 were sitting was 300 yards and, therefore, according to the learned counsel, it can hardly be believed that these witnesses were not in a position to witness the occurrence and narrate the manner of assault in detail. 2, 10 and 12 were sitting was 300 yards and, therefore, according to the learned counsel, it can hardly be believed that these witnesses were not in a position to witness the occurrence and narrate the manner of assault in detail. This part of argument has been dealt with by the learned Additional Sessions Judge in the judgment. The learned Additional Sessions Judge has observed that P. W. 2's assessment of the distance in yards may be a mistaken one. But as for ourselves, on going through the evidence of the investigating officer (P. W. 13), we find that the investigating officer measured the distance with a measuring tape and found the distance between the Karanja tree and the place of occurrence i. e. the place from which the investigating officer seized the blood stained earth near the Bahada tree, to be 355 feet. We have also verified this from the case diary of the investigating officer in which he has mentioned this distance. Therefore, in this regard, the evidence of the investigating officer as to the exact distance has to be accepted as 355 feet thereby giving preference to that of the evidence of P. W. 2 which can be said to be an approximate distance given by a villager having little idea with regard to measurement of distance in yard. P. W. 10 has stated the distance to be 200 cubits and this rather corroborates the evidence of the investigating officer since 200 cubits normally measure 300 feet (1 cubit = 1 1/2 feet ). Therefore, we have no manner of doubt that the appellants who were well known to P. Ws. 2, 10 and 12 were duly identified from that distance while assaulting the deceased. That apart, the occurrence took place at 2 p. m. and, therefore, we are unable to accept the submission of the learned counsel for the appellants, that the eye-witnesses were not able to see the occurrence from that distance. We agree with the finding of the learned Additional Sessions Judge in this regard who has relied on the decision reported in (1985) 59 Cut LT 311, Patal Dungdung v. State, in which case a Bench of this Court has accepted the theory of proper identification of accused persons with particular features from a distance of 110 yards. We agree with the finding of the learned Additional Sessions Judge in this regard who has relied on the decision reported in (1985) 59 Cut LT 311, Patal Dungdung v. State, in which case a Bench of this Court has accepted the theory of proper identification of accused persons with particular features from a distance of 110 yards. ( 8 ) IT is established in the evidence of the investigating officer (P. W. 13) vide para 2 of his examination-in-chief that at 4. 15 p. m. appellant Prashant appeared at the police station with an axe stained with blood and stated to have committed the murder of deceased Basanta Ananda on the P. W. D. road near village Janapada and that he wanted to surrender at the police station. The investigating officer made station diary entry No. 360 dated 22-10-85. He arrested the accused and seized the axe under seizure list (Ekt. 3) in presence of the witnesses. The investigating officer identified the axe (M. O. I ). After excluding the confessional part of the statement made to the officer in-charge by appellant Prashant which is inadmissible, his conduct in producing the blood stained axe at the police station immediately after the occurrence is a telling circumstances against him and thus relevant under S. 8 of the Evidence Act. This fact lends corroboration to the evidence of the eye witnesses already mentioned above with regard to the identity of the axe and the assault with the same. The seizure of the axe on production by appellant Prashant further strengthens the prosecution case since on examination of the serologist report (Ext. 12) it is found that the axe so produced by appellant Prashant was stained with human blood of 'a' group which also tallied with the same blood group, i. e. the group 'a', which war found on the blood stained shirt seized from the possession of the accused (Ext. 4 ). There has been no explanation to this when so asked to appellant Prashant in his examination under S. 313 Cr. P. C. ( 9 ) THE other appellants i. e. Yenketa Rama Rao and Bijoy Ananda have been held for abetting the offence punishable under S. 302. 4 ). There has been no explanation to this when so asked to appellant Prashant in his examination under S. 313 Cr. P. C. ( 9 ) THE other appellants i. e. Yenketa Rama Rao and Bijoy Ananda have been held for abetting the offence punishable under S. 302. I. P. C This finding of the learned Additional Sessions Judge is based on the evidence of the prosecution witnesses that it was appellant Bijoy Ananda who asked the other appellants to stiffle the life of deceased Basanta Ananda and thereafter, appellant Yenketa Rama Rao handed over the axe (M. O. I) to appellant Prashant who dealt the fatal blows already mentioned above. This is the only evidence available against these two appellants. As already held by us in the foregoing paragraphs, we have no manner of doubt that the three eye-witnesses were in a position to see the assault by appellant Prashant with M. O. I from the distance already mentioned above. But, however, we express a doubt that it would have been possible on the part of these witensses to hear the conversation between appellant Bijoy Ananda on the one hand and appellants Prashant and Yenketa Rama Rao on the other, expressing an intention to kill deceased Basanta Ananda. Further it will also not be safe to rely on the evidence of the prosecution witnesses that appellant Prashant only after hearing from appellant Bijoy Ananda dealt the fatal blows and that appellant Yenketa Rama Rao voluntarily handed over the weapon. The distance between the Bahada tree and the Karanja tree has been proved to be 355 feet. We have no other satisfactory evidence that the above conversation among the three appellants was audible from that distance to the three eye witnesses. Therefore, in the absence of any satisfactory evidence against appellants Bijoy Ananda and Yenketa Rama Rao that they instigated and assaulted appellant Prashant to kill deceased Basanta Ananda, we have no hesitation to record an order of acquittal so far as these two appellants are concerned though, as has already been held, the act perpetrated by appellant Prashant has been amply proved. ( 10 ) IN the result, therefore. Jail Criminal Appeal No. 72 of 1988 is allowed. The order of conviction and sentence are set aside and appellant Bijoy Ananda, if in custody, be set at liberty. ( 10 ) IN the result, therefore. Jail Criminal Appeal No. 72 of 1988 is allowed. The order of conviction and sentence are set aside and appellant Bijoy Ananda, if in custody, be set at liberty. Criminal Appeal No. 108 of 1988 is dismissed against appellant Prashant Pradhan and the conviction and sentence imposed are confirmed whereas, appellant Yenketa Rama Rao, for the reasons stated above, is acquitted of the charge, the appeal being allowed in his favour and he be set at liberty. ( 11 ) G. B. PATNAIK, J. :- I agree. Order accordingly.