JUDGMENT : A. Pasayat, J. - Appellants Laxmidhar Biswal and Manu Biswal (hereinafter referred to as 'accused' by respective names) faced trial along with four others for offence punishable under Sections 148 and 302/149 of Indian Penal Code, 1860 (in short, 'IPC') for allegedly having committed rioting with deadly weapons and causing death of Iswar Parida (hereinafter referred to as 'deceased') in prosecution of their common object. While accused-appellants were found guilty by learned Sessions Judge, Puri other four were acquitted. Accused Laxmidhar has been convicted under Section 302, IPC; while accused Manu Biswal has been convicted under Section 302 read with Section 34, IPC and each one of them has been sentenced to undergo rigorous imprisonment for life. 2. Prosecution version as unfolded during trial essentially is as follows: On 24.3.1988 at about 11 p.m. the deceased-informant Abhimanyu Parida (P.W.5) and Udayanath Parida (P.W.1) were returning to their village Chandradeipur from village Belunga. They saw accused persons coming from other direction at the turn of the road leading to their locality. Iswar and Udayanath focussed their torch light and recogninsed the accused persons. Accused Laxmidhar Biswal was armed with a spring knife, accused Benu Biswal was holding a tenta, accused Kanhu Biswal was armed with a farsa and other three were holding a lathi each. They gave a chase to the informant and his companions. They started running towards direction from which they had come. Abhimanyu was in the front followed by Udayanath, deceased being the last. Accused persons chased deceased up to the backyard of one Budhia Behera which is by the side of Mouzibag - Kentia road. There on the cement platform accused Manu caught hold of the left hand of the deceased and accused Laxmidhar stabbed with a spring knife on the right side abdomen below the ribs margin causing bleeding injury. After covering certain distance, deceased fell down and became unconscious. Abhimanyu and Udayanath had changed direction when they found accused persons were chasing the deceased towards backyard of Budhia Behera. They witnessed the stabbing standing a few cubits away from the spot. After the accused persons left the place, Abhimanyu and Udayanath attended to the deceased. They tried to stop bleeding by pressing a cloth over the, wound. Abhimanyu went to a nearby pond and brought water by soaking his cloth, but the deceased was not in a position to drink water. After the accused persons left the place, Abhimanyu and Udayanath attended to the deceased. They tried to stop bleeding by pressing a cloth over the, wound. Abhimanyu went to a nearby pond and brought water by soaking his cloth, but the deceased was not in a position to drink water. On hearing their cry for help, many people gathered at the spot, Udayanath and Abhimanyu narrated the incident before them. Deceased was carried in a bullock cart upto Mouzibag Chhak and from there deceased was taken in a autorickshaw to Sakhigopal Government hospital where he was declared dead. That night at about 2.30 a.m. the officer-in-charge of Pipili P.S. received information through Gramrakhi about the incident. After making Station Diary Entry, he proceeded to the hospital and on the oral information of informant, F.I.R. was drawn up, investigation was undertaken and all the accused persons except Manu and Bimbadhar were apprehended and forwarded to custody. Blood stained wearing apparels of accused Manu, Benu and Laxmidhar were also seized. Blood stained apparels of three accused persons and the deceased along with blood stained materials and sample collected were sent to the Director of State Forensic Laboratory, Rasulgarh, Bhubaneswar for chemical examination. On completion of investigation, charge-sheet under Section 302/34, IPC was submitted showing accused Manu and Bimbadhar as absconders. 3. Accused persons pleaded innocence in the trial. Their stand was that there was no such occurrence as alleged. On the other hand, deceased Iswar, Abhimanyu, Sobani Pradhan, Kasi Parida, Sudarsan Pallei, Udayanath and Aintha Pradhan assaulted accused Laxmidhar, Benu and Kanhu in that night at about 10 p.m. for which Laxmidhar lodged F.I.R. at the Pipili P.S. against them and Pipili P.S. Case No. 53 of 1988 under Sections 341, 323, 324/34 IPC was registered. On police requisition three injured persons were medically examined. It is their further case that there was long standing civil and criminal litigations between the parties and due to previous enmity and grudge, a false case has been foisted as a counter-blast. 4. Ten witnesses were examined to further the prosecution version. As indicated above, Abhimanyu and Udayanath claimed to be eye-witnesses to the occurrence. On postmortem examination, the Doctor (P.W.9) found one cut injury over the right side of the abdomen below the rib margin on the mid axillary line 2" above the iliac crest of dimension 2" x 1" x ?". Ten witnesses were examined to further the prosecution version. As indicated above, Abhimanyu and Udayanath claimed to be eye-witnesses to the occurrence. On postmortem examination, the Doctor (P.W.9) found one cut injury over the right side of the abdomen below the rib margin on the mid axillary line 2" above the iliac crest of dimension 2" x 1" x ?". In the cross-examination he stated that no vital organ was affected by the injury. Blood found in the abdominal cavity was flowing from the external injury and injury by itself without shock could not have caused death. He further stated in his cross examination that without injury there may be neurogenic shock which may be due to exertion on long walk. These aspects assume significance in view of his statement that cause of death was due to neurogenic shock with injury to the abdomen by sharp cutting weapon. Considering materials on record, conviction was recorded and sentence imposed as aforesaid. 