JUDGMENT : B. Panigrahi, J. - The orders of conviction u/s 302/149. IPC against the accused-Appellants, under Sections 341/149. IPC against accused-Appellants Nos. 1 to 6 and u/s 148, IPC against Appellants 1 to 7 and the sentence to undergo imprisonment for life u/s 302/149 IPC to undergo S.I. for one month u/s 341/149. IPC and to undergo R.I. for two years u/s 148. IPC, the sentences were directed to run concurrently, passed by the learned Second Addl. District Judge. Berhampur in S.C. No. 44/285 of 1993 (GDC) have been assailed in this appeal. 2. The essential facts leading to this appeal are as follows: There were two factions in village Makarjhola under Hinijilikatu Police Station. One group was led by accused-Appellants D. Narayan, who was a supporter of Congress Party and the otherwas led by deceased P. Lokanath, who was a supporter of Janata Dal. Preceding this'incident, in a Grama Panchayat election one D. Raja Rao being supported by deceased. P. Lokanath was elected as Sarpanch. From then there was an ill-feeling between the two groups. The election fued gave rise to several criminal litigations between the two factions pending in different Courts before the date of incidents. It is the case of the prosecution that the Appellants and their other associates in order to feed fat previous grudge were in search of an opportunity to cause causality to the other group. 3. In this background it is alleged that on 14.11.92 around 6.00 A.M. the informant M. Rama Murty (P.W.1) came out after taking tea from the tea-stall of Shayamsundar Sahu situated in Adua street of village Makarjhola. The deceased P. Lokanath while coming out after finishing tea from the said tea-stall, within a flickering of an eye the Appellants and their associates started running from the house of one Brundaban Sahu being armed with lathis, iron rods and brickbats. All of them surrounded the deceased and abused him in unsavoury language and further threatened to kill him. They indiscriminately assaulted the deceased on the village street as a result of which he fell down on the ground unconscious with serious bleeding injuries. While P. Lokanath was lying injured on the village street P.W.1 rushed to the police station after the F.I.R. was scribed in the village and lodged a report at Hinjilikatu police station. They indiscriminately assaulted the deceased on the village street as a result of which he fell down on the ground unconscious with serious bleeding injuries. While P. Lokanath was lying injured on the village street P.W.1 rushed to the police station after the F.I.R. was scribed in the village and lodged a report at Hinjilikatu police station. A case under Sections 147/148, 341/294/307/149, I.P.C. was registered under the O.I.C. of Hinjilikatu police station immediately sent an A.S.I, to the village by a police jeep. The A.S.I, arranged to shift the injured P. Lokanath to Berhampur M.K.C.G. Medical College Hospital, but while on the way it is alleged that deceased P. Lokanath regained sense and revealed the names of some of the accused persons by stating that they were responsible for causing such injuries on his person. The deceased was thereafter declared dead in the M.K.C.G. Medical College Hospital immediately after he was taken for Admission. After the injured P. Lokanath succumbed to the injuries the case was turned into an incident of murder punishable u/s 302. I.P.C. and further investigation was taken up. During investigation the I.O. examined all the witnesses, held inquest over the dead-body, sent the dead-body for post mortem examination, prepared the spot map and after completion of investigation submitted the charge-sheet in Court. 3. The defence plea is one of denial of the incident. They further pleaded that out of political rivalry P.W.1 and his other associates had foisted a false case against them. Appellant D. Narayan gave a detail statement u/s 313. Code of Criminal Procedure by saying that the village was faction ridden and one faction were supporters of Congress and the other were the supporters of Janata Dal. The learned 2nd Addl. Sessions Judge had, however, after brief resume of the evidence convicted the Appellants as mentioned above. The Appellant, therefore, being aggrieved by the judgment of conviction and sentence have preferred this appeal. 4. Mr. Das, learned Advocate appearing for the Appellants has strongly contended that the prosecution case had in fact not occurred in the manner stated before the Court below. From his submission it has further appeared that due to political bitterness between the Appellants one hand and the deceased P. Lokanath along with P.Ws.1 to 4 on the other, there have been sufficient developments, manipulations, concoction and exaggeration of the prosecution case from time to time. From his submission it has further appeared that due to political bitterness between the Appellants one hand and the deceased P. Lokanath along with P.Ws.1 to 4 on the other, there have been sufficient developments, manipulations, concoction and exaggeration of the prosecution case from time to time. There are full of improbabilities, absurdities and also concoction in the evidence of prosecution witnesses. From the evidence on record it has been strongly contended that there has been complete deviation from the F.I.R. story and the story presented in Court. In this background, learned 2nd Addl. Sessions Judge should have been wary and circumspect while scanning the evidence of prosecution witnesses. 