P. K. MOHANTY, J. ( 1 ) THE appellants, who have been convicted under Section 307 read with Section 34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years and a fine of Rs. 100/-, are before this Court and assail the order of conviction passed by the learned Sessions Judge, Phulbani. ( 2 ) THE prosecution case, in brief, is that on 5-6-85 at 7. 00 A. m. , when Latki Mallik was proceeding towards termeric field for plantation, along with Chana Digal P. W. 1, Bama Digal P. W. 5 and two others namely Sanisi and Nisa, who have not been examined, near 'damajodi Nala', all the four accused persons armed with Logedi lathi suddenly came near Latki Mallik and assaulted with the said lathis on different parts of the body of Latki, as a result of which, he (P. W. 3) sustained bleeding injuries and fell down on the ground. The accused persons, while returning back after assault, set fire to the dry leaves in the termeric field of the injured P. W. 3. First Information Report was lodged by the elder brother of the injured on the same day at Baliguda Police Station at 4. 00 P. M. and Police after completion of investigation, filed charge sheet against the accused appellants under Section 307/34 read with Section 435, IPC. ( 3 ) THE prosecution has examined nine witnesses including the official witnesses like the Investigating Officer, the Officer-in-Charge of the Police Station and the Doctor, who examinedthe injured. P. W. 3 is the injured, P. Ws. 1 and 5 are the eye-witnesses. P. W. 2 is a post-occurrence witness, P. W. 4 is the informant and elder brother of the injured. P. W. 6 is the doctor, who examined the injured. P. W. 7 is a witness to seizure, P. W. 8 is the A. S. I. and P. W. 9 is the Investigating Officer. ( 4 ) THE defence plea is one of denial. However, the plea of accused-appellant No. 3, Balli Digal is that while he was working in his field, the injured P. W. 3 came and assaulted him and in order to save his life, he brandished lathi, which hit P. W. 3, as a result, the injured fell down on the ground against the stones and sustained injuries. However, the plea of accused-appellant No. 3, Balli Digal is that while he was working in his field, the injured P. W. 3 came and assaulted him and in order to save his life, he brandished lathi, which hit P. W. 3, as a result, the injured fell down on the ground against the stones and sustained injuries. It appears from the accused statement that accused Mallik had some misunderstanding with P. W. I and injured P. W. 3 gave evidence against him in a criminal case, in which he had been acquitted and as such, the injured threatened him to see him in future and for which the present case has been initiated. The learned Sessions Judge, on consideration of the evidence on record has convicted the appellants under Section 307 read with Section 34 IPC. ( 5 ) SRI Mohapatra, learned counsel for the appellants, while inviting my attention to the relevant portion of evidence of P. Ws. 1, 2, 3 and 5 contends that the discrepancies in the evidence of the witnesses with regard to infliction of blows on the person of P. W. 3 and the sequence in which the assault is alleged to have been made by the different accused persons, belie the prosecution story and as such, the learned Sessions Judge ought to have held that the witnesses were not deposing truth and were highly interested in the prosecution case, because of admitted enmity. It is contended that in the First Information Report itself, lodged by the elder brother of the injured P. W. 4, it has been clearly stated that there was enmity of the accused persons with the family of the informant and in that view of the matter, the learned trial Judge ought to have considered the evidence of the prosecution witnesses with care and caution. The learned counsel referring to the evidence of the witnesses, so far as it relates to the manner of assault and the sequence, being contradictory and conflicting, the learned trial Judge ought to have disbelieved the evidence of the witnesses. The learned counsel referring to the evidence of the witnesses, so far as it relates to the manner of assault and the sequence, being contradictory and conflicting, the learned trial Judge ought to have disbelieved the evidence of the witnesses. He has referred to the evidence of P. W. 1, who stated that first Mosa gave a blow on the back side of the head of Latki with the Medha, while saying that he would murder P. W. 3 and thereafter other accused persons gave Medha blows to Latki, after which Latki fell down facing downwards. He having raised bullah, Dakka Mallik and Munda Mallik arrived there, seeing them the accused persons went away. Dakka Mallik and Munda Mallik, who are said to have reached the spot after hallah raised by P. W. 1, have not been examined. P. W. 5, on the other hand, stated that Musa gave a blow on the back side of the head of Latki, whereafter Askara gave a 