PHUKAN, C. J. ( 1 ) THIS appeal has been filed from jail by the accused-appellant Subashchandra Sahu against the judgment and order of the Sessions Judge, Mayurbhanj, at Baripada, in S. T. Case No. 39 of 1992. ( 2 ) SIX accused persons were booked for trial, namely, Subash Chandra Sahu, Natha Majhi, Laba Murmu, Biranchi Mohanta, Hari Charan Sahu and Radhaballav Sahu. Accused Subash Chandra Sahu, Natha Majhi, Laba Murmu and Biranchi Mohanta were charged under Sections 302, 323 read with Section 109 of the Indian Penal Code. The Sessions Judge by the impugned judgment and order acquitted accused Laba Karma, Natha Majhi, Hari Charan Sahu and Radhaballav Sahu. However, he found accused Subash Chandra Sahu, the present appellant and Biranchi Mohanta guilty under Section 302 and 323 I. P. C. respectively and convicted them accordingly. The Sessions Judge sentenced accused-appellant Subash Chandra Sahu to undergo R. I. for life and accused Biranchi Mohanta to undergo R. I. for a period of one year. Hence, the present appeal by the accused-Subash Chandra Sahu from the jail. ( 3 ) ACCORDING to the prosecution, accused Radhaballav Sahu had a shop of essential commodities at village Soso and as there were some irregulaties, the deceased Sankarlal Sahu along with other villagers filed a complaint before the authorities against him and as a result the licence of the shop of the accused Radhaballav Sahu was cancelled. Accused-appellant Subash Chandra Sahu and his brother accused Radhaballav Sahu were aggrieved by the action of the deceased Sankarlal Sahu and other villagers. Therefore, they prepared a plan to take revenge on the deceased Sankarlal. According to the prosecution, in the evening of 9-11-1991 accused Hari Charan Sahu and Radhaballav Sahu asked the other accused persons to do away with the life of the deceased Sankarlal on the very night. At about 8. 30 p. m. the deceased Sankarlal with his friends, namely, Sasidhar Sahu (P. W. 6), Manaranjan Das (P. W. 2) and Kuanr Munda (P. W. 3) were returning from village tank and when they were at the road crossing of the village Soso accused persons Subash Chandra Sahu, Laba Murmu, Natha Majhi and Biranchi Mohanta suddenly attacked Sankarlal. According to the prosecution, accused Biranchi was holding a stick and others were holding an axe each. According to the prosecution, accused Biranchi was holding a stick and others were holding an axe each. The prosecution alleged that the accused-appellant Subash Chandra Sahu dealt an axe blow on the head of the deceased Sankarlal causing bleeding injury whereafter the deceased fell down. When Kuanr Munda tried to intervene, accused Biranchi Mohanta dealt one stick blow on his hand. Manaranjan ran away to inform the matter to the relations of the deceased and in the meantime accused-appellant Subash Chandra Sahu dealt another blow with the axe on the head of the deceased Sankarlal. Thereafter, Laxmidhar and Kuanr Munda raised hullah and the villagers came but the accused persons fled away. The deceased was taken in a truck by Manaranjan and the brother of the deceased to Bahalda hospital where he was declared dead. Thereafter, Bishnu Charan Sahu and others went to the police station and lodged the F. I. R. The police took up investigation and submitted the charge-sheet. ( 4 ) THE plea of the accused persons was a total denial. From the trend of the cross-examination and the evidence adduced by the witnesses for the defence, we find that the defence wants to raise a plea that identification was not possible as there was no sufficient light. That apart, another plea has been taken that at the relevant time accused persons were some others and that the death of the deceased Sankarlal was caused by some of the witnesses for the prosecution. Accused-Appellant Subash in his statement recorded under Section 313 Cr. P. C. has stated that on 9th at 10. 00 P. M. he was returning from a feast. Suddently somebody hit him on his head. He ran home after being injured. At 1. 