5. Mr. Mohanty, learned Addl. Government Advocate while supporting the judgment of the learned 2nd Addl. Sessions Judge had repealed the contention of Mr. Das by stating that in a party faction village it is unexpected of the prosecution to procure any independent witness in order to prove its case. The evidence of P.Ws.1 to 3 are so natural, believable, spontaneous and trustworthy that there was no reason to search for any independent witness to corroborate their testimony. It is quite natural that there might be minor discrepancy between the story described in the F.I.R. and the evidence of prosecution witnesses Rather, such discrepancy is quite natural which would inspire belief in their version. Therefore, the learned trial Court keeping such fact situation in mind relied on the intrinsic testimonial values of P.Ws.1 to 3 and convicted the Appellants as stated above. 6. After hearing the submission and counter submissions advanced by both the parties, we carefully examined the evidence on record. In the F.I.R. it has been stated that the prosecution party were the supporters of Janata Dal and under the leadership of the deceased one D.RSja Rao succeeded in the preceding Sarpanch election. It is further described that deceased P. Lokanath was his first supporter whereas the Appellant D. Narayan. who was contesting for Sarpanch post and being defeated, entertained bitterness and animosity against the deceased and was searching for an opportune moment to settle their previous score. It is further described that deceased P. Lokanath was his first supporter whereas the Appellant D. Narayan. who was contesting for Sarpanch post and being defeated, entertained bitterness and animosity against the deceased and was searching for an opportune moment to settle their previous score. On the date of occurrence when P.W. 1 the de facto complainant M. Ram Murty while coming out after taking tea from the tea-stall of Shayamsundar Sahu towards Adua street heard a hue and cry and all on a sudden when he looked back he noticed P. Lokanath was surrounded by the Appellants and 10 Ors. (since acquitted) coming from the house of Brundaban Sahu being armed with different weapons. All the assailants indiscriminately assaulted deceased P. Lokanath as a result of which he fell down unconscious on the ground after receiving several injuries on his chest and throughout the body. The report was received at the police station around 7:00 A.M. on 14.11.92. It may be stated here that in the F.I.R. now where it is described that the Appellant D. Narayan had either abetted the other Appellants to assault or encouraged them to do away with the life of deceased P. Lokanath. Keeping this in mind, let us now advert to the evidence of the prosecution witnesses. 7. P.W.I in his had attributed overt acts against Appellants N. Satyabadi. G. Ranjan. G. Niranjan, D. Benudhar, who were said to have armed with iron rods and Appellants G. Damodar and B. Purusottam were armed with lathis and all of them had surrounded deceased P. Lokanath. In his evidence it has been further claimed by P.W.1 that the aforesaid Appellant D. Narayan came out from the house of Brundaban holding lathi and exhorted the other accused persons to assault the deceased P. Lokanath which is conspicuously absent in the F.I.R. P.W.1 further gave a picture that these Appellants had surrounded P. Lokanath and physically lifted him even after his strong resistance which was also not described in the F.I.R. The further development we find from the evidence of P.W.1 is that the accused persons carried deceased P. Lokanath near the cowshed of Gujuri Siba which is also substantially in variation from the FI.R. story. In the F.I.R. it is said that the incident had taken place on the village street in front of the house of Brundaban and also the tea-stall of Shayamsundar Sahu. In the F.I.R. it is said that the incident had taken place on the village street in front of the house of Brundaban and also the tea-stall of Shayamsundar Sahu. Thus from the F.I.R. story and also the evidence of P.W.1 we find that the place of occurrence and the acts attributed to the accused persons are quite discrepant. In cross-examination of P.W.1 we notice that there were other customers present who were taking tea at the time of occurrence. But no attempt has been made by the prosecution to examine any of the customers to corroborate the evidence of P.W.1 Neither Shayamsundar Sahu nor his servant who was admittedly present had been examined in Court. From his cross-examination we further notice that P.W.1 had claimed that the injured was not shifted from the spot till the arrival of the police. Therefore, from his version we find that the injured was lying in front of the cowshed of Gujuri Siba whereas referring to the evidence of P.W.5. who was a constable and admittedly reached the spot around 7.30 A.M. it appears that he claimed to have found deceased P. Lokanath lying in serious injured conaition in front of the house of Brundaban. If we consider the evidence of P.Ws.1 and 5 just a position, then, with regard to the place of occurrence, we shall either nave to come to the conclusion that P.W.1 must be lying or that the statement of P.W.5 does not characterise true picture. 