R. K. DASH, J. ( 1 ) THE appellants hereinafter referred to as 'the accused' have challenged the judgment and order of conviction passed by the learned Sessions Judge, Balasore, in Sessions Trial No. 61 of 1986. By the impugned judgment accused Maheswar Behera has been convicted under Sections 304, Part II, 148 and 323 read with Section 149, IPC and sentenced to undergo rigorous, imprisonment for four years for the offence under Section 304, Part II, I. P. C. , to undergo rigorous imprisonment for six months for the offence under Section 148, IPC and to undergo rigorous imprisonment for one month for the offence under Section 323 read with Section 149, IPC. Accused Brahmananda Behera and Jagannath Behera have been convicted under Sections 304, Part II, read with Sections 149, 148 and 323/149, IPC and sentenced to undergo rigorous imprisonment for four years for the offence under Section 304, Part II read with Section 149, to undergo rigorous imprisonment for six months for the offence under Section 148, I. P. C. and to undergo rigorous imprisonment for one month each for the offence under Section 323/149, I. P. C. Accused Gani @ Sanyasi Behera and Prasanta @ Dhadi Behera have been convicted under Section 304, Part II read with Section 149, I. P. C. and sentenced to pay a fine of Rs. 1,000/-, in default to undergo rigorous imprisonment for two months each. ( 2 ) PROSECUTION case, culled out during trial may be briefly stated thus : Ramakanta Behera (hereinafter referred to as 'the deceased') was the brother of Raghunath Behera, P. W. 1, their father being Akshay alias Thakar Behera, P. W. 3. On 18-2-1986 at about 3. 00 p. m. Raghunath Behera, P. W. 1, his wife and sister were sitting on their front verandah while his father Thakar and the deceased were sitting in the outer Courtyard. Adjoining the courtyard their lies a passage. At this moment accused Maheswra Behera while going through that passage, wife of P. W. 1 who was then suffering from cold, coughed to which he took exception and hurled abuses at her. To this when the deceased raised protests, he gave him threats and went away. Adjoining the courtyard their lies a passage. At this moment accused Maheswra Behera while going through that passage, wife of P. W. 1 who was then suffering from cold, coughed to which he took exception and hurled abuses at her. To this when the deceased raised protests, he gave him threats and went away. About half an hour thereafter he along with other accused persons being variously armed came to the place where the deceased and others were sitting and of them accused Maheswar who was armed with crowbar, gave a blow on the head of the deceased and thereafter other accused person simultaneously assaulted him with lathis held by them. When P. W. 1 and his father P. W. 3 protested, they were also beaten by the accused persons. In the meantime, Chintamani Behera P. W. 2 hearing hullah arrived at the place of incident whereafter all the accused persons left the spot. On being so assaulted the deceased died at the spot. P. W. 1 orally reported the incident at Balasore Gadar P. S. and accordingly the F. I. R. , Ext. 1 was drawn up. P. W. 5, the Officer in charge proceeded with the investigation in course of which he visited the spot, examined the witnesses, seized blood stained earth and one Lungi, M. G. II, searched the houses of the accused persons and seized some lathis, held inquest over the dead body of the deceased, sent the dead body for postmortem examination, issued requisition for medical examination of P. W. 1 and 3, arrested accused Maheswar who, while in custody, gave recovery of a crow-bar M. O. IV, prepared the spot map, sent the blood-stained earth and other seized articles for chemical examination and on completion of investigation, placed charge-sheet under Sections 147, 148, 149, 302 and 323, IPC against the accused persons to stand their trial. ( 3 ) THE plea of the accused persons was a complete denial of the prosecution case. Their further plea was that the deceased being not in good terms with his father and brother, was residing in the house of accused Maheswar. At the alleged time of occurrence when the deceased attempted to have a forcible entry into his ancestral house, P. Ws. 1 and 3 obstructed and assaulted him and in turn he assaulted them with lathis, as a result they sustained injuries. At the alleged time of occurrence when the deceased attempted to have a forcible entry into his ancestral house, P. Ws. 1 and 3 obstructed and assaulted him and in turn he assaulted them with lathis, as a result they sustained injuries. Besides, while being examined under Section 313, Cr. P. C. they have taken the plea of alibi, inasmuch as at the time of alleged incident they were not present at the spot, but were present elsewhere. ( 4 ) IN order to bring home the charges to the accused persons the prosecution examined five witnesses of whom P. Ws. 1, 2 and 3 are the eye-witnesses to the occurrence, P. W. 4 is the doctor who held autopsy on the dead body of the deceased and examined the injured P. Ws. 1 and 3 and P. W. 5 is the investigating Officer. The accused persons in support of their defence plea examined two witnesses. The learned Sessions Judge on an appraisal of the evidence adduced by the parties believed the prosecution case, rejected the defence plea and convicted and sentenced the accused persons as hereinbefore stated. ( 5 ) LEARNED counsel appearing for the accused persons challenged the legality and correctness of the finding recorded by the trial Court contending, inter alia, that all the witnesses named in the F. I. R. were not examined and no explanation having been offered for their non-examination, adverse inference should have been drawn against the prosecution. He further submitted that P. Ws. 1 and 3 being highly interested witnesses and P. W. 2 being inimically disposed towards the accused persons learned Court below should not have relied upon their evidence to base conviction without there being independent corroboration. He went on to argue that it being the settled principle of law that 'fouler the crime higher the proof', the evidence of PWs. 1 to 3 which is highly discrepant, should have been viewed with suspicion. Learned Additional Standing Counsel, on the other hand, would urge that the impugned judgment and order of conviction being based on proper appreciation of the evidence does not call for any interference in the present appeal. ( 6 ) ADMITTEDLY the deceased died of the injuries received at the time of incident. Learned Additional Standing Counsel, on the other hand, would urge that the impugned judgment and order of conviction being based on proper appreciation of the evidence does not call for any interference in the