JUDGMENT : A.S. Naidu, J. - The appellant assail the judgment and order of conviction passed by the Addl. Sessions Judge, Bhadrak in Sessions Trial No. 6 of 1996, sentencing Appellant Nos. 1 and 2 u/s 302 IPC for committing murder of Rangadhar Barik and Kunjabehari Barik respectively and sentencing them to undergo Rigorous Imprisonment for life and to pay a fine of Rs. 2,000/- each, in default to undergo further imprisonment of six months. 2. Bereft of unnecessary details, the facts as revealed from the F.I.R. (Ext. - 1) lodged by Srikanta Barik (P.W. 1) who is the son of deceased Rangadhar Barik and brother of deceased Kunjabehari Barik are as follows ; On the night of July 12/13 of 1995, Rangadhar was sleeping in the Eastern side outer verandah whereas Kunjabehari, the other deceased, was sleeping on the Northern side outer verandah of their residential house. At about 4 A.M. of July 13, 1995, the informant heard noise from the Eastern side outer verandah, rushed to the spot and found that his father had fallen down from the verandah and his elder brother Kunjabehari had caught hold of Sanatan and was shouting that accused Sanatan Jena has killed his father. Accused Sanatan was holding a knife and was trying hard to escape from the clutches of Kunjabehari. The four sons of accused Sanatan including his elder son accused Ranjan were trying to free Sanatan from Kunjabehari. Ranjan was inflicting blows by a long knife on Kunjabehari. When informant (P.W. 1) wanted to catch hold of the right hand of Sanatan in which he was holding the knife, he sustained a cut injury on his left thumb. Seeing the occurrence, P.W. 1 shouted. At that moment the accused Ranjan said to have inflicted a stab blow, on the belly of Kunjabehari. Hearing hullah, Ananta Prasad Mohanty (P.W. 3), Malati Barik (P.W. 2), Aiaka Barik (P.W. 4} the widow and daughter of Rangadhar and other witnesses who are staying nearby came running to the spot. Seeing them, accused Ranjan and his other brothers fled away from the spot. The informant (P.W. 1) and witness Ananta Prasad Mohanty (P.W. 3) snatched aware the knife from the accused Sanatan and tied him. With the help of the villagers, they carried Kunjabehari to Bhadrak Sadar Hospital. On the way, near Haripur Nursury Square, Kunjabehari breathed his last. Seeing them, accused Ranjan and his other brothers fled away from the spot. The informant (P.W. 1) and witness Ananta Prasad Mohanty (P.W. 3) snatched aware the knife from the accused Sanatan and tied him. With the help of the villagers, they carried Kunjabehari to Bhadrak Sadar Hospital. On the way, near Haripur Nursury Square, Kunjabehari breathed his last. It is also mentioned in the F.I.R. that a civil litigation was sub-judice between Sanatan Jena and his father Rangadhar Barik and being enraged, accused Sanatan and his sons murdered the father and brother of the informant. On the basis of the aforesaid F.I.R. which was lodged before the Officer-in-Charge, Bhadrak (R) Police Station on July 13, 1995 at 6.45 A.M., Bhadrak (R) P.S. Case No. 188 of 1995 was registered u/s 302 read with Section 34 IPC and after completion of investigation, charge sheet was submitted only against accused Sanatan Jena. In course of hearing, after examination of the informant as P.W. 1, on the basis of a petition filed u/s 319 Cr.P.C., and taking into consideration the evidence of P.W. 1, accused Ranjan Kumar Jena and Niranjan Jena, two sons of Sanatan were called upon to face trial u/s 302/34 IPC for intentionally causing death of Kunjabehari Barik in furtherance of their common intention. It is needless to say that all the accused persons emphatically denied the allegations levelled against them and pleaded innocence. It is further alleged that they have been falsely implicated in the present crimet as civil litigations are pending inter se between the parties. 3. In order to establish their case, the prosecution has examined as many as 11 witnesses out of whom P.W. 1 is the informant, P.W. 2-Malatilata Barik is the widow of Rangadhar Barik, P.W. 4-Alaka Barik is the daughter of deceased Rangadhar, P.W. 3-Ananta Mohanty, is a post-occurrence witness who arrived soon after the occurrence, P.W. 5 is the seizure witness, P.W. 6 is the doctor who examined informant on police requisition, P.W. 7 is the doctor who conducted post mortem examination on the dead body of deceased Kunjabehari, vide report Ext. 7, P.W. 8 is another doctor who examined accused Sanatan Jena and his report is marked Ext. 9, P.W. 9 is the doctor who conducted post mortem examination on the dead body of deceased Rangadhar and the post mortem report is marked Ext. 7, P.W. 8 is another doctor who examined accused Sanatan Jena and his report is marked Ext. 9, P.W. 9 is the doctor who conducted post mortem examination on the dead body of deceased Rangadhar and the post mortem report is marked Ext. 10, P.W. 10 is a police constable who is the seizure witness and P.W. 11 is the Officer-in-charge of Bhadrak (R) Police Station who conducted the investigation and submitted the charge sheet. Apart from the aforesaid oral evidence, the prosecution exhibited as many as 21 documents. 