30 A. M. police took him from his house. Police also took Biranchi, Sumant and Laba to the police-station. All of them were confined in the hazat. Thereafter, they have neither been brought back to village nor released. ( 5 ) THE prosecution examined as many as eight witnesses. Similarly the defence examined nine witnesses in support of the story of defence. ( 6 ) P. W. 5 Dr. Police also took Biranchi, Sumant and Laba to the police-station. All of them were confined in the hazat. Thereafter, they have neither been brought back to village nor released. ( 5 ) THE prosecution examined as many as eight witnesses. Similarly the defence examined nine witnesses in support of the story of defence. ( 6 ) P. W. 5 Dr. Pranabandhu Sethi, conducted the post-mortem examination on the dead body of the deceased Sankarlal and he found two external injuries, namely (1)" lacerated wound over the scalp to the left side 3" above the ear extending forward and backward of length 3" x 1/2 " x 1" and (2) Incised wound medial to the first injury just over the vertex, the size being 1 1/2 " x 1/2 " x skin deep. "he had also given the description of the internal injuries on dissection as follows :- (1) Parietal bone had been fractured into pieces, rectangular in fashion. Size 21/2 " x 2" x 1/4". (2) Fracture of the occipital bone one inch in length. (3) Blood clots were found on the meninges and brain substance. According to him, all these injuries were ante-mortem in nature and were sufficient in ordinary course to cause death. He was asked to give opinion as to whether by the axe sent to him the injuries found on the deceased could be caused and his reply was in the affirmative. Therefore, we have no hesitation to hold that the deceased Sankarlal met with a homicidal death. Now the question is whether the accused-appellant was responsible for causing the death of the deceased. ( 7 ) AS to Section 34 of the I. P. C. the trial Court held that nowhere in the evidence of the prosecution there is any indication that the accused Laba Murmu and Natha Majhi did any overt act or did take part in that act. It was also held that there is no evidence to show that there was any discussion or planning by the accused persons to join hands with the accused-appellant Subash Chandra Sahu to attack. Therefore, the charge under Section 34, I. P. C. was not accepted by the Sessions Judge. ( 8 ) THE only question to be decided is as to whether accused-appellant Subash Chandra Sahu gave the fatal blow. P. Ws. 2, 3 and 6 are the alleged eye witnesses. Therefore, the charge under Section 34, I. P. C. was not accepted by the Sessions Judge. ( 8 ) THE only question to be decided is as to whether accused-appellant Subash Chandra Sahu gave the fatal blow. P. Ws. 2, 3 and 6 are the alleged eye witnesses. ( 9 ) P. W. 2 has stated that he along with P. Ws. 3 and 6 and the deceased were returning from the village tank at about 8 P. M. and near the road-crossing of their village, accused-appellant Subash Chandra Sahu armed with an axe along with accused Laba Murmu and Natha Majhi each armed with an axe and accused Biranchi Mohanta armed with a stick suddenly came and attacked the deceased. According to him, the accused-appellant Subash Chandra Sahu dealt an axe blow on the head of the deceased who thereafter fell down and the accused Biranchi then dealt a blow with his stick on the right hand of Kuanr Munda. Thereafter, he went to the village and informed the brother of the deceased. After returning from the village along with Bishnu Charan Sahu (P. W. 1) to the place of occurrence, they found the deceased lying with bleeding injuries and took him in a mini truck to Bahalda P. H. C. where he was declared dead. He has further stated that lights were flowing at the houses of Magharai Mojhi, Mohan Sahu and Padaran Sahu and because of the lights they could see the occurrence. It has come out from the evidence that there were disputes regarding sale of essential commodities for which a complaint was lodged and there was strained relationship between the parties. P. W. 3 - Kuanr Munda has also deposed on the same line with P. W. 2 regarding the incident and so also P. W. 6 - Laxmidhar Sahu. According to P. W. 3, there was electric light on the road and also on the nearby houses. In cross-examination he has stated that the night was dark but there were lights on the street and on the houses of Megharai and Pada Sahu, and the street light is about 5 cubits away from the place of occurrence. P. W. 6 has also supported the prosecution story. As stated above, he has stated in cross-examination that there were lights in the vicinity for recognition. P. W. 6 has also supported the prosecution story. As stated above, he has stated in cross-examination that there were lights in the vicinity for recognition. P. W. 7 - Sakila Majhi has been examined to prove the ingredients of Section 34 I. P. C. which were not accepted by the learned trial Court. P. W. 8 is the I. O. Though a statement has been made that the accused persons were not arrested as indicated in case diary, this cannot be accepted in view of the statement made by the I. O. P. W. 8 who deposed from the case diary. The I. O. P. W. 8 has clearly stated that he has mentioned in the case diary that the spot where the occurrence took place was being illuminated by one electric light burning at the house of Dukhuram Sahu and he himself found light in front of the house of Dukhuram Sahu. There is no question of disbelieving him. ( 10 ) D. W. 1 Subash Chandra Sahu (accused-appellant) has been examined only to show that there was a feast on the night of 9-11-1991 and they left at 9. 