'lungedi Medha' blow on the head of P. W. 3. Thereafter, P. W. 3 brandished his lathi, which had hit accused Balli. Whereafter, accused Balli, gave a blow on the front portion of the head of P. W. 3, after which P. W. 3 fell down on the ground. It is stated that while P. W. 3 was lying on the ground, all the four accused persons gave 'lungedi Medha' blows on P. W. 3. P. W. 3 has categorically stated that first accused Mosa in 'koincha Medha' gave blows on the back side of his head, whereafter Askara gave the blow in Medha. Then he was holding a stick which he brandished. Accused Sudura snatched away the stick from him, whereafter accused Balli in Koincha Mudha gave blow on the front of his head, whereafter he fell down. Learned counsel for the appellants strenuously pointed out that there are discrepancy in the evidence of P. Ws. 3 and 5 on material particulars, inasmuch as the statement of three witnesses, who are said to be eye witnesses are not corroborating the statement of each other. Learned counsel for the appellants strenuously pointed out that there are discrepancy in the evidence of P. Ws. 3 and 5 on material particulars, inasmuch as the statement of three witnesses, who are said to be eye witnesses are not corroborating the statement of each other. It is his submission that the learned Sessions Judge, without discussing the evidence and without appreciating the evidence of the said eye witnesses in its proper perspective with care and caution, being all interested witnesses and without applying his judicial mind to the facts and circumstances of the case with the plea of admitted enmity of the family of the injured P. W. 3 with that of the accused persons, ought to have scanned the evidence and found out the discrepancies to hold that P. W s. 1, 3 and 5 are not trustworthy and truthful witnesses. From the evidence of P. W. 3, it is clear that Mosa having killed a cow of Nira, a criminal case had been started against him in which P. W. 3 deposed in Court, that accused Mosa was inimical to him and was picking up quarrels, the other accused persons are tenants under accused Mosa. It appears from the accused statement of Mosa that he was not convicted in the casewhere P. W. 3 deposed against him. Rather, P. W. 3 threatened to see him. It is thus, apparent that there was longstanding enmity between the parties. But the learned Sessions Judge has not taken this material aspect of the case into consideration and lost site of the discrepancies and pre-varicating statements of the witnesses. It is further seen that P. Ws. 1 and 5 were admittedly the labourers of the injured P. W. 3, as such, are in normal course, supposed to be interested in the prosecution case. On a reading of the evidence, it appears that P. Ws. 1 and 5 have stated that they were going along with P. W. 3 - the injured and other two persons namely Nisa and Banisi, to termeric field. P. W. 3 has also stated that along with him, P. W. 1, P. W, 5, Benisi and Nisa were going to the turmeric field for plantation. The named persons Banisi and Nisa have not been examined in the case P. Ws. P. W. 3 has also stated that along with him, P. W. 1, P. W, 5, Benisi and Nisa were going to the turmeric field for plantation. The named persons Banisi and Nisa have not been examined in the case P. Ws. 1 and 5 being labourers of P. W. 3, the injured and the named persons accompanying P. W. 3 namely Banisi and Nisa having not been examined, the learned trial Court ought to have scrutinised the evidence of P. Ws. 1 and 5 with caution. The independent witnesses though available, have not been examined by the prosecution. The statement of interested witnesses having not been corroborated by the evidence of independent witnesses, the learned trial Judge ought not to have relied upon the prosecution witnesses and solely on that basis could not have convicted the accused-appellants. ( 6 ) THE learned counsel for the appellants further submits that even taking into consideration the prosecution case in its entirety, it does not make out a case under Section 307 read with Section 34 I. P. C. so as to warrant a conviction under the said provision. It is submitted that there is no material on record to show that there was any preparation meeting of mind of the accused persons and any intention to commit the alleged offence. Taking into consideration the allegations against the accused persons and the statements of the witnesses, it cannot be said that there exists any supervening circumstances to compel the accused persons to leave the spot of occurrence as stated by P. Ws. 1, 3 and 5. There is no evidence with regard to the assault made by other accused persons and no independent overt act has been ascribed to those accused persons. Learned counsel has drawn to my attention to the evidence of P. Ws. 3 and 5 and submits that P. W. 3, after receiving two successive blows on his head from accused Mosa and Askara, could not have brandished the lathi and as such, the learned trial Judge ought to have considered about the improbability of the case and ought to have doubted the testimony. 