4. At the other hand, no witness was examined from the side of the defence. However, the statement of witnesses Srikanta Barik (P.W. 1), Smt. Malatilata Barik (P.W. 2) and Alaka Barik (P.W. 4) before the I.O. made u/s 161 Cr.P.C. have been marked as Exts. A, B and C respectively on behalf of the defence, the report of the Scientific Officer (Ext. 9) is also relied upon by the defence. 5. The trial court relying upon the evidence of the informant (P.W. 1) who is the only eye-witness to the occurrence as well as the evidence of his mother Malati (P.W. 2), his sister Alaka (P.W. 4) and the independent post-occurrence witnesses (P.W. 3) and after appreciating the evidence of the doctor (P.W. 9) as well as P.W. 7, arrived at a conclusion that both Rangadhar Barik and Kunja Barik met with homicidal death. After perusing the evidence as well as the post mortem reports Ext. 7 and 10, coupled with the inquest reports Exts. 3 and 4, we find no reason to differ with the said finding and confirm the same. The trial court after vivid discussion of evidence, both, oral and documental, held as follows : (1) The evidence of the sole eye-witness, P.W. 1 is clear, cogent and consistent and is not demolished by medical evidence and therefore, I find nothing as to why such evidence cannot be relied on and made the basis for an order of conviction. (2) The prosecution has successfully proved through the mouth of P.Ws. 3 and 4 that they have seen the accused Sanatan Jena, who was holding a knife. (2) The prosecution has successfully proved through the mouth of P.Ws. 3 and 4 that they have seen the accused Sanatan Jena, who was holding a knife. (3) The discrepancies in the evidence of prosecution witnesses do not shake the basis version of the prosecution case and are only normal errors of perception or observation and should not be given importance, (4) In the instant case, the prosecution has successfully proved presence of accused Sanatan at the place of occurrence being armed with a Bhujali (M.O.I) along with Ranjan who inflicted a knife blow on the belly of Kunja. (5) The prosecution has also successfully proved from the mouth of P.W. 2, 3 and 4 that accused Sanatan was present holding a knife. The medical evidence supports the injury inflicted on the person of deceased Rangadhar and Kunjabehari. On the basis of the aforesaid finding, the trial court found both the appellants guilty u/s 302 read with Section 34 IPC. The trial court, however, held that the prosecution has failed to substantiate the charges against the accused Niranjan and held him not guilty and acquitted him. 6. We have heard learned counsel for the parties at length. Mr. Acharya, learned counsel for the accused appellants strenuously took us through the entire oral evidence and submitted that there is no iota of evidence to connect the appellants with the alleged crime. It is further submitted that neither P.W. 1 nor any other witness has seen the appellant-Susanta inflicting any injury on the deceased Rangadhar. Admittedly, when P.W. 1 arrived at the place of occurrence, Rangadhar had fallen from the verandah injured. In fact, after hearing hullah made by Kunjabehari, P.W. 1 proceeded to the place of occurrence and found the tussle between deceased Kunjabehari and accused Sanatan. Kunja was trying his level best to hold-on to Sanatan whereas Sanatan was trying to wriggle away from his clutch and ran away. Thus, according to Mr. Acharya, no one has seen the assault of Rangadhar and the statement made by Kunja, that Sanatan killed his father Rangadhar, cannot be accepted as the same is only hear-say. Mr. Acharya, further submitted that there are many discrepancies between the facts narrated in the F.I.R. and the evidence adduced in Court. P.W. 1, the sole eye-witness has categorically stated that he scribed the F.I.R. at his house before carrying his injured brotherto Bhadrak Hospital, whereas Ext. Mr. Acharya, further submitted that there are many discrepancies between the facts narrated in the F.I.R. and the evidence adduced in Court. P.W. 1, the sole eye-witness has categorically stated that he scribed the F.I.R. at his house before carrying his injured brotherto Bhadrak Hospital, whereas Ext. 1-the F.I.R. reveals that while carrying Kunja to Bhadrak Hospital, he died on the way at Haripur Nursury Square. Thus, the statement that the F.I.R. was scribed before carrying Kunja to the Hospital cannot be accepted. It is further submitted that the statement said to have been made by Kunja before his death to the effect that Sanatan killed his father, cannot be treated as dying declaration as the same does not satisfy the basic requirement of Section 32 of Evidence Act, as the same is not a statement made by the deceased relating to the cause of his death. Relying upon the statements made by P.W, 1 u/s 161 Cr.P.C. before the I.O. (Ext. A) as well as the deposition of the O.I.C., Bhadrak (R) P.S.