30 P. M. and that some one dealt a blow on his back, and he could not recognise the assailant as it was dark. He has stated that on the same night he was taken to the police station along with others. His statement regarding arrest and putting him in custody is not believable in the absence of records. He has made a statement that for the last 4-5 years there was no electricity connection in the house of Dukhuram Sahu andthe place was in darkness. D. W. 2, Laxman Murmu, is the father of the accused Laba. According to him, it was a dark night and nothing was visible but in cross-examination he has stated that Manaranjan lighted a match stick and he saw his face along with Sankar Sahu, Lakhi Sahu, Kuanr Munda and Shakti Sahu. Therefore, it cannot be accepted that only because there was no electricity, there could not be any identification. D. W. 3, Gourahari Mohanta, was an Electrical S. D. O. who was working in the area from 14th February, 1992 i. e. , long after the occurrence. He has produced some records to show about disconnection of electric lines from some houses. D. W. 3, Gourahari Mohanta, was an Electrical S. D. O. who was working in the area from 14th February, 1992 i. e. , long after the occurrence. He has produced some records to show about disconnection of electric lines from some houses. But this officer has no personal knowledge about the area and, therefore, his version cannot be accepted. D. W. 4 Radhu Sahu, has deposed that there was no electric light in his village and that the electricity supply to his house was disconnected. He has further stated that there was no electric supply to the house of his nephew Padaram Sahu and also to the houses of Mohan Sahu and Magharai Majhi. D. W. 5, Baidyanath Hansda, has been examined to show that there was no street light in his village. D. W. 6 Bighneswar Mohanta, has made a very interesting statement that with his torch light he could see four persons standing near the tree and they were Laxmidhar Sahu, Bhakti Sahu, Sankar Sahu and Manaranjan Das. D. W. 7, Santosh Kumar Mohanta, was the Sarpanch of Soso Grama Panchayat, and he has stated that there was no street light in his village Soso. D. W. 8, Kalinga Behera, has stated that on the date of occurrence i. e. 9-11-1991 he went to witness video show and as there was power failure he returned. D. W. 9, Bighneswar Mohanta, has deposed that on 9-11-1991 they had a feast in their village on account of Kali Puja and the accused-appellant Subash was present but other accused persons were not there. After the feast he along with one Bighneswar came away and went to his house and the police party came thereafter and took him along with others in a jeep. He has further stated that the police took their signatures on blank papers. According to him on 11-11-1991, 20 to 30 persons came to the police station and demanded that Hari Sahu and Radhaballav Sahu be arrested. In cross-examination he has stated that the sister of accused Biranchi Mohanta is his mother by relation. ( 11 ) THE first point to be determined is whether the accused-appellant gave two blows, as stated by the eye-witnesses P. Ws. 2, 3 and 6. In cross-examination he has stated that the sister of accused Biranchi Mohanta is his mother by relation. ( 11 ) THE first point to be determined is whether the accused-appellant gave two blows, as stated by the eye-witnesses P. Ws. 2, 3 and 6. As the learned trial Court has disbelieved the case against the accused persons under Section 34 I. P. C. we have to determine the individual act of the accused-appellant. ( 12 ) FROM the evidence of the above three eye-witnesses, we find that on the night of occurrence when they along with the deceased were returning from the village tank, at the point near the road crossing of the village, accused-appellant Subash along with accused Laba, Nath and biranchi suddenly appeared being armed with lathi, etc. and attacked the deceased Shankarlal. According to these eye-witnesses, the accused-appellant dealt a blow with his axe on the head of the deceased who fell down, and when one of them, namely, Kuanr Munda P. W. 3, tried to intervene, accused Biranchi dealt a blow with stick on his right hand. These witnesses have stated that the accused-appellant gave the second blow with the axe on the head of the deceased. From the medical evidence quoted