JUDGMENT P. K. TRIPATHY, J. — The judgment of conviction and sentence for the offence under Section 304, Part-I, I.P.C. read with Section 34, I.P.C. recorded by the Addl. Sessions Judge, Jajpur in Sessions Trial No. 259/52 of 1987 and sentencing each of the appellants to undergo R.I. for five years for the offence under Section 304, Part-I, I.P.C. is under challenge. 2. Deceased Narahari and the appellants 2 and 3 besides the acquitted accused Nabakishore are the sons of appellant No. 1 Bansidhar Das, Narahari having gone on adoption has lost his status as a son in the family of Bansidhar to claim right over the property in the family of Bansidhar. But the fact remains that all of them were remaining within the same campus, the residential accommodation being intervened by a court-yard. 3. Bansidhar had a transaction relating to exchange of his land with another and in the deed of alienation (relating to such exchange) Bansidhar got his son’s name recorded as transferee and in that he did not mention the name of the deceased (Narahari). According to the prosecution, Narahari came and protested before Bansidhar for eliminating his name in the document. That protest led to an altercation and then a confrontation and ultimately to a fight, in which life of Narahari became doomed at the hands of his brothers and father. According to the prosecution, appellant Nos. 2 and 3 and the acquitted accused dealt Lathi blows when appellant No.1 caught-hold of the deceased. The son of the de¬ceased lodged the information to police to set the law into mo¬tion. Defence version in that respect is slightly different. Accused persons stated that in course of that protest Narahari became aggressive and violent and to retaliate to the challenge thrown by Bansidhar he along with his son Ajoy (P.W.1) entered into his house and returned with weapons and that Narahari was holding a sword and Ajoy an ‘Ekmuma’ (a pointed weapon). Accord¬ing to them, in the process of that scuffle to protect themselves and to snatch away the weapon from the deceased and his son Ajoy, that is to say in the right of private defence, some blows fell on the accused persons for which they sustained injuries and some blows fell on the deceased, as a result of which he suc¬cumbed in the hospital. Accused persons in their defence also stated that a counter case was registered against Ajoy (P.W.1), Sahadev Nayak (P.W.2) and Dhurba Nayak (P.W.4). It is stated at the Bar that judgment in that counter case was also delivered on the same day of the delivery of the impugned judgment of this appellant and an order of acquittal was pronounced in that coun¬ter case. 4. To substantiate the charge, prosecution relied on the evidence of the eye-witnesses, viz. Mataji, the widow of the deceased (P.W.9), Premalata, the daughter of the deceased (P.W.10), Dukhishyam Dalai and Narendra Nayak, two co-villagers (P.W.3 and 8 respectively). As noted above, Ajoy, the son of the deceased was the informant, but in the F.I.R. he has not been portrayed as an eye-witness to the occurrence. The doctor who gave the first treatment was Dr. Manmath Nath Biswal (P.W.13) and the doctor who conducted the post mortem examination is Dr. Anil Kumar Sarangi (P.W.6). Laxmidhar Dalai is the seizure witness relating to seizure of sword and Ekmuna, vide Ext.7 and the Investigating Officer is the P.W.12. As noted in the impugned judgment M.Os. 1 and 2, two bamboo sticks are said to be the weapons of offence for causing death of the deceased. 5. In support of their defence plea, accused persons exam¬ined one witness. i.e., D.W.1, Gayadhar Parida and also relied on the requisition and injury certificate marked Exts. A to G. 6. On assessment of evidence on record the trial Court found evidence of P.Ws. 3,8,9 and 10 as the eye-witness to the occurrence and evidence of P.W. 1 as a post-occurrence witness to be consistent and corroborating to prove the allegation of assault and murder by the appellants. The trial Court looking to the post mortem report found the death to be homicidal as well as fatal and keeping in view the evidence of P.Ws.9 and 10 in particular and the relevant evidence of P.Ws.3 and 8 in general in that respect found that the deceased was the aggressor but the appellants had no reason to exercise the right of private defence though they had no intention to murder him. Taking that view in the matter, the trial Court acquitted the accused persons from the charge under Section 302/34, I.P.C., but convicted them for the offence under Section 304, Part-I read with Section 34, I.P.C. 7. Taking that view in the matter, the trial Court acquitted the accused persons from the charge under Section 302/34, I.P.C., but convicted them for the offence under Section 304, Part-I read with Section 34, I.P.C. 7. In course of the long-run-argument advanced by both the parties, while the effort of the appellants is to make out a case of self-defence and to wriggle out from the conviction, the appreciating effort of learned Addl. Govt. Advocate is to place the evidence on record in support of his contention that if not a conviction under the first part of Section 304, I.P.C., at least there are enough material to record the conviction for the offence under Second part of Section 304, I.P.C. However, for the reasons indi¬cated in the subsequent paragraphs, he remained helpless to ex¬plain the lacunae of the prosecution on certain material aspects. 8. Deviating from the pedantic manner of following the two of the reasoning assigned by the trial Court, that being not necessary, this Court considers the contention relating to the right of private defence after considering the merit of the prosecution case, if that would be necessary. 