-P.W. 11, Mr. Acharya learned counsel for the appellants submitted that P.W. 1 had not stated before the police that he has seen Ranjan Jena assaulting his brother Kunja by means of a knife. It is further submitted that none of the witnesses had breathed a word relating to the assault said to have been made by Ranjan on Kunjabehari. In support of this submission, Mr. Acharya also relied upon the statements made by the occurrence witnesses u/s 161 Cr.P.C. before the I.O. at the very initial stage, marked as Exts. A, B and C and also led us through the evidence of the I.O. (P.W. 11), who was confronted with the said statements. Mr. Acharya also tried to convince us that due to previous enmity as well as pendency of the civil suit, the prosecution has falsely named the appellants as assailants and there is no iota of evidence to entangle the appellants with the crime and thus, it is a fit case where both the appellants should be acquitted. 7. Mr. A. K, Mishra, learned Standing Counsel for the State at the other hand supported the judgment passed by the trial court and submitted that in view of the categorical testimony made by the informant (P.W. 1) which is corroborated by the other 3 witnesses, being P.Ws. 7. Mr. A. K, Mishra, learned Standing Counsel for the State at the other hand supported the judgment passed by the trial court and submitted that in view of the categorical testimony made by the informant (P.W. 1) which is corroborated by the other 3 witnesses, being P.Ws. 2, 3 and 4, the presence of Sanatan holding a knife at the spot, cannot be disbelieved. It is also submitted that the discrepancies pointed out in the evidence are very meagre in nature and do not in any way affect the sole basis of the prosecution case. In view of the fact that presence of Sanatan at the place of occurrence in wee hours of the morning holding a knife, has been substantiated by cogent evidence and all the witnesses have seen the accused persons running away from the place of occurrence the conclusion is irresistible that the appellants are the authors of the crime and it is a fit case where the order of conviction and sentence should not be interfered with. 8. To appreciate the rival contentions, being the final court of facts, we once again scrutinised the evidence of all the witnesses as well as the documentary evidence. P.W. 1, the informant, clearly deposed that when he arrived at the spot, he found the deceased Rangadhar had fallen from the verandah and lying there and there was a tussle between accused Sanatan and Kunjabehari. He has also stated that he found Ranjan appellant No. 2, Niranjan and Khirod, the sons of accused Sanatan trying to release Sanatan from the clutches of Kunjabehari. The later part of his statement is neither corroborated by the statement made by him u/s 161 Cr.P.C. (Ext.-A) nor by P.W. 11, the Investigating Officer nor by any evidence of any other witness. P.W. 2-wife of deceased Rangadhar and the mother of Kunjabehari, who also arrived at the same time as P.W. 1, saw her husband lying on the ground and her son Kunjabehari holding Sanatan. In her evidence, she has stated that she noticed three sons of Sanatan going away from the site. But then her statement that she saw three sons of accused Sanatan going away from the spot, is absent in her statement recorded u/s 161 Cr.P.C. (Ext.-B). In her evidence, she has stated that she noticed three sons of Sanatan going away from the site. But then her statement that she saw three sons of accused Sanatan going away from the spot, is absent in her statement recorded u/s 161 Cr.P.C. (Ext.-B). P.W. 11, the Investigating Officer also, on being confronted, has clearly stated that P.W. 2 did not state before him the name Ranjan, Niranjan and Khirod. P.W. 4, the daughter of Rangadhar, the only other family member, who arrived almost simultaneously, did not breath a word about presence of Ranjan, Niranjan and Khirod. 9. The only other post-occurrence witness i.e. P.W. 3 has also not named any of the three sons of accused Sanatan. However, all the witnesses have clearly deposed that accused Sanatan was present at the spot holding a knife in his hand and the deceased Kunjabehari had grabbed him and was shouting that he has stabbed his father Rangadhar. This statement is not shaken in the cross-examination. The defence has also totally failed to dislodge the evidence against presence of Sanatan with a knife at the spot at the wee hours of the morning of the date of occurrence. 