5. judgment of conviction and sentence is assailed by accused-appellants on the ground that there was no acceptable evidence to warrant a conviction. In the feeble light on a dark night there was no scope for any identification and this aspect has been lost sight of. Admitted position being that there was long standing rivalry between the parties, false implication cannot be ruled out and this aspect was lost sight of by learned trial Judge. There was delayed examination of P.W.1. which is suspicious. Injuries of accused have not been explained. Lastly, it was submitted that there was one knife blow on a non-vital part and Section 302 has no application. Learned counsel for State on the other hand supported conviction and sentence. Admittedly there was hostility between the parties on account of several civil and criminal cases. Enmity, interestedness and relationship are no ground to warrant outright rejection of evidence tendered by witnesses. The Court has to scrutinise such evidence with care and caution, before acting on it. Prosecution evidence has to be analysed in that spirit. If evidence of witnesses is found to be credible and cogent, they can be acted upon, notwithstanding any admitted hostility between the parties. Question is whether these aspects were kept in view by learned trial judge. In paragraph-12 of the judgment learned trial Judge has elaborately dealt with these aspects. Prosecution evidence has to be analysed in that spirit. If evidence of witnesses is found to be credible and cogent, they can be acted upon, notwithstanding any admitted hostility between the parties. Question is whether these aspects were kept in view by learned trial judge. In paragraph-12 of the judgment learned trial Judge has elaborately dealt with these aspects. He has referred to previous enmity between the parties, and thereafter proceeded to analyse evidence. He has found evidence of P.Ws 1 and 5 to be cogent. Therefore, there is nothing illicit in his acting on such evidence. 6. Next question is about identification. The incident took place on the previous night of Ashokastami. It was a bright fortnight. Bound the time of alleged incident, the moon ought to have been in the sky though somewhat at waning stage. Besides the moon light, the deceased and P.W.1 were holding torch lights which, according to the witnesses, were focused when they saw the accused persons coming towards them, from a distance of 15 to 20 cubits. With the help of such natural and artificial lights, possibility of recognition cannot be doubted. Even in the darkness people can be identified by their gait, stature, manner of movement and also by voice. It would all depend upon proximity of the parties and if they are known to each other, identification would not be difficult. The deceased, accused persons and witnesses belong to the same village and were well known to each other. Therefore, plea that identification would not have been possible, has no substance. 7. Examination of P.W.1 after two days of the incident was highlighted. It is true that when a vital witness is not examined for a considerable length of time, a doubt can arise. But where reasons are indicated to explain delay, Court has to consider it. In the case at hand, undisputedly P.W.1 was examined two days after. According to this witness, he accompanied younger brother of deceased to Sakhigopal hospital and there he learnt that dead body was sent to District Headquarter Hospital, Puri for postmortem examination. He came to Puri and attended postmortem examination and he along with others cremated the dead body of deceased at Puri and thereafter returned to his village immediately. Thereafter he was examined by the I.O. The name of P.W.1 figures as an eye-witness in the F.I.R. which was lodged without delay. He came to Puri and attended postmortem examination and he along with others cremated the dead body of deceased at Puri and thereafter returned to his village immediately. Thereafter he was examined by the I.O. The name of P.W.1 figures as an eye-witness in the F.I.R. which was lodged without delay. Delay in examination of P.W.1 has been properly explained and that does not take away cogency of evidence tendered by this witness. 8. Coming to the question whether non-explanation of injuries alleged to have been received by accused affected credibility of prosecution version. It has to be noticed that as per allegation in Pipili P.S. Case No. 52 dated 25.3.1988 alleged incident took place at about 10 p.m., leading to death of deceased took place around at 11 p.m. Substance of allegation as indicated in the F.I.R. in Pipili P.S. Case No. 53 of 1988 is to the affect that at about 10 p.m. on 24.3.1988 the deceased and some of the prosecution witnesses wrongfully restrained accused Laxman, accused Benu and assaulted them. Non-explanation of injuries by the prosecution will not affect prosecution case where injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it outweighs the effect of the omission on the part of prosecution to explain the injuries. As observed by apex Court in Ramelgan Singh v. State of Bihar, AIR 1972 SC 2593 , prosecution is not called upon in all cases to explain the injuries received by the accused persons. It is for the defence to put questions to the prosecution witnesses regarding the injuries of the accused persons. When that is not done, there is no occasion for the prosecution witnesses to explain any injury on the person of an accused. In Harekrishna Singh v. State of Bihar, AIR 1988 SC 863 it was observed that the obligation of the prosecution to explain the injuries sustained by the accused in the same occurrence may not arise in each and every case. In other words, it is not an invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence. The burden on proving guilt of the accused is undoubtedly on the prosecution. The accused is not bound to say anything in defence. In other words, it is not an invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence. The burden on proving guilt of the accused is undoubtedly on the prosecution. The accused is not bound to say anything in defence. Prosecution has to prove the guilt of the accused beyond all reasonable doubts. If the witnesses examined on behalf of the prosecution are believed by the Court in proof of guilt of the accused beyond reasonable doubt, question of obligation of prosecution to explain injuries sustained by the accused will not arise. When the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and under what circumstances injuries have been inflicted on the person of the accused. It is more so when the injuries are simple or superficial in nature. 