8. The incident had taken place in busy area although at morning 6.00 A.M. but from the evidence it has been gathered that apart from P.W.1 and the Appellants there were other independent witnesses present at the spot. No reasonable or believable ground has been ascribed by the prosecution as to why Ors. have been left out to be examined in Court. In the F.I.R. 29 names have been described as the assailants of the deceased out of whom 19 accused persons were acquitted of the charges. P.W.1 was involved in two criminal cases, such as in G.R. Case No. 346/90 and G.R. Case No. 287/91 and was released on bail. Therefore, in this backdrop it is difficult to accept the version of P.W. 1 without his evidence being corroborated from other independent source. 9. Mr. P.W.1 was involved in two criminal cases, such as in G.R. Case No. 346/90 and G.R. Case No. 287/91 and was released on bail. Therefore, in this backdrop it is difficult to accept the version of P.W. 1 without his evidence being corroborated from other independent source. 9. Mr. Das, learned Advocate appearing for the Appellants has relied upon a judgment reported in Bir Singh and Others Vs. State of Uttar Pradesh, and submitted that where the eye witnesses examined by the prosecution were inimically disposed against the accused persons and interested in implicating the accused and no independent witnesses were examined to corroborate their testimony and further, no reasonable explanation was forthcoming, the Court should draw an adverse inference against the prosecution. In the aforesaid Bir Singh's case it has been held: It is true that it was not incumbent on the prosecution to examine each and every witness so as to multiply witnessed and burden the record. This rule however does not apply where the evidence of the eye-witnesses suffers from various infirmities and could be relied upon only if properly corroborated. XX XX XX In view of these special circumstances, it was incumbent on the prosecution to examine the two witnesses at least to corroborate the evidence and if they were not examined the Sessions Judge was justified in drawing an adverse inference against the prosecution. In fact Shayamsundar Sahu. the tea-stall owner, was examined during investigation by the police, but were are at a loss to understand as to why the prosecution withheld to examine Shayamsundar Sahu during trial. Mr. Mohanty, (earned Addl. Govt. Advocate tried to make out a case that since Shayamsundar Sahu had seen a part of the prosecution story, by examining him the prosecution could not have gained much. Such submission cuts no ice as it appeared that no suggestion was made to P.W.1 during cross-examination. It is quite natural that when the incident had taken place almost in front of the tea-stall where some outsiders were present, from the narration we notice that it has not been precisely stated by the prosecution about the exact place of occurrence and it was shifted to different places from time to time. 10. Mr. Mohanty. learned Addl. Govt. Advocate while repelling such contention has relied on the decision reported in AIR 1978 S.C. 164 7 Mulhu Naicker and Ors. 10. Mr. Mohanty. learned Addl. Govt. Advocate while repelling such contention has relied on the decision reported in AIR 1978 S.C. 164 7 Mulhu Naicker and Ors. v. State of Tamil Nadu and submitted that the evidence of partisan witnesses must not be discarded on that ground alone. The Court must be on guard to scrutinise the evidence of partisan witnesses with more than ordinary case. It must focus its attention on whether there are discrepancies in the evidence; whether the evidence strikes the Court as genuine and whether the story as narrated is probable. 11. While examining the evidence of P.W.1 keeping in view the principle laid down in the aforesaid judgment placed by Mr. Mohanty, we find that there were several inconsistencies and exaggeration in his evidence not only about the place of occurrence but also shook the confidence and credibility of their testimony. In this background, rule of prudence demands that there should be corroboration from independent source. When there were other independent witnesses available at the spot and no explanation having been offered by the prosecution, why the prosecution failed to place them in Court, in this background, we are constrained to draw adverse inference against the prosecution. 12. Utmost reliance has been placed by the State counsel that when a murder takes places in a village where there are two faction bitterly opposite to each other, it would be idle to expect the independent persons to come forward to give evidence. But in this case from the evidence we find that large number of independent witnesses were available, they were withheld by the prosecution without any adequate reasons. Therefore, reliance placed in the aforesaid judgment is not helpful to the Respondent. 