9. The occurrence is not in dispute by either of the parties. Injury on the accused as well as on the deceased are not in dispute. There is also no dispute to the fact that a sword and an Ekmuna were seized at the spot under seizure list Ext.7 and the prosecution has not explained under what circumstance that was seized. Prosecution has also not explained by bringing necessary evidence on record as to how those two weapons came to the spot. A the same time it appears from the evidence of P.Ws.9 and 10, who, in their cross-examination have simply denied to the suggestion that it is the deceased and his son Ajoy came upon the spot with such weapons. Similarly, P.W.3 also could not say who brought those weapons though he found such weapons were lying at the spot of occurrence. On the other hand the other eye-witness, i.e. P.W.8 stated that he did not see any Sword or Ekmuna at the spot and he also denied to the suggestion regarding use of such weapon by the deceased and his son. 10. Argument of Mr. Mishra, learned Addl. Govt. On the other hand the other eye-witness, i.e. P.W.8 stated that he did not see any Sword or Ekmuna at the spot and he also denied to the suggestion regarding use of such weapon by the deceased and his son. 10. Argument of Mr. Mishra, learned Addl. Govt. Advocate that the above quantity of evidence brought on record by the defence is not sufficient to prove the deceased as the aggressor and the appellants as the defender of their right of person so as to get benefit of private defence as provided in the Chapter-IV of Indian Penal Code to cause death of a person in self-de¬fence is incomplete inasmuch as the Investigating Officer seized the sword and Ekuma from the spot of occurrence but the prosecu¬tion failed to explain the reason for seizure of such weapons and to give correct and clear evidence in that respect. Learned Addl. Govt. Advocate fairly concedes that evidence led by the prosecu¬tion is next to nothing except explaining in the seizure list about the circumstance under which it was seized. Relevant evi¬dence from the mouth of the witness who witnessed seizure of those weapons was not brought on record. The mother of the de¬ceased, who is the wife of appellant No.1 having been cited as eye-witness to the occurrence but not examined in course of trial when evidence on record remains that ambiguous relating to pre¬sence of those two weapons at the spot, prosecution should not have discarded or declined her evidence in the case. She should have been examined to ascertain the truth. Simply because she is the wife of the appellant, prosecution should not have lost sight of the fact that she is also the mother of the deceased and should have been tempted to tell the truth. Endeavour should be made by the prosecution unlike the Investigating Agency to put forth before the Court all relevant evidence and all available evidence so that truth can be correctly ascertained and a conclu¬sion is accordingly recorded in a criminal trial. 11. In the context of the conduct of the prosecution it is seen on record that injury certificate of Narahari notwithstand¬ing examination by the doctor (P.W.13) was not brought as evidence and because of that the injury certificate of deceased Narahari had to be marked as Ext.A/A at the instance of the defence. 11. In the context of the conduct of the prosecution it is seen on record that injury certificate of Narahari notwithstand¬ing examination by the doctor (P.W.13) was not brought as evidence and because of that the injury certificate of deceased Narahari had to be marked as Ext.A/A at the instance of the defence. The above fact scenario thus goes to show that notwithstanding non-availability of right of use of private defence by independent witness from the side of defence yet their suggestion to the prosecution witnesses strongly probabilises the theory of ag¬gression with dangerous weapon by the deceased and his son. 12. When the Court is put with such a situation, the other relevant circumstance is to be seen. As noted above, there is no dispute between the parties relating to homicidal death of the deceased. According to P.W.13, when the deceased as an injured was brought for treatment at the fist instance he found only one injury, i.e. one incised looking lacerated wound of the dimension of 15 cm. x 0.5 cm. - 2.5. cm. x sculp deep situation on the right side close to hair-line and 5 cm. from mid-line. The injury was found by him to be grievous, it be possible by blunt weapon and the doctor opined that “the wound was stitched (scalp) imme¬diately pnt.was referred to S.C.B. Medical College, Hospital.” In his evidence P.W.13 has stated that besides the above injury though he noted presence of another injury on the chest, but he did not take note of other injuries on the body because of the serious condition of the patient. On the other hand it appears from the post mortem report, Ext. 4 and the evidence of P.W.6, the doctor, who conducted autopsy that there were many injuries on the head and they have been described in the post mortem report in the following manner : “External injuries : (1) Stitched wound 6 cms. long situated over the vertex towards right parital region, 4 cm. lateral mid¬line and 10 cms. above the root of the injury. The wound is situ¬ated antro-posteriority and obliquely. On opening the stitches the wound is bone deep with margins finely irregular. (2) Stitched wound 6 cm. long on the right frontal region, 2 cm. lateral to midline and 10 cm. above right eye brow. The wound is situated antro posteral and slightly oblique. above the root of the injury. The wound is situ¬ated antro-posteriority and obliquely. On opening the stitches the wound is bone deep with margins finely irregular. (2) Stitched wound 6 cm. long on the right