JUDGMENT : S. C. Datta, J. - The appellants call in question the legality of order dated 8.12.1986 passed by the Additional Sessions Judge, Balasore, convicting them under Sections 304, Part-II read with Section 34, I.P.C. and sentencing them to undergo R.I. for two years each and further convicting this under Section 323/34, I.P.C. and sentencing them to undergo R.I. for six months such in Sessions Trial; No. 12/28 of 1985/85. 2. The appellants faced trial before the learned Additional Sessions Judge, Balasore being charged under Sections 302/323/34 I.P.C., on the allegations that they had intentionally caused death of one Gopal alias Dhusa Pradhan by assaulting him with deadly weapons, such as, lathis and also caused hurt voluntarily to Baidhar Pradhan and Manohar Pradhan by assaulting them with lathis in furtherance of their common intention. 3. The prosecution case, in brief, is that on 17.5.1984 in between 7 and 7.30 A.M. while the accused persons were damaging the ridge of the tank locally known as 'Badagadia' tank in village Bantuli, put up by Baidhar Pradhan and Manohar Pradhan, Manohar Pradhan protested and on such protest, the accused Narayan Lenka dealt fist blows on his left check and as a result thereof, he fell down and thereafter accused Narayan Lenka and Surendra Lenka pounced upon him and assaulted him by slaps and fist blows. On noticing this, Baidhar Pradhan arrived and raised hue and cry. On hearing the hullah Gopal Pradhan, the deceased, who was engaged in ploughing land nearby rushed to the spot and while he was lifting his father Manohar Pradhan, accused Narayan Lenka dealt a lathi blow on his head, Gajendra Lenka dealt also a lathi blow on his neck and on being injured while he was going to his house by crawling with much difficulty, the accused Gajendra Lenka pelted a stone on his chest, and as a result of which, he fell down unconscious. The mother and wife of deceased Gopal took him to their house. 4. It has been alleged further that the accused Narayan Lenka assaulted Baidhar Pradhan by means of lathi at that time. Baidhar Pradhan snatched away thenga from the hand of accused Narayan Lenka and started tossing it. At this juncture one Bhagaban Patra (P.W.1) reached the place of occurrence, intervened and separated the fighting persons from one another and took the accused persons to their house. Baidhar Pradhan snatched away thenga from the hand of accused Narayan Lenka and started tossing it. At this juncture one Bhagaban Patra (P.W.1) reached the place of occurrence, intervened and separated the fighting persons from one another and took the accused persons to their house. Later, he took the injured to their house where he found Gopal Pradhan (deceased) on the outer verandah of his house lying unconscious with injuries on his head, back left side of his neck and left wrist joint. He enquired from Baidhar Pradhan and Manohar Pradhan about the cause of injuries sustained by them as well as by Gopal Pradhan (deceased) and about the incident that preceded. Thereafter, he along with one Ramachandra Pradhan, Puma Chandra Jena removed Gopal Pradhan to Singla P.H.C., where they found the Doctor absent. Therefore, they took the injured Gopal Pradhan to Basta Up-graded hospital. Then Bhagaban Patra (P.W.l) went to Singla Police-station and lodged the report orally which was reduced into writing by the Officer-in-charge. Accordingly, the case was registered and the police took up investigation. On taking up investigation, the Police Officer (P.W.2) visited the spot, examined witnesses and seized some articles, such as, lathi, spade etc. He also sent requisition to the Medical Officer firstly to Singla dispensary and later to Basta hospital for medical treatment. On the same day at about 4 p.m., he received information from the Choukidar about the death of Gopal Pradhan at Basta Upgraded hospital. Accordingly, he deputed an A.S.I. to hold inquest on the dead body of the deceased and on the same day, he arrested the accused persons. On 18.5.1984, he made over charge of investigation to Circle Inspector, Basta (P.W. 13) who completed the rest of the investigation and on completion of investigation, he submitted charge-sheet in this case. Eventually, the accused persons faced trial before the trial Judge under Sections 302/323/34, I.P.C. 5. The accused persons pleaded not guilty to the charges. Their case was that on the day and time of occurrence, Baidhar Pradhan (P.W.2) and Manohar Pradhan (P.W.3) along with deceased Gopal Pradhan were putting the ridge in the tank locally known as Badagadia to which they protested and for which they were abused and assaulted. They sustained injuries at the hand of P.Ws. 2 and 3 and deceased Gopal Pradhan. They sustained injuries at the hand of P.Ws. 2 and 3 and deceased Gopal Pradhan. Their further plea is that the deceased Gopal Pradhan while running away dashed against one electric pole and fell and rolled down and as a consequence, he might have sustained injuries. 6. The learned trial Judge concluded that the accused persons are responsible for causing the death of deceased Gopal and they are further responsible for causing the injuries on Baidhar Pradhan (P.W.2) and Manohar Pradhan (P.W.3). According to the trial Judge the accused persons cannot be held liable under Section 302/34, I.P.C. He, however, found them guilty of the offence under Section 304, Part-II I.P.C., and under Section 323/34, I.P.C., and convicted them thereunder and sentenced as above mentioned. 