present appeal. ( 6 ) ADMITTEDLY the deceased died of the injuries received at the time of incident. The autopsy doctor P. W. 4 also opined that the injury on the vertex with corresponding internal injuries which were antemortem in nature were sufficient to cause death in the ordinary course of nature. The question, therefore, is as to who caused the injuries on the deceased, whether the accused persons, as urged by the prosecution, or P. Ws. 1 and 3, as pleaded by the defence. P. W. 1 is the brother of the deceased. According to him, on the date and time of the incident all the accused persons being armed with lethal weapons, inasmuch as accused Maheswar being armed with crowbar and others with lathis came to his outer Courtyard and of them accused Maheswar gave a blow on the head of the deceased on receiving which he fell down on the ground. Thereafter he along with other accused persons simultaneously assaulted him. He and his father, P. W. 3 when protested, they too were assaulted. To the same effect is the version of P. W. 3. He attributed accused Maheswar to have caused the injury on the head of the deceased by a crowbar. So far as other accused persons are concerned, he would say that they assaulted the deceased with lathis held by them. He would further say that when he went to the rescue of the deceased, his son, he was also beaten by the accused persons. The fact that both P. Ws. 1 and 3 received injuries at the time of incident finds support from the medical evidence of the doctor, P. W. 4. From the injury reports (Exts. 5 and 6) as also from his evidence it is noticed that the above two witnesses had sustained injuries on their person. The fact that both P. Ws. 1 and 3 received injuries at the time of incident finds support from the medical evidence of the doctor, P. W. 4. From the injury reports (Exts. 5 and 6) as also from his evidence it is noticed that the above two witnesses had sustained injuries on their person. To be more specific, P. W. 1 had two contusions, one on the middle of the right arm and the other on the left wrist and P. W. 3 had received 3 lacerated wounds, one on the fore-head and two on the vertex, right parietal bone, besides 5 abrasions on left lower leg, right little finger, left side waist and left shoulder. Thus it is, these two witnesses P. Ws. 1 and 3 are related to the deceased. But mere relationship is no ground to discredit their testimony, if they are otherwise found to be reliable and trustworthy. The fact of their having received injuries, as noted by the doctor P. W. 4, probabilises their presence during the occurrence. Added to that, they in their evidence have given a graphic picture as to how the incident originated, resulting in death of the deceased and injuries on their person. They were cross-examined by the defence at length, but nothing substantial could be elicited to impeach their credibility or cast doubt on their veracity. ( 7 ) BESIDES P. Ws. 1 and 3, the only independent witness on whose evidence prosecution heavily relies upon is P. W. 2. He is a native of village Bahada, but he stays in village Ranasahi to which village the parties belong. As deposed to by him, at the time of incident while he was going to his paddy field he heard hulla emanating from near the house of P. W. 1 and rushed there. He found all the 5 accused persons present being variously armed and of them accused Maheswar assaulted on the head of the deceased with a crowbar. The deceased having received such blow when fell down, the other accused persons assaulted him with lathis. He further stated that P. Ws. 1 and 3 when protested, they were also assaulted. He is neither related to the deceased nor inimically disposed towards the accused persons. His evidence is cogent and convincing and lends assurance to the evidence of P. Ws. 1 and 3. He further stated that P. Ws. 1 and 3 when protested, they were also assaulted. He is neither related to the deceased nor inimically disposed towards the accused persons. His evidence is cogent and convincing and lends assurance to the evidence of P. Ws. 1 and 3. ( 8 ) IT has been argued by the defence that other eye-witnesses named in the F. I. R. having not been examined, prosecution case should be viewed with suspicion. I am not prepared to accept such contention, the reason being that it is not obligatory on the prosecution to examine each and every eye-witness to the incident. On a scrutiny of the F. I. R. Ext. 1, I find that the informant named Kartik Behera and Chintamani Behera and others to have witnessed the incident. Of them the prosecution examined Chintamani Behera, P. W. 2, on independent and disinterested witness who supported its case in material particulars and the settled principle of law being that evidence is to be weighed and not counted, no adverse inference can be drawn against the prosecution for not examining the other eye-witnesses. ( 9 ) NOW 1et me scrutinise the evidence of D. Ws. 1 and 2 who were examined to support the defence version that it was P. Ws. 1 and 3 who had assaulted the deceased on the date of incident. According to them, relationship between deceased with P. Ws. 1 and 3 was strained and on the date of incident on hearing hulla when they rushed to the place of occurrence, they found that the deceased being armed with lathi, assaulted his father, whereupon his brother (P. W. 1) assaulted him with lathi on his head and other places. Their such evidence is quite absurd and unbelievable. If what they say had actually happened then in normal course either they or any of the accused persons would have rushed to the police station and lodged a report. But they did not. Even when P. W. 5, the Investigating Officer, came to the village to investigate into the case on the report of P. W. 1, D. Ws. 1 and 2 on their own volition did not disclose to him that the deceased died at the hands of his father and brother. They, however, remained silent for long till they were summoned to be examined at the instance of the defence. 1 and 2 on their own volition did not disclose to him that the deceased died at the hands of his father and brother. They, however, remained silent for long till they were summoned to be examined at the instance of the defence. In the circumstances, it is hard to believe their version and to act upon it. ( 10 ) ON reappraisal of the evidence of P. Ws. 1, 2 and 3 coupled with the medical evidence, I concur with the finding of the learned Court below that the prosecution has been able to prove its case against the accused persons beyond reasonable doubt. In that view of the matter, the conviction and sentence recorded against the accused persons are affirmed. ( 11 ) IN the result, the appeal fails and the same is dismissed. Appeal dismissed.