13. An attempt has been made to get the version of P.W.1 corroborated with the evidence of P.W.2. It appears from the testimony of P.W.2 that deceased P. Lokanath and himself after taking tea were proceeding to their respective houses. All on a sudden the Appellants and Ors. surrounded deceased P. Lokanath followed by an altercation. At that time the Appellant D. Narayan came out from the house of Brundaban and exhorted his other associates to do away with the life of deceased P. Lokanath. All on a sudden the Appellants and Ors. surrounded deceased P. Lokanath followed by an altercation. At that time the Appellant D. Narayan came out from the house of Brundaban and exhorted his other associates to do away with the life of deceased P. Lokanath. It has already been discussed how the acts attributed against accused D. Narayan has been developed subsequently in course of trial which was absent in the F.I.R. From the eye-witnesses' account of P.W.2 it is understood that deceased P. Lokanath was physically lifted to the cow-shed of Gujuri Siba which is not the version of P.W.1. P.W.1 has said that the incident had taken place on the village street in front of the house of Brundaban whereas P.W.2 presented different story that deceased P. Lokanath was physically lifted from in front of the house of Brundaban to near the cow-shed of Gujuri Siba. Therefore in this background the version of P.W.2 appears to be full of embellishment, and exaggeration in course of evidence, P.W.2 was inimically disposed to the accused persons. From his evidence it has appeared that the houses of Kaibalya Behera, Nasu Behera. Khali Behera, Sridhar Behera were situated in front of the tea-stall of Shayamsundar Sahu. But none of them has been examined to support the case of prosecution. 14. Mr. Mohanty, learned Addi. Government Advocate has placed reliance on a decision reported in Budhwa alias Ramcharan and Others Vs. State of Madhya Pradesh. It is true that when an incident occurred in a mob where large number of accused persons had allegedly assaulted the deceased it would be extremely difficult for the witnesses to minutely observe as to which of the accused assaulted on which portion of the body of the deceased. In a faction ridden village it is unrealistic to discard the evidence on the ground of interestedness. But necessary caution has to be observed in accepting the evidence of the witnesses. It is an accepted position that in a case of group rivalry and enmities there is a general tendency to rope in as many persons as possible as having participated in the assault. It is, therefore, a duty cast on the Court to closely scrutinise the evidence to ward off the doubts regarding participation of the accused persons. It is an accepted position that in a case of group rivalry and enmities there is a general tendency to rope in as many persons as possible as having participated in the assault. It is, therefore, a duty cast on the Court to closely scrutinise the evidence to ward off the doubts regarding participation of the accused persons. In this case there has been so many consistencies, exaggeration and embellishment between the F.I.R. story and the statement of the witnesses in Court. They are inextricably inseparable. In this regard we rely upon a recent judgment of the Supreme Court reported in AIR 2001 SCW 3953 Kalyan and Ors. v. State of U.P. in which it has been held: Keeping in view the facts and circumstances of the case particularly the variance between the FIR and the depositions made in the Court, and mention of gun shot injuries in the panchanama and their absence in the FIR, the conflict between the statements of eye-witnesses and the medical evidence and major contradictions and improvements in the depositions of the eye-witnesses, we are of the view that the prosecution failed to prove their case against the Appellants beyond all shadows of doubt. The Appellants are therefore, held entitled to the benefit of reasonable doubt. To form an opinion giving the Appellants accused the benefit of doubt we have kept in mind the defence as projected and suggested by them to the witnesses during their cross-examination. 15. Mr. Das, learned Advocate appearing for the Appellants has relied upon a judgment reported in Dharam Singh and others Vs. State of Punjab, wherein it has been held: The version in the FIR in which such details, as mentioned above, were given, must have been a result of consultations among the interested persons after coming to know the nature of injuries. That apart, there are many improbabilities in the said version. Contradictions and omissions in depositions are the same. Narrations and sequence events are meticulously in the same order. Therefore it is not safe to place reliance on the evidence of witnesses. 16. Learned trial Court has relied on Anr. circumstance regarding the dying declaration alleged to have been made by deceased P. Lokanath while enroute to M.K. C.G. Medical College Hospital. To prove the alleged dying declaration the evidence of P.Ws.4 and 5 is Important. Therefore it is not safe to place reliance on the evidence of witnesses. 