frontal region, 2 cm. lateral to midline and 10 cm. above right eye brow. The wound is situated antro posteral and slightly oblique. On opening the stitches the wound is bone deep and margins are irregular. Both injuries 1 and 2 have merged together at the vertext where the scalp tissue is crushed. (3) Incised looking lacerated wound 4 cms. x ½ cm. x scalp deep on the back of the head situated trans¬versely 5 cm. above accept ocepet margins are finely irregular and confused with sharp acute angle. (4) inverted shaped lacerated wound anterior limb 5 cm. x ½ cm. x scalp deep and posterior limb 1.5 cm. x ½ cm. x scalp deep situated on the right temporo-pari¬tal region of the head 7 cm. above the root of ear. (5) Lacerated wound 4 cms. x 1 cm. x scalp deep situates on the right parital region of the head 1.5 cms. behind injury No. 4. (6) contusion 2 cms. x 1cm. situated on the right parital behind and adjacent to injury No. 5. (7) Stitched wound 3 cms. long situated on the right frontal region of the head 6 cm. above the right eye brow (middle). On opening the stitches the margins are irregular and bone deep. (8) Right side temple swellen 8 cm. x 8 cm. and looks bluish colour. (9) Prallel bruise 20 cms. x 1 cm. with 1 cm. apart situated above and downwards and obliquely on the lateral aspect of right thigh. (10) Contusion 5 cms. x 2 cms. situated horizontally on the back of mid thigh of right side. (11) Abrasion 5 cm. x 5 cm. on the left unleev region 5 cm. above iliac crest. (12) Abrasion 5 cm. x 2.5 cms. on the lateral aspect of left side chest 5 cm. above costal arch. (13) Abrasion 5 cms. x 5 cms. on the left side back close to midline on the medial border of ink angle of scapula”. 13. x 5 cm. on the left unleev region 5 cm. above iliac crest. (12) Abrasion 5 cm. x 2.5 cms. on the lateral aspect of left side chest 5 cm. above costal arch. (13) Abrasion 5 cms. x 5 cms. on the left side back close to midline on the medial border of ink angle of scapula”. 13. It appears from the above described injuries that all the above injuries and particularly the injuries on the head which were noticed by the P.W.6 if could have been noted by P.W.13 then he would not have omitted to mention the same if not in detail but at least in substance or gist. Even without going with this supposition if the Court refers to the evidence of P.Ws.6 and 13, then the aforesaid difference in the opinion makes the evidence more ambiguous and doubtful. Since the dates of examination of P.Ws.6 and 13 were different, therefore, perhaps the trial Court did not take note of the aforesaid ambiguity in their evidence relating to the number of injuries. As noted above, learned prosecutor did not wish to get the injury certifi¬cate of the deceased marked as Exhibit. That indicates that he was conscious of the position that there is a marked difference about the number of injuries so far as Ext.4 and Ext.A are con¬cerned and notwithstanding that the Public Prosecutor did not take any step to get the evidence clarified or to reconcile between the evidence of P.Ws.6 and 13. Under such circumstance this Court finds the prosecution is guilty of suppressing some material evidence and placing contradictory and ambiguous evi¬dence. If the evidence of P.W.13 is not found to be untruthful by the prosecution, there is no reason for this Court to reject that evidence only because of the evidence of P.W.6 or the post mortem report. Ext. 4. Therefore, if the evidence of P.W.13 is to be seen, then it indicates about only one external injury on the head. On the other hand P.W.6 found as many as five injuries on all sides of the head which includes the frontal ocepical and parital regions, both lateral to the mid line or lateral to the other side. Ext. 4. Therefore, if the evidence of P.W.13 is to be seen, then it indicates about only one external injury on the head. On the other hand P.W.6 found as many as five injuries on all sides of the head which includes the frontal ocepical and parital regions, both lateral to the mid line or lateral to the other side. Such injuries were not found by P.W.13 at the time of giving treatment or making reference to the medical college hospital, but such injuries were already there by the time P.W.6 conducted the post mortem examination. According to P.W.6 death of the deceased was due to the combined effect of all those in¬juries and once that is so and the prosecution has not explained at what time and at which place the other injuries were sustained and when gravity of the injury No. 1 is not specifically recorded by P.W.13, it cannot be said that the deceased died due to that injury alone. Under such circumstance the prosecution suffers for not coming to the Court with clean hands and not leading proper evidence in support of the charge. Because of that circumstance alone the accused persons are entitled to the benefit of doubt and are liable to acquitted. 14. On a combined consideration of strong probability of a mutual fight in which the deceased was the aggressor, not leading of clean and clear evidence by prosecution on the above noted material aspect and the glaring contradiction in the evidence of P.Ws.6 and 13, it is but proper that accused persons should have been granted the benefit of doubt. Trial Court while analysing the evidence failed to comprehend and appreciate the aforesaid lacunae and demerits of the prosecution and therefore the im¬pugned order of conviction is not sustainable. Hence, the order of conviction is set aside and all the accused/appellants are ac¬quitted by granting them the benefit of doubt. In the result, the Criminal Appeal is allowed. Appellants be immediately set free and discharged from the bail bonds executed by any of them. Crl. Appeal allowed.