JUDGMENT B. PANIGRAHI, J. — The order dated 15.06.1992 passed by the learned Sessions Judge, Puri In S.T. Case No. 284 of 1992 con¬victing the appellants under Section 302/34 of the Indian Penal Code, in short, ‘IPC’ and sentencing them to undergo imprisonment for life has been assailed in this appeal. 2. The prosecution case which has been narrated in brevity in the trial Court’s judgment is as follows : On 26.9.1990 on the Mahaastami day in the month of Aswina (Dasahara), the deceased Laxmidhar Pradhan alias Lakhia along with his companions, namely, Baidyanath Nanda (P.W.6), Bhikari Behera (P.W.8) and Braja Pradhan went out for a feast. On the way near Mangalahat Mahabir Chhak, Suria alias Surendra Sahu (P.W.4) also joint them. Braja took the food articles ahead of other companions to Bada Pokhari Jaga, the place where they arranged the feast. P.Ws. 6, 8 and the deceased Lakhia remained back at Mahabir Chhak to purchase some spices, betel and bidi (tobacco). It has been described further that from Mahabir Chhak, the de¬ceased Lakhia along with P.Ws.6 and 8 went to Bhoi Sahi to con¬sume liquor as Bhoi sahi people used to deal in sale of illicit liquor. Appellant No.1, Rabi Bhoi is the agnatic nephew of Uchhab Bhoi whereas appellant No.2 Ramesh is his son.P.Ws.4, 6 and the deceased picked up a quarrel on account of non-supply of liquor at late night on the date of incident with Uchhab Bhoi. Following such brawl, some one is said to have set fire to the roof of Uchhab Bhoi, as a result of which his house was gutted with fire. The appellants who were present there and involved in the altercation, chased Lakhia and his companions, who in order to save their lives, tried to run away hither and tihther. At that time, the appellant No. 2, Ramesh Bhoi had a sword in his hand. In the process of running, the deceased lagged behind and was over-powered by the appellants since Rabi prevented him from proceeding further. Thereafter appellant Ramesh dealt three blows on the deceased-two on the backside left shoulder and one on the left knee, by the sword. After receiving the injuries, the de¬ceased scuffed up to a distance of about 30-40 feet but could not proceed further and fell down in front of the house of one Purna Behera. Few moments thereafter, he succumbed to the injuries. 3. After receiving the injuries, the de¬ceased scuffed up to a distance of about 30-40 feet but could not proceed further and fell down in front of the house of one Purna Behera. Few moments thereafter, he succumbed to the injuries. 3. P.W,9, Rabindra Kumar Mohapatra, Junior S.I. of Police attached to Town P.S., Puri who was deputed on duty to Bhoi Sahi to apprehend the appellants in connection with some other case, while returning from Bhoi Sahi, noticed a trail of blood and on following it, found the dead body of Lakhia Parida lying in front of the house of one Purna Behera, from whom he got the informa¬tion that the appellants had assaulted Lakhia Parida, as a result of which he received severe cut injuries and subsequently ex¬pired. He drew up the FIR on the information of said Purna Behera which was treated as FIR in this case. On receipt of the FIR, P.W.11 the O.I.C., Town P.S., Puri immediately swung into action. He went to the spot, held inquest over the dead body, dispatched the same for post mortem examination, examined witnesses, seized the blood stained earth and sample earth from the spot and after completion of investigation filed chargesheet under Section 302/34, IPC against the appellants. The appellants are said to have surrendered in the Court and were taken to judicial custody. 4. Twelve witnesses have been examined by the prosecution out of whom the evidence of P.Ws. 4,6,7,8 10 and 12 is signifi¬cant. P.Ws.4,6,7,8 and 10 are said to be eye-witnesses to the occurrence, who had presented minute details of the incident before the learned Sessions Judge. The learned Sessions Judge after considering the evidence of the witnesses was inclined to convict both the appellants under Section 302/34 IPC. Therefore, they have filed this appeal questioning the propriety of the order of conviction and sentence. 