7. It is not disputed at the time of hearing that the death of Gopal Pradhan (deceased) was a homicidal one. The question, therefore, crops up as to who is responsible for causing the death of Gopal. It appears from the evidence on record that Gopal Pradhan was first brought to Singla hospital where the Doctor being away he was shifted to the Upgraded hospital at Basta. On that day at police request P.W. 9 examined Gopal Pradhan on 17.5.1984 and noticed the following injuries on his persons:- "(i) One contusion of size 2"" x 2"" present over the left wrist joint. (ii) Fracture of radious and ulna left side i.e., collas fracture underneath above injury No. 1. (iii) One contusion of size 2"" x 2"" present over the left side of the neck. (iv) One contusion of size 3"" x 2"" present over the parietal region of head of left side. According to the Doctor, the injuries might have been caused by hard and blunt weapon, such as, lathi. P.W. 8 is the Autopsy Surgeon. He conducted the postmortem examination of Gopal Pradhan on 18.5.1984 at about 10 A.M., and found the following external injuries:- (i) One contusion of 2" x 2" on the left wrist joint. (ii) One contusion of 2" x 2" found on the left side of the neck behind and below the left angle of the mandible. (iii) One contusion of 3" x ?" on the back of the neck just above the tip of 7th cervical spine. (iv) One contusion of 3" x 3" on the left side of the head over and below the left parietal ominence. (iii) One contusion of 3" x ?" on the back of the neck just above the tip of 7th cervical spine. (iv) One contusion of 3" x 3" on the left side of the head over and below the left parietal ominence. (v) One grazed abrasion of 3" x 2" on the left gluteal region. On dissection, he found the following internal injuries. (i) Fracture collas (left i.e., lower ends of the left radious ulna with blood clots inside the joint cavity. (ii) Multiple haemorrhage found on the left side of the neck and back of the neck corresponding to the external injury Nos. 2 and 3. (iii) 4th and 5th and 6th cervical vertebrae found dislocated with blood clots corresponding to external injury No.3. (iv) One depressed fracture of ?" x ?" found over left parietal bone with fractures of the bone in radiating pattern corresponding to external injury No. 4; (v) Membranes found in tact. (vi) Extra dural and sub-dural haemorrhages present. (vii) Intra cerebral hemorrhage was present on the left side of the brain substance. (viii) Base of the skull found fracture. According to Autopsy Surgeon, the cause of death of the deceased was due to shock and internal haemorrhage. The injuries were ante mortem in nature caused by hard and blunt weapons. According to him external injuries Nos. 1,2,3 and 4 can be caused by lathi. He states that the death was due to cumulative effect of all the injuries. It is therefore, evident that Gopal Pradhan died of injuries by means of a hard and blunt weapons, such as, lathis. 8. According to the prosecution, the accused persons are responsible for causing the death of deceased Gopal Pradhan. Bhagaban Patra (P.W.1) is the informant. On his verbal statement, the F.I.R. was drawn-up and investigation started. He is the Choukidar of Bantuli village. It is gathered from his evidence that on 17.5.1984. at about 7.30 a.m., he reached the place of occurrence on hearing a hullah and found Manohar Pradhan (P.W.3) and Baidhar Pradhan (P.W.2) were standing on one side while the accused persons were standing on another side, both sides, being armed with lathis and were engaged in mutual fighting. It is in his evidence that the incident took place on the public road by the side of the tank locally known as Bada Gadia towards south. He intervened and separated them from each other. It is in his evidence that the incident took place on the public road by the side of the tank locally known as Bada Gadia towards south. He intervened and separated them from each other. Thereafter, the accused persons returned back to their house. He took Baidhar Pradhan (P.W.2) and Manohar Pradhan P.W.3) to their houses. There he noticed Gopal Pradhan alia Dhusa the deceased lying in unconscious state on the outer verandah of his house, with injuries on his person. He also found injury on the left ankle joint of Baidhar Pradhan (P.W.2). He was admittedly not present when the assault on Gopal Pradhan was allegedly made by the accused persons. He noticed the two warring parties engaged in mutual fighting and then separated them. He ascertained the reason for the incident from Baidhar Pradhan (P.W.2) and Manohar Pradhan (P.W.3). It appears from his evidence that the present incident was a sequel to an incident which happened 7 to 8 days prior to the present incident. According to him, Baidhar Pradhan P.W.2) and Manohar Pradhan (P.W.3) put a ridge in the middle of the tank, locally known as Badagadia but on the day of incident the accused persons damaged it and on protest the accused persons assaulted them. He has of course given how the assaults were given by the accused persons to the deceased as well as to the injured persons P.Ws 2 and 3. Learned trial Judge noticed that the evidence of Bhagaban Patra (P.W.1) with regard to actual assault on the deceased Gopal Pradhan and to the injured persons Baidhar Pradhan P.W.2) and Manohar Pradhan (P.W.3) are hearsay and as such the trial Judge observed quite rightly that the evidence of Bhagaban Patra (P.W.1) on this point cannot be the basis for arriving at a finding regarding the guilt of the accused persons. The trial Judge however, relied upon the evidence of the two injured persons, Baidhar Pradhan (P.W.2) and Manohar Pradhan (P.W.3) and Bhaskar Pradhan (P.W.5) and other materials on record to base conviction of the accused persons. 