above, it is proved that two injuries were found and the doctor has stated that the injuries could be possible with the axe, which was recovered, according to the prosecution at the instance of the accused-appellant Subash. ( 13 ) THE accused persons took the plea that as the occurrence took place at night, and there was insufficient light, identification was not possible; and that they were falsely implicated due to enmity. The accused-appellant Subash took the further plea of alibi. ( 14 ) AS on behalf of the accused persons as many as nine witnesses have been examined including the accused-appellant as D. W. 1, let us consider the law regarding the evidentiary value of defence witnesses. ( 15 ) IN Kaur Sain v. State of Punjab, AIR 1974 SC 329 : (1974 Cri LJ 358) the Apex Court held that the defence witnesses are often untrustworthy, but it is wrong for that reason to assume that they always lie and that prosecution witnesses are always trustworthy. ( 15 ) IN Kaur Sain v. State of Punjab, AIR 1974 SC 329 : (1974 Cri LJ 358) the Apex Court held that the defence witnesses are often untrustworthy, but it is wrong for that reason to assume that they always lie and that prosecution witnesses are always trustworthy. ( 16 ) IN a subsequent decision in Dudh Nath Pandey v. State of U. P. , AIR 1981 SC 911 : (1981 Cri LJ 618) the Apex Court held that the defence witnesses are entitled to equal treatment with those of the prosecution and Courts ought to overcome their traditional instinctive disbelief in defence witnesses. It was also observed that quite often they tell lies, but so do the prosecution witnesses. ( 17 ) IN view of the above law, we have to give almost the same amount of credibility to the defence witnesses as is given to the prosecution witnesses; but their evidence has to be scrutinised properly. ( 18 ) ACCORDING to the eye-witnesses, there were electric lights in front of the nearby houses. There were also street lights. On behalf of the defence, witnesses were examined mainly to show that no electric light was burning at the time of occurrence. From the evidence it has come out that the house of Meghrai is at a distance of 500 cubits from the place of occurrence and there are other houses nearby. According to the eye-witnesses examined by the prosecution, lights were burning in those houses and street lights were also burning. Regarding street lights, defence has examined the S. D. O. , Electrical, as D. W. 3, who only produced some records to show that there was no street light at the village and that electricity was disconnected from the houses of Dukhu Sahu and Rathu Sahu since 25-9-1988. But he has confirmed that there was electricity in the houses of Megharai Majhi, Shyam Charan Majhi and Padaran Sahu. Learned trial Court took into consideration the statement of this witness that in rural areas there are instances where consumers even after disconnection of electricity officially, take direct line by putting hooks. This statement supports the prosecution version of the story. D. W. 2 has stated that there was no electric light in the houses of Dukhuram Sahu, Padaram Sahu, Mohan Sahu and Rathu Sahu. He has further stated that there was no street light. This statement supports the prosecution version of the story. D. W. 2 has stated that there was no electric light in the houses of Dukhuram Sahu, Padaram Sahu, Mohan Sahu and Rathu Sahu. He has further stated that there was no street light. Rathu Sahu has been examined as D. W. 4. He has stated that his electricity supply was disconnected. D. W. 5 has stated that there was no electric light in the houses of Dukhuram Sahu, Ghati Majhi and Rathu Sahu. D. W. 7, who is the Sarpanch of the locality, has also stated that there is no electric connection in the house of Dukhuram. He has further stated that the Grama Panchayat has not taken any street light connection. According to him, there is a transformer near the village Chhaka where the murder took place and there is light provision at the electric sub-station. ( 19 ) THUS, from the evidence on record, more particularly, the evidence of the witnesses examined by the defence, it has come out that there was light at the electric sub-station, which is near the place of occurrence, and that there were also lights in the houses of Meghrai Majhi, Shyam Charan Majhi and Padaram Sahu. We have already stated that the house of Meghrai Majhi is only at a distance of 500 cubits from the place of occurrence. Therefore, the plea of the accused persons that in absence of adequate light, identification was not possible, is ruled out. ( 20 ) IT is not disputed that the deceased, the prosecution witnesses