5. Mr. Panda, learned counsel appearing for the appel¬lants, has submitted that there are full of inconsistencies, exag¬gerations and contradictions in the evidence of the so-called eye-witnesses. He has further submitted that the case of the prosecu¬tion was developed from stage to stage beginning from the filing of the FIR till the evidence was over. The learned Sessions Judge over-looked the inconsistencies and discrepancies on material particulars in the ocular evidence. He has further submitted that the case of the prosecu¬tion was developed from stage to stage beginning from the filing of the FIR till the evidence was over. The learned Sessions Judge over-looked the inconsistencies and discrepancies on material particulars in the ocular evidence. It has been further submitted that there has been absolutely no legal evidence to connect the appellant Rabi Bhoi in this case. The evidence adduced against the other appellant Ramesh is also so shakey and unnatural that it is hazardous to accept the evidence of the so-called eye-witnesses. 6. Mr. Mohanty while supporting the trial Court judgment has, particularly,emphasized on the evidence of P.Ws.7, 10 and 12. It has been submitted that P.Ws.7 and 10 are quite natural, independent and reliable witnesses. Therefore, their testimony is not to be lightly brushed aside. Since the incident had taken place in the late night, it was not possible to produce any independent witness except P.W.7 who was all along awake ex¬pecting her husband to come home after attending the feast. 7. It is significant to note that Purna Behera who had given first information to P.W.9 was left out by the prosecution for being examined in Court. There has been no explanation of¬fered by it for his non-examination. Mr. Mohanty also could not satisfy us from the materials on record as to why the prosecution failed to examine Purna Behera, who undisputedly narrated the story to P.W.9 on the basis of which, the case originated against the appellants. Even assuming Purna Behera was not examined, if the prosecution would prove the case on the basis of other evi¬dence, then such non-examination could not be fatal to the prose¬cution case. It has been strongly contended that as other inde¬pendent witnesses, namely, P.Ws.7 and 10 were present at the spot and witnessed the occurrence from the terrace of their house, non-examination of Purna Behera cannot be a ground for acquittal of the appellants. 8. There has been no dispute that Lakhia alias Laxmidhar Parida met a homicidal death after receiving the injuries as has been narrated by P.W.2. According to the evidence of P.W.2, Lakhia had received three injuries, which are stated hereinbelow : (i) An incised wound-spindle shape situated over the lateral aspect of left shoulder ½" apart to the middle of the left shoulder joint, having a smooth and clean cut margin with the gaping in the middle. According to the evidence of P.W.2, Lakhia had received three injuries, which are stated hereinbelow : (i) An incised wound-spindle shape situated over the lateral aspect of left shoulder ½" apart to the middle of the left shoulder joint, having a smooth and clean cut margin with the gaping in the middle. The size of the injury was 1" x 3/4" x ¼". The injury was situated in longitudinally. (ii) An incised wound spindle shapped situated on the mid part of the left shoulder placed longitudinally of the size of 1" x 3/4" x 1/2". (iii) An incised wound with a wide gaping middle placed transversely over the poplital region of the left knee (i.e, the area behind the left knee joint). The size of the injury was 4" x 2 3/4" x 11/2". The cutting place (i.e, the gapping) was filled with a cloted blood. After cleaning the clotted blood it was found that the injury was upto the bone deep and the vessels and veins were cut which has been described in detail in the post mortem report.’ 9. From the evidence of P.W.2, it has further transpired that those injuries in normal course of nature would cause the death. He has opined that Injury No. ii is fatal if it remains unattended. There was no time left for affording treatment to the injured Lakhia as a consequence of which he met homicidal death in ordinary course of nature. 10. Mr. Panda, appearing for the appellants has strongly contended that in this case the prosecution has significantly failed to prove that there was any intention of the appellants to cause death of Lakhia. There cannot be any direct evidence by the prosecution by which intention could be proved. It all depends upon the surrounding circumstances and an inference is to be drawn from the particular situation about the intention of the assailants. In that view of the matter, when the injury was on the left side shoulder and left side knee and there was severe cut of vessels, we hold that there was intention to cause death provided the prosecution proved its case against the appellants. 