A. PASAYAT,J, J. ( 1 ) GOKULA Pradhan (hereinafter referred to as the accused) faced trial along with one Surendra Pradhan under Sections 302/34 I. P. C. and under Section 307/34 I. P. C. Two other persons namely Aintha Dei and Seeta Bewa stood charged under Sections 302/109 and 307/109 I. P. C. The learned Second Additional Sessions Judge, Pun, acquitted the two females, but held both accused Gokula and Surendra guilty under Sections 302/34 and 326/31 I. P. C. He convicted and sentenced each one of them to imprisonment for life under Section 302/34 I. P. C. and further to undergo rigorous imprisonment for seven years under Sections 326/34 I. P. C. ( 2 ) THE prosecution case, in brief, is that Shankar Jena (P. W. 1) (hereinafter also referred to as theinjured) after his marriage with Kuntala Dei (P. W. 6) was staying in village Ladukeswarprasad by constructing a house to the South of his father-in-laws house. His younger brother Chakradhara Jena (hereinafter described as deceased) was also staying with him. Accused Surendra and Gokula are brothers, and Aintha Dei and Seeta were their mother and sister respectively. Surendra and Gokula had gone to Kashmir and in their absence, Shankar had developed illicit relationship with Ratani, the unmarried younger sister of his wife Kuntala (P. W. 6 ). After coming to know of this illicit relationship, Kuntala sent away her sister to her another sisters house. After Surendra and Gokula returned from Kashmir, they were angry with Shankar, and were not in talking terms with him. On 18. 6. 1985 at about 10 A. M. Shankar was returning from the house of one Bidyadhar Pradhan, and while he was passing by the side of their house, accused Gokula and Surendra caught hold of him from behind and took him near a Sal log lying close-by and made him to lie thereon. Aintha Dei and Seeta Bewa handed over a lathi and a katuri to them. While the accused Surendra pressed Shankar down, accused Gokula gave blows on his left hand, with the Katuri and inflicted cut injuries on his right hand also. The left fore-arm was almost chopped off. When Shankar cried for help, the deceased arrived and intervened. But, he was caught hold of by accused Gokula, and Surendra dealt a lathi blow on his head as a result of which he fell down. The left fore-arm was almost chopped off. When Shankar cried for help, the deceased arrived and intervened. But, he was caught hold of by accused Gokula, and Surendra dealt a lathi blow on his head as a result of which he fell down. Accused Gokula then inflicted cut injuries with the Katuri on both the hands of the deceased. In the meantime, Shankar got up and ran inside the house of Ananda Panda which is nearby. As a result of assaults on him, deceased died at the spot. P. W. 6 after seeing the occurrence, lodged the First Information Report at Sarankul Police Station. Injured was also brought to the Police Station by some villagers. The Officer-in-charge recorded the F. I. R. , examined the informant and the other witnesses and sent the injured to Sarankul Hospital for examination. Subsequently injured was taken to Nayagarh hospital for treatment and his left arm was amputed. At 7 P. M. the Investigating Officer left for the place of occurrence and found the dead body lying in the drain in front of the house of accused. Certain seizures were made and after investigation charge sheet was submitted. ( 3 ) THE accused persons denied the allegations and according to them, the deceased appeared at the scene with a Tangia and P. W. 1 with a Barahee with intention to assault them, and thereafter there was some disturbance. ( 4 ) THIRTEEN witnesses were examined to further the prosecution case. P. Ws. 1, 5 and 6 were stated to be witnesses to the occurrence. As indicated above, P. W. 1 is the injured, P. W. 6 is his wife and sister of the accused and Sanju Dei (P. W. 5) is the sister of the injured. On consideration of the evidence on record, the learned trial Judge found accused Gokula and Surendra guilty and convicted and sentenced them as aforesaid while the two female accused persons were acquitted. ( 5 ) IN this appeal, the learned counsel for the accused Gokula has submitted that the evidence of P. Ws. 1, 5 and 6 is so discrepant that no credence can be put on it. The learned counsel for the State, on the other hand, has submitted that the evidence is credible and no material discrepancy has been indicated warranting any interference. 1, 5 and 6 is so discrepant that no credence can be put on it. The learned counsel for the State, on the other hand, has submitted that the evidence is credible and no material discrepancy has been indicated warranting any interference. ( 6 ) ON hearing the learned counsels for the parties and on perusal of the evidence on record, we find that in fact there is discrepancy so far as the assault on deceased Chakradhar is concerned. Injured (P. W. 1) did not state before the Investigating Officer (P. W. 10) to have seen the assault on Chakradhar. His statement was to the effect that accused Gokula had dealt a lathi blow on the head of the deceased, and thereafter he had run away out of fear to the house of Ananda Panda and had not seen the subsequent events. But his statement in court was to the effect that accused Gokula caught hold of the deceased while accused Surendra dealt a lathi blow on his head. Therefore, the evidence of this witness so far as the assault on Chakradhar is concerned, is not believable. So far as the evidence of P. W. 5 is concerned, there is no consistency in her statement about the presence of P. W. 6. At one stage she has stated that P. W. 6 was not there and at another stage she has stated that P. W. 6 reached later than her. From her cross-examination, it appears that by the time she came out along with the wife of one Jagu Panda, she saw P. W. 1 lying injured at the place of occurrence and that deceased Chakradhar was lying dead at the spot. This is in variance with the evidence of P. W. 1 who says that on receiving the assault, he ran inside the house of Ananda Panda. P. W. 5 cannot be believed to have seen the occurrence as claimed. Her statement in cross-examination is that she saw P. W. 1 lying injured from the house of Jagu Panda. Similarly the evidence of P. W. 6 is not acceptable because she does not speak about the presence of P. W. 5. She has also not stated either before the police or in court as to whether she witnessed the occurrence or had second-hand knowledge about it. Similarly the evidence of P. W. 6 is not acceptable because she does not speak about the presence of P. W. 5. She has also not stated either before the police or in court as to whether she witnessed the occurrence or had second-hand knowledge about it. In that view of the matter, so far as the assaults on deceased Chakradhar are concerned, we find the evidence of the witnesses to be deficient. Accordingly, conviction under Section 302/34 I. P. C. so far as the present appellant is concerned cannot be maintained. ( 7 ) SO far as the charge relating to assault on injured is concerned, it is submitted by the learned counsel for the accused that in view of the proved animosity with the accused persons, his evidence should not have been accepted. It cannot be laid down as a general proposition that whenever animosity exists the evidence has to be discarded in toto. In such a case, the testimony has to pass the test of critical and careful scrutiny. If after such scrutiny the evidence is found credible, the same can form the basis of conviction. We find evidence of injured (P. W. 1) to be acceptable and therefore, the conviction made by the trial Judge under Section 326/34 I. P. C. does not suffer from any infirmity to warrant our interference. In that view of the matter, the sentence of seven yearst rigorous imprisonment as awarded, which does not appear to be on the higher side is maintained. ( 8 ) THE appeal is allowed in part. The order of conviction and sentence under Section 302/34 I. P. C. , so far as accused-appellant Gokula Pradhan is concerned, is set aside. His conviction under Section 326/34 I. P. C. is maintained. The bail-bond executed by him stands cancelled. He should surrender to custody forthwith. Appeal allowed in part.