16. Learned trial Court has relied on Anr. circumstance regarding the dying declaration alleged to have been made by deceased P. Lokanath while enroute to M.K. C.G. Medical College Hospital. To prove the alleged dying declaration the evidence of P.Ws.4 and 5 is Important. It is significant to note that in the F.I.R. it is stated that the deceased was unconscious at the time when P.W.5 visited the spot P.Ws.1 and 2 also in the same breadth-have stated that the deceased P. Lokanath was unconscious. No attempt was made by any of the prosecution witnesses who were present there to take the injured immediately for his treatment to prove the dying declaration. Rather, they waited till the arrival of the police. It is unnatural to accept that a person receiving such injuries was not taken to the hospital for treatment and allowed to sink down gradually till arrival of the police. When he was unconscious how could be again regain sense on his way to the Hospital has not been fully explained. In this regard the evidence of the doctor who conducted post mortem examination is relevant. Form the cross-examination it appears that at the time of post mortem examination only 10 cc. of liquid was inside the stomach. It is elicited from his cross-examination that an injured will loose sense within two hours alter the assault. Form the eye witnesses account it has established that immediately after the assault the lost his sense Also by the time P.W.5 reached the sport the injured F. tokanatt must have lost his senses In that view of the matter, the story as relegated of P.Ws.4 and 5 appears to be unrealistic, unnatural and unbelievable Deceased P. lokanatn had received about 14 injuries. It is true that even in some cases only on the basis of the dying declaration a conviction can be made, but in the instant case no reliance can be placed on such dying declaration. In this regard reliance may be placed on a decision reported in 2007 AIR SCW 2481 Smt. Laxmi v. Om Prakash and Ors. It is true that even in some cases only on the basis of the dying declaration a conviction can be made, but in the instant case no reliance can be placed on such dying declaration. In this regard reliance may be placed on a decision reported in 2007 AIR SCW 2481 Smt. Laxmi v. Om Prakash and Ors. wherein it has been held: A dying declaration not being a deposition in Court, neither made on oath nor in the presence of the accused and therefore not tested by cross-examination is yet admissible in evidence as an exception to the general rule against the admissibility of hearsay! The admissibility is founded on the principle of necessity. The weak points of a dying declaration serve to put the Court on its guard while testing its reliability and impose on the Court an obligation to closely scrutinise all the relevant attendant circumstances. Thus the evidence of P.Ws.4 and 5 being unnatural, therefore, it is unsafe to place reliance on their testimony. Consequently the dying declaration alleged to have been stated by the deceased cannot be accepted. In the eye witnesses account of P.W.I it is noticed that he has named only six Appellants and left the other 23 accused persons, although he was maker of the F.I.R. It is not understood why did he ascribe different acts in the F.I.R. against all accused, but had left out many of them in evidence. The medical evidence certified that the deceased died of injuries and death was homicidal in nature. While bringing the deceased to M.K.C.G. Medical College Hospital there were other dispensaries on the way. There has been no evidence to show that deceased P. Lokanath was ever taken to any other dispensary at least or provide first aid treatment. By the time he was produced in M.K.C.G. Medical College Hospital he was already dead as stated by P.W.6. In the spot map proved by the prosecution it is shown that the place of occurrence was in front of tea-stall of Brundaban but it was shifted to a distance of about 120 feet in front of the cowshed of Gujun Siba. 17. All the witnesses, namely, P.Ws.1 to 3 have stated in apart like manner by uttering the names of the Appellants leaving other 19 accused persons, who had allegedly assaulted the deceased. 17. All the witnesses, namely, P.Ws.1 to 3 have stated in apart like manner by uttering the names of the Appellants leaving other 19 accused persons, who had allegedly assaulted the deceased. The evidence produced by the prosecution was interested, untrustworthy, incredible on the basis of which it is difficult to cull out the nuggets of truth. In this background we are unable to place reliance on the evidence of witnesses, P.Ws.1 to 3. 18. Therefore, in the above situation we are not able to agree with the observation of the learned 2nd Addl. Sessions Judge in convicting the Appellant under Sections 302/149, 341/149 and 148, I.P.C. 19. In the result, the appeal is allowed, the conviction and sentences passed against the Appellants are hereby set aside. The bail bonds furnished by them are hereby cancelled. P.K. Misra, J. 20. I agree.