11. In that view of the matter, when the injury was on the left side shoulder and left side knee and there was severe cut of vessels, we hold that there was intention to cause death provided the prosecution proved its case against the appellants. 11. From the evidence of P.W.4, Surendra Sahu, we however could not gather any impression that he in any manner, has con¬nected the appellants with the commission of the crime save and except that he proceeded along with the deceased Lakhia and P.Ws.6 and 8 in the night of occurrence. While they were moving forward, they heard shouts from Bali Kuda of Bhoi Sahu. He has further stated that Lakhia went inside the Bhoi Sahi. He has further stated that Lakhia went inside the Bhoi Sahi to subside the quarrel. On reaching Bali Kuda he found 3-4 persons from Puri were quarrelling regarding sale of liquor. It was suggested by the defence that in the night of occurrence, the deceased Lakhia along with P.Ws.4, 6 and 8 had gone to Bhoi Sahi to consume liquor. As Bhoi Sahi people could not supply liquor there was quarrel followed by setting of fire to the house of Uchhab Bhoi. Of course, such suggestion was denied by P.W.4 Since he did not implicate the appellants in any manner, his evidence does not help the prosecution in order to bring home the charges against the appellants. To the same effect is the evidence of P.W.5, which also does not help the prosecution. P.W.6 who was one of the companions of the deceased Lakhia, deposed in Court that he alongwith the deceased and others got down from the rickshaw at Mahabir Chhak. Since there was a quarrel due to sale of illic¬it liquor they went to Bhoi Sahi to dissuade the Bhoi Sahi people from selling illicit liquor. But the Bhoi Sahi people got en¬raged and appellant Ramesh chased them holding a sword along with the other appellant Rabi. While they were attempting to flee away from the spot, Lakhia lagged behind. He (P.W.6) concealed himself inside Mahabir temple from which he could see the accused Ramesh giving blows to the shoulder and backside of the left knee of Lakhia. On the following morning, P.W.6 informed P.W.1, the brother of the deceased. While they were attempting to flee away from the spot, Lakhia lagged behind. He (P.W.6) concealed himself inside Mahabir temple from which he could see the accused Ramesh giving blows to the shoulder and backside of the left knee of Lakhia. On the following morning, P.W.6 informed P.W.1, the brother of the deceased. While considering the credibility of the statement of P.W.6, it is significant to notice his statement made in the cross-examination. In cross-examination, he has denied the suggestion that he had not stated before police to have seen the incident by concealing his presence inside Mahabir temple or that appellant Ramesh dealt blows by means of a sword and on the shoulder or on the left leg of Lakhia. However, refer¬ring to his statement recorded under Section 161, Cr.P.C., we find that he has not disclosed these facts before the police at the first instance. In the aforesaid context, we have no other opinion but to hold that this witness has subsequently developed his version in course of trial, though he had failed to give such picture at the earliest point of time during investigation. Now, turning to the evidence of P.W.8, we noticed that he did not specifically state that Ramesh dealt any blow to the deceased Lakhia. What we gather from his evidence is that the appellant Ramesh was holding a sword whom they dissuade from selling liq¬uor. His evidence is therefore, not worthwhile to hold that the prosecution was able to connect the appellants with the crime. Then considering the evidence of P.Ws.7 and 10, who are mother and son, we find that P.W.7 has stated that in the night of incident on Mahaastami day of the year 1990 in the month of Aswina at about 1.00 A.M. in the night she noticed the appellant Rabi prevented a person from running away and the appellant Ramesh dealt blows by means of a sword to the leg and back of the shoulder, as a result of which he sustained bleeding injuries. After receiving injuries, the person scuffed to a distance of about 20-30 feet and thereafter he sank down due to severe in¬juries on his person. Seeing the occurrence, she became per¬turbed, so she did not move outside to see what happened to the injured. She observed the incident through the light emerged from street lights. After receiving injuries, the person scuffed to a distance of about 20-30 feet and thereafter he sank down due to severe in¬juries on his person. Seeing the occurrence, she became per¬turbed, so she did not move outside to see what happened to the injured. She