9. It is the cardinal principle of criminal justice that defence plea even if false does not establish the prosecution case and the prosecution must prove its cases beyond reasonable doubt. It has to stand on its own legs or fall by its own weakness. Prosecution in the case at hand has proved its case to the hilt. The F.I.R. was lodged with promptitude. The version as indicated in the said report is in consonance with the evidence tendered in Court. Evidence of the eye-witnesses does not suffer from any infirmity to warrant rejection. Accused persons have been rightly held to be authors of the crime. 10. The residual question is whether an offence under Section 302, IPC is made out. With great vehemence it has been urged that only one blow was given and that too on a non-vital organ. Great emphasis is laid on the evidence of Doctor to show the knife injury per se was not responsible for the death. It is also urged that evidence of witnesses was that after giving a blow, accused Laxmidhar ran away. 11. It cannot be laid down as a rule of general application that whenever one blow is given, Section 302 would be ruled out. It would all depend upon the circumstances of the case. Manner of assault, weapon used, part of body where injury was inflicted are relevant, Background facts are to be kept in mind. 11. It cannot be laid down as a rule of general application that whenever one blow is given, Section 302 would be ruled out. It would all depend upon the circumstances of the case. Manner of assault, weapon used, part of body where injury was inflicted are relevant, Background facts are to be kept in mind. In order to bring in application of clause Thirdly of Section 300 it has to be shown that particular injury inflicted was intended to be given with the intention of causing death. 12. The distinctive feature between the cases covered under Sections 302 and 304, IPC are essentially as follows: Section-299 Section-300 A person commits culpable homicide if the act by which the death is caused is done... Subject to certain exceptions culpable homicide is murder if the act by which the death is done... Intention (a) with the intention of causing death; or with the intention of causing death; or (b) with the intention of causing such bodily injury as is likely to cause death; or (2) with the intention causing such bodily injury as the offender knows to be likely to cause death of the person to whom the harm is caused; or (3) with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or Knowledge (c) with the knowledge that the act is likely to cause death (4) with the knowledge that the act is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above. The occurrence took place in the night, and it would be unsafe to hold that particular injury was intended to bring in application of Clause Thirdly of Section 300. In the peculiar facts of the case, it would not be proper to record conviction under Section 302, IPC, but under Section 304, Part II. 13. So far as accused Manu is concerned, it is submitted that there is no cogent material to bring in application of Section 34, IPC. The said provision lays down a principle of joint liability in the doing of a criminal act. 13. So far as accused Manu is concerned, it is submitted that there is no cogent material to bring in application of Section 34, IPC. The said provision lays down a principle of joint liability in the doing of a criminal act. The essence of that liability is to be found in the existence of common intention and mating the accused leading to the doing of a criminal act in furtherance of such intention. It deals with the doing of separate acts, similar or diverse, by several persons; if all are done in furtherance of common intention, each person is liable for the result of them all as if he had done them himself; for 'that act' and 'the act' in the latter part of the Section must include the whole Section covered by a 'criminal act' in the first part, because they refer to it. Constructive liability under Section 34 may arise in three well defined cases. A person may be constructively liable for an offence which he did not actually commit by reason of: (1) the common intention of all to commit such an offence (Section 34) (2) his being a member of a conspiracy to commit such an offence (Section 120-A) (3) his being a member of an unlawful assembly, the members whereof knew that an offence was likely to be committed (Section 149) Section 34 is framed to meet a case in which it may be difficult to distinguish between the acts of individual members of a party or to prove exactly what part was taken by each of them. The reason why all are deemed guilty in such cases is, that the presence of accomplices gives encouragement, support and protection to the person actually committing the act. The provision embodies the common-sense principle that if two or more persons intentionally do a thing jointly it is just the same as if each of them had done it individually. In view of the factual aspects highlighted above, the inevitable conclusion is that accused Manu is equally liable for commission of offence. 14. In conclusion, conviction of Laxmidhar under Section 302, is altered to one under Section 304, Part II read with Section 34, IPC. Conviction of Manu is altered to Section 304, Part II, IPC. Custodial sentence of ten years would meet the ends of justice. 15. The appeal is allowed to the extent indicated above. 14. In conclusion, conviction of Laxmidhar under Section 302, is altered to one under Section 304, Part II read with Section 34, IPC. Conviction of Manu is altered to Section 304, Part II, IPC. Custodial sentence of ten years would meet the ends of justice. 15. The appeal is allowed to the extent indicated above. A. Deb, J. - I agree. Final Result : Allowed