3 and 5 and submits that P. W. 3, after receiving two successive blows on his head from accused Mosa and Askara, could not have brandished the lathi and as such, the learned trial Judge ought to have considered about the improbability of the case and ought to have doubted the testimony. It is pertinent to note at this stage that P. W. 8, the A. S. I. of Baliguda Police Station in his evidence has categorically stated that he examined P. W. 2, but P. W. 3 did not state that at the time of occurrence he was going to village Kundutuli for selling Sal seeds, but he has stated that he was going to meet the call of nature. It is further stated by him that at a short distance from Damajodi Mala, each of the accused persons was holding a badi and ran away towards forest, but he has not stated before him being asked by Latki, accused Mosa replied that he will kill Latki and fake his life. P. W. 3 has not stated before him that he regained sense after six days of the occurrence in the hospital. Accused Mosa gave a medha blow on his head. Inasmuch as he has not stated that accused Budura snatched away the stick from his hand and has also not stated that after Askara gave blow, he brandished the stick. Rather he has stated that after Mosa gave blow, he brandished the stick. P. W. 8 stated similarly with regard to the statement of P. W. 5 in the court that P. W. 5 stated before him to the effect that P. W. 3 brandished his lathi, which hit accused Balli. He has further stated before him that after accused Mosa gave blows on the head of P. W. 3, he brandished the lathi. He had not stated before the Investigating Officer, P. W. 8 that after accused Mosa gave Medha blow, accused Askara gave medha blow on the head of P. W. 3. She had stated before him that accused Balli gave medha blow on the head of P. W. 3. She had also not stated that while P. W. 3 was lying on the ground all the accused persons gave him Medha blows. Thus, on consideration of the evidence of P. Ws. She had stated before him that accused Balli gave medha blow on the head of P. W. 3. She had also not stated that while P. W. 3 was lying on the ground all the accused persons gave him Medha blows. Thus, on consideration of the evidence of P. Ws. 1, 3 and 5 along with the evidence of P. W. 3, the Investigating Officer with regard to the variation in the statement made before the Investigating Officer and the developments and contradictions made at the time of deposing in the Court it cannot be said that the evidence of those witnesses are free from doubt. ( 7 ) THE learned counsel for the appellants further contends that in view of the specific defence plea of accused Balli Digal, appellant No. 3 that he was working in his field and the injured came there and assaulted him and in order to save his life, the appellant No. 3 brandished lathi, which hit the P. W. 3, as a result of which injuredp. W. 3 fell down on the ground against a stone and sustained injuries, the learned trial Court ought to have considered the case in that angle. In order to substantiate the plea of the defence, D. W. 1, the Doctor, who examined Balli has been examined. D. W. 1 after examining Balli, appellant No. 3, found six multiple injuries on his person. But the prosecution has failed to explain the cause of the injuries on accused Balli. Thus, the act of appellant No. 3 was to defend his person and has exercised his right of private defence. The learned Sessions Judge has not taken into account these material factors to (Sic) (in)consideration and in that view of the matter, conviction of appellant No. 3 is otherwise not sustainable. Thus, the act of appellant No. 3 was to defend his person and has exercised his right of private defence. The learned Sessions Judge has not taken into account these material factors to (Sic) (in)consideration and in that view of the matter, conviction of appellant No. 3 is otherwise not sustainable. ( 8 ) IN view of the discussions made in the foregoing paragraphs and on a close scrutiny of the evidence of witnesses on record, the statements of the prosecution witnesses including, the injured P. W. 3 do not inspire confidence to hold the accused-appellant guilty of the offences alleged under Section 307/34 I. P. C. In that view of the matter and for the reasons stated in the foregoing paragraphs, I am inclined to hold that the prosecution has not been able to prove its case beyond reasonable doubt, specifically, in view of the admitted enmity of P. W. 3's family with that of the accused persons as admitted in the evidence of the witnesses as well as in the First Information Report lodged by P. W. 4. In the result, I allow the appeal, set aside the conviction and sentence of the accused-appellants. Appeal allowed.