observed the incident through the light emerged from street lights. While determining the truthfulness or otherwise of the testimony of P.W.7, we however, feel to refer to the state¬ment made in cross-examination. In the examination-in-chief, she has no doubt made a statement that she was awake for the arrival of her husband but significantly in her cross-examination, she has stated to have gone for sleep after taking her supper and woke up between 1.00 A.M. and 2.00 A.M. When police came and woke her up, whereafter she opened the door. In order to determine the acceptability of her evidence, we feel to quote her statement which has been recorded in her examination-in chief. “xxxx In that night my husband who had gone to attend a feast had not returned by the time of aforesaid occurrence. I was awake because I was waiting for him.xxxx” In cross-examination, she made the following statement : “xxxxx After taking any supper I was sleeping in my house and at about 1 to 2 a.m. when police came I woke up and opened the door.xxx” 12. If we consider both the statements justaposition we however, entertain serious doubt with regard to observing the incident. From the statement, no positive finding can be arrived as to whether she was awake or asleep at the time of incident because her statement is she woke up after the police came. 13. Now, turning to the evidence of P.W.10 who is the son of P.W.7, we found that he and his mother were asleep at about 1.30 A.M. and he woke up with his mother and found the street people moving forward along with the police and Lakhia was lying in a pool of blood. Therefore, the question of P.W.10 seeing the incident by standing on the terrace in the night of occurrence remains doubtful. The evidence has to be read as a whole, not in isolation. The evidence in the examination-chief and cross-examination are to be considered as a whole. Therefore, the question of P.W.10 seeing the incident by standing on the terrace in the night of occurrence remains doubtful. The evidence has to be read as a whole, not in isolation. The evidence in the examination-chief and cross-examination are to be considered as a whole. From the statement, we however, gather an impression that P.W.10 only woke up along with his mother after the police went to their house, P.W.12 is the husband of P.W.7, Turning to his evidence, we noticed that he came around 2.00 A.M. in the night after attending the feast. At about 2.30 A.M. police S.I, R. K. Mohapatra P.W.9 of town Police Station, Puri came to their house. From the evidence of P.W.7, as discussed above, it appears that she got up only after police came to their house i.e. around 2.30 A.M. Therefore, the possibility of seeing the incident by P.Ws. 7 and 10 is not above suspicion. Another significant feature which cannot be lost sight of is that P.Ws.7 and 10 did not claim to have informed P.W.12 about the incident, if, in fact they saw the same, immediately after he came to the house around 2.00 A.M. in the night. It is against human conduct for a person not to inform about an incident to the husband who reached home within hours of the occurrence. From the evidence, we gather that lot of people from Bhoi Sahi along with the appel¬lants chased the deceased Lakhia in the night of occurrence. If we exclude the possibility of seeing the incident by P.Ws.7 and 10 and disbelieve the evidence of P.Ws.4, 6 and 8, there has been no legal evidence to connect the appellants with the crime. As already discussed, P.Ws. 4, 6 and 8 are not only partisan, but also had made substantial development of their statement in course of their evidence. Therefore, their testimony does not withstand the test of reliability. 14. Considering the case of the prosecution from every angle, we do not find that the prosecution was able to prove the charges beyond any reasonable doubt. Apart from that there has been no legal evidence particularly against the appellant Rabi. 15. In the result, the appeal succeeds. Therefore, their testimony does not withstand the test of reliability. 14. Considering the case of the prosecution from every angle, we do not find that the prosecution was able to prove the charges beyond any reasonable doubt. Apart from that there has been no legal evidence particularly against the appellant Rabi. 15. In the result, the appeal succeeds. The order of convic¬tion and sentence of the appellants under Section 302/34, IPC passed by the trial Court is hereby set aside and the bail bond, if any, furnished by them is discharged. CH. P. K. MISRA, J. I agree. Appeal succeeds.