and the accused persons are not only closely acquainted, but they also reside in the same village. In State of U. P. v. Manoharlal, AIR 1981 SC 2073 : (1981 Cri LJ 1701) the Apex Court expressed the view that even if there is insufficient light, a witness can identify a person, with whom he is fairly acquainted or is in intimate terms, from his voice, gaits, features, etc. in view of the above, in addition to the fact that there was sufficient light for identification, the plea of the accused persons on the point of identification is rejected. ( 21 ) ACCUSED-APPELLANT Subash also took the plea of alibi. in view of the above, in addition to the fact that there was sufficient light for identification, the plea of the accused persons on the point of identification is rejected. ( 21 ) ACCUSED-APPELLANT Subash also took the plea of alibi. In Dudh Nath Pandey (supra), the Apex Court held that the plea of alibi postulates physical impossibility of the presence of the accused at the scene of offence by reason of his presence at another place. Therefore, it has to be shown that at the relevant time, the accused could not have been present at the place of occurrence. ( 22 ) ACCORDING to the accused-appellant Subash, there was a feast in the village at the relevant time, which the accused persons attended. Therefore, they could not have caused the death of the deceased. He has stated on oath that the feast was in front of the house of Natha Majhi around 9. 00 to 9. 30 P. M. and after that he returned home alone. On the way, someone dealt a blow on his head and he sustained injury. He has further stated that subsequently police came to his house at midnight and arrested him. But this accused (D. W. 1) has stated that accused Laba and Biranchi were not there at the feast and that the place of occurrence is at 5 to 7 minutes walking distance from the place of the feast. ( 23 ) THE feast was, as stated by D. W. 1 around 9. 00 to 9. 30 P. M. and the occurrence took place at about 8. 00 to 8. 30 P. M. Therefore, the plea of the accused-appellant that he could not have been present at the place of occurrence is completely4578 Nizamuddin v. State of Andhra Pradesh Cri. L. J. ruled out as the feast took place after the occurrence. In other words, it has not been shown that it was not physically possible for the accused-appellant to be present at the scene of the offence by reason of his presence at another place. ( 24 ) FROM what has been stated above, we have no hesitation in holding that the accused-appellant Subash gave two blows on the head of the deceased who succumbed to the injuries. ( 24 ) FROM what has been stated above, we have no hesitation in holding that the accused-appellant Subash gave two blows on the head of the deceased who succumbed to the injuries. The only question is whether it is a fit case for conviction under Section 302 I. P. C. ( 25 ) THERE is always a tendency with the witnesses more particularly, prosecution witnesses, to supress the actual occurrence. The prosecution party consisted of four persons, namely, the three eye-witnesses and the deceased, and, as alleged, they were attacked when they were returning from the village tank by the appellant and his party, which also consisted of four persons. Therefore, the possibility of altercation giving rise to provocation cannot be ruled out. Otherwise, there would not have been sudden fight, as has come out from the evidence on record. ( 26 ) IN Surinder Kumar v. Union Territory, Chandigarh, AIR 1989 SC 1094 : (1989 Cri LJ 883) the Apex Court held that to attract Exception 4 to Section 300 IPC, four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the appellant had not taken any undue advantage or acted in a cruel manner. It is immaterial as to which party offered provocation or started the assault. The number of wounds caused during the occurrence is also not a decisive factor. ( 27 ) WE have already held that there was provocation and sudden fight. As the case under Section 34 IPC was not proved, according to the learned trial Court, premeditation is ruled out. There is also nothing to show that the accused-appellant took undue advantage. We, therefore, hold that it is a fit case for altering the conviction under Section 302 IPC to Section 304, Part-I, IPC, and we do so. Regarding sentence, we are of the opinion that rigorous imprisonment for a period of eight years would meet the ends of justice. The accused-appellant shall get the benefit of set off of the period of imprisonment already undergone. ( 28 ) IN the result, the appeal is allowed in part to the extent indicated above. ( 29 ) A. PASAYAT, J. , I agree. Appeal partly allowed.