10. Relying upon the decision in the case of V. Prabhakar Rao v. State of Orissa 53 (1982) CLT 368, the learned counsel for the appellants submitted that the evidence of none of the witnesses can be relied upon as there is lots of discrepancies which remained unexplained. The learned counsel has also relied upon decisions reported in Hadu Vs. The State, ; Jetha Ram Vs. The State of Rajasthan, ; Shayam Nandan Singh and Others Vs. The State of Bihar, . 11. We have carefully gone through those decisions. There is no dispute with regard to the legal proposition enunciated in the aforesaid decisions. A cumulative assessment of the entire evidence, leads to an irresistible conclusion that accused Sanatan's presence at the spot with a knife, is corroborated by all the witnesses. Presence of Sanatan is also fortified by the fact that he was caught red handed at the spot of occurrence and was detained till the police came and arrested him. The only witness who saw the occurrence being Kunja unfortunately was murdered while trying to restrain accused Sanatan from fleeing from the place of occurrence. Presence of Sanatan is also fortified by the fact that he was caught red handed at the spot of occurrence and was detained till the police came and arrested him. The only witness who saw the occurrence being Kunja unfortunately was murdered while trying to restrain accused Sanatan from fleeing from the place of occurrence. The consistent case of all the witnesses is that there was a tussle between accused Sanatan who tried his level best to escape from Kunjabehari and that accused Sanatan was holding a knife in his hand. It is also clear from the evidence that while Sanatan tried to escape, Kunjabehari was trying hard to hold him. In the process, both of them fell to the ground. All along Sanatan was holding a knife in his hand. All these materials, points a finger only at Sanatan and connects him with the crime. The circumstantial evidence clearly reveals that Sanatan had inflicted the fatal injury on Rangadhar. Not only he was caught red handed, but his presence with a knife is seen by almost all the witnesses. The prosecution evidence, thus, is sufficient to conclusively hold accused Sanatan guilty of committing the offence. The guilt against accused Sanatan is cogently and firmly established. A cumulative assessment of the circumstance forms a chain and there is no escape from the conclusion that within all human probability, the murder of Rangadhar was committed by accused Sanatan and none else. We have, therefore, absolutely no hesitation to confirm the conviction and sentence against appellant-Sanatan. So far as the death of Kunjabehari is concerned, the same is clouded with suspicion, There is no eye-witness to the occurrence. A strong presumption arises as to whether Kunja met his death due to the injury caused in course of tussle with Sanatan, or due to any other injury. In the absence of cogent evidence coupled with the discrepancy in the F.I.R. and initial statements Exts. A, B and C it is not possible to arrive at a conclusion beyond all reasonable doubt as to how and who caused the fatal injury on Kunjabehari. The evidence, so far as the other accused Ranjan is concerned, is not fully established. Discrepancies reaches large between the depositions made in the court and the initial statements made before the I.O.-P.W. 11, as would be seen from Exts.-A, B and C as well as evidence of P.W. 11. The evidence, so far as the other accused Ranjan is concerned, is not fully established. Discrepancies reaches large between the depositions made in the court and the initial statements made before the I.O.-P.W. 11, as would be seen from Exts.-A, B and C as well as evidence of P.W. 11. No independent witness has seen accused Ranjan-appellant No. 2 at the spot. Last but not the least, after investigation of the entire case and after being satisfied that evidence against accused Ranjan is not satisfactory, charge sheet was submitted only against accused Sanatan. The deposition in court in course of trial so far as it relates to accused Ranjan, is concerned, appears to be after thought and cannot be relied upon without a pinch of salt. We, therefore, have no hesitation to acquit appellant No. 2-Ranjan on the ground of benefit of doubt. 12. Accordingly, the criminal appeal is allowed in part. The conviction and sentence, so far as appellant No. 1-Sanatan is concerned, is confirmed and the order of conviction and sentence, so far as appellant No. 2-Ranjan is concerned, is set aside. Appellant No. 2 be set at liberty forthwith, if his detention is not required in connection with any other case. Pradipta Ray, J. 13. I agree. Final Result : Partly Allowed