9. We have noticed earlier that P.W.1 is the Grama Rakhi of the village. He had first taken the injured Gopal to Singla P.H.C. and therefrom to Basta, Upgraded hospital. Later, he went to the Singla Police-Station to lodge the complaint. He set the law in motion. He is of course a relation of Gopal Pradhan (deceased). 9. We have noticed earlier that P.W.1 is the Grama Rakhi of the village. He had first taken the injured Gopal to Singla P.H.C. and therefrom to Basta, Upgraded hospital. Later, he went to the Singla Police-Station to lodge the complaint. He set the law in motion. He is of course a relation of Gopal Pradhan (deceased). P.W. 2 is the uncle of the accused who went to the tank where the ridge put by him and P.W. 3, seven-eight days prior to the occurrence and noticed that the ridge was damaged by the accused persons. He stated in his evidence that the accused Surendra Lenka was holding a spade and the other two accused persons were holding lathis. Accused Surendra Lenka destroyed the ridge of the tank Badagadia put by them in the middle of the tank. The tank was dry at that time. He further stated that while Surendra Lenka was damaging the ridge with the spade, his brother Manohar Pradhan (P.W.3) objected. At that time, accused Narayan Lenka dealt 4 to 6 fist blows on his left check. Then accused Narayan Lenka and Surendra Lenka pounced upon him. So he raised hullah. His house is visible from the spot. On hearing hullah Gopal Pradhan (deceased) who was ploughing in the nearby field rushed to the spot and turned away the accused persons and separated his father. It is in his evidence that at this juncture, accused Narayan Lenka dealt a thenga blow on the head of deceased. Likewise, accused Gajendra Lenka also dealt a thenga blow on his neck. Due to the assault, deceased was going to his house crawling with difficulty but at that time accused Gajendra Lenka pelted stone on his chest, as a result of which, he fell down and became immobile unconscious. The evidence of P.W.2 further discloses that he then ran to the spot. Accused Narayan Lenka who was holding a thenga dealt a blow aiming at his head but in trying to ward off the attack he sustained injury on his left hand. He snatched away the thenga from the possession of Narayan Lenka and to protect himself from further assault and to frighten the assailants he tossed the said thenga. Just at that time P.W.1 arrived at the spot, intervened and separated them. He snatched away the thenga from the possession of Narayan Lenka and to protect himself from further assault and to frighten the assailants he tossed the said thenga. Just at that time P.W.1 arrived at the spot, intervened and separated them. We gather from his evidence that P.W.1 took the accused to their houses and took him and their brother to the house. We find from his testimony that as the condition of Gopal was serious and he was found lying in an unconscious state, he was first removed to Singla P.H.C. along with one Ramachandra Pradhan, Purna Chandra Jena and himself. Later, he was shifted to Basta Upgraded hospital where he succumbed to his injury at 11.30 A.M. Manohar Pradhan (P.W.3) is the father of the deceased. He fully corroborated his brother Baidhar Pradhan (P.W.2). On scrutiny of the evidence of P.Ws 2 and 3, it would appear that the evidence is quite consistent and reliable as they corroborated each other in all material particulars. In view of the clear, cogent, consistent evidence of these two witnesses, it is very difficult, to disbelieve their testimony. It is evident from the evidence of P.W.3 that he narrated the entire incident to Bhagaban Patra (P.W.1) at his house. P.W.5 Bhaskar Pradhan is another independent witness of the locality. He states that on the day of occurrence at about 6.30 to 7 a.m. while he was coming from his house he was attracted by the hullah and thereafter he went to the place of occurrence. He has noticed the incident from close quarter. We find from his testimony that after the incident, Choukidar arrived and he left for his house. He admits of course that he had not noticed any injury on the person of the accused. It is of course true that he is also a relation of the deceased. Nevertheless his presence at the spot cannot be disputed on the ground that his house also stands nearby. The incident happened in the early hours of the day. The background of the incident is worthy of note. The complainant party purchased a portion of the disputed tank from the owner and they had put of a ridge in the middle of the tank for the purpose of demarcation. The incident happened in the early hours of the day. The background of the incident is worthy of note. The complainant party purchased a portion of the disputed tank from the owner and they had put of a ridge in the middle of the tank for the purpose of demarcation. According to the prosecution, the trouble started when the complainant party noticed the accused persons damaging the ridge so as to deface the dividing mark. 10. The learned counsel appearing in support of the appeal submits that all the witnesses are relations of the deceased as well as P.Ws. 2 and 3 and as such, they should be disbelieved. He goes on to argue that no disinterested witness has been examined in this case by the prosecution. In this connection, he has drawn my attention to the evidence of I. O. to the effect that there are several eyewitnesses to the occurrence who had been examined under Section 161, Cr. P. C. but they had not been examined in Court nor any reason has been given for their non-examination. But it may be remembered that the well settled principle of law is that it is left to the prosecution to decide which and how many witnesses it will examine to establish its case but the said choice of witnesses must be just and fair. It may also be remembered that the evidence is not to be counted but weighed. In my opinion, the prosecution has examined all the important witnesses to unfold to the narrative. Even if the witnesses are relatives of the deceased and the injured persons, they deposed in a clear, cogent and consistent manner. Their testimony should not be discarded simply because they happen to be relations of the deceased two of the witnesses are injured persons. They received injuries during fracas. It is improbable that they would shield the real offender and falsely implicate the accused persons. The police case instituted by the accused persons speaks volume that in fact an incident received on that day at that time and on that place. There is, therefore, hardly any occasion to disbelieve their testimony. Consequently, I find that the learned Additional Sessions Judge was justified in acting upon their testimony and in convicting the accused persons. 11. The police case instituted by the accused persons speaks volume that in fact an incident received on that day at that time and on that place. There is, therefore, hardly any occasion to disbelieve their testimony. Consequently, I find that the learned Additional Sessions Judge was justified in acting upon their testimony and in convicting the accused persons. 11. The next point urged by the learned counsel for the appellants is that the prosecution has miserably failed to explain the injuries on the person of the accused persons and as such is guilty of suppression of material part of the occurrence, rendering the evidence of prosecution witnesses highly incredible. In this connection, he has drawn my attention to the evidence of the Doctor Hrishikesh Mishra (P.W. 10), in corss-examination to show that on 17.5.1984, he examined the accused persons on police requisition. According to the Doctor (P.W. 10) all the injuries noticed on the accused persons are simple in nature. It is not in dispute that over the self-same incident the accused persons lodged P.S. Case No. 34/84 but it ended in final report under Section 173, Cr.P.C., as the injuries were found to be simple in nature and as such, the offence became a non-cognizable one. We have noticed from the evidence of Grama Rakhi (P.W.1) that while warding off the attack, P.W.2 was tossing the thenga. It is in his evidence also that both the complainant party and the accused party stood face to face in a fighting mood carrying lathis in their hands. P.W.1, however, separated them and sent them to their respective houses. He is a Grama Rakhi of village Bantuli. He has no enmity with the accused persons. He has set the law in motion by lodging report at the police-station after ascertaining the incident from injured persons, namely, Baidhar Pradhan (P.W.2) and Manohar Pradhan (P.W.3). He has first taken the deceased Gopal Pradhan (deceased) to Singla P.H.C. and therefrom to Basta Upgraded hospital. Unfortunately. Gopal expired on the same day at about 11.30 a.m. It appears clear that the injured persons were busy in shifting the deceased Gopal to hospital. There was no occasion for them to notice that injuries were sustained by each of the accused persons. Nevertheless, the facts as unfolded during trial, clearly demonstrate that there was mutual fight between the persons over a damaged ridged of a tank. There was no occasion for them to notice that injuries were sustained by each of the accused persons. Nevertheless, the facts as unfolded during trial, clearly demonstrate that there was mutual fight between the persons over a damaged ridged of a tank. The dispute between the parties was with regard to possession of tank that culminated in the death of Gopal, a young man. It has been elicited from P.W.1 that there was no ill-feeling or enmity between the parties before the occurrence. In my view, the prosecution as unfolded its case in clear terms. There had been no attempt to hide anything. The evidence adduced by the prosecution is so clear and cogent, so probable, consistent and creditworthy that it is very difficult to disbelieve its case. Moreover, there has been no attempt to suppress the truth of the incident. The counter case initiated by the accused persons resulted in the final report. Therefore, I have no hesitation to reject the argument advanced by the learned counsel for the appellant in this Tegard. On an analysis of evidence, I find that the Court below has come to a just decision and as such, it requires no interference by this Court. 12. In view of what goes before, I find no merit in the appeal which is dismissed. The order of conviction and sentence is upheld. The appellants do surrender to the bail bands forthwith. Final Result : Dismissed