JUDGMENT : P.K. Tripathy, J. - Both the appeals are against the common judgment of conviction delivered by the Additional Sessions Judge, Bhadrak on 12.5.1995 in Sessions Trial No. 210/31 of 1993 arising out of G.R. Case No. 214 of 1993 of the Court of S.D.J.M., Bhadrak. Argument is heard analogously and this common judgment abides the result in both the above noted Criminal Appeals. 2. Altogether nine accused persons faced the trial in the above noted Sessions case. Out of them, the five Appellants in Criminal Appeal No. 152 of 1995 and the sole Appellant in Criminal Appeal No. 217 of 1996 were found guilty of various offences which is noted later. Accused persons, viz., Mahendra Sethi, Katia @ Bishnu Sethi and Fusi @ Budhiram Sethi respectively described as accused Nos. 5, 6 and 7 in the impugned judgment were found not guilty of any of the offences and accordingly they were acquitted: 3. Accused Bunu @ Rabinarayan Sethi who was convicted for the offence u/s 302, I.P.C. on the allegation of causing murder of deceased Basanta is dead since 18.8.1998 as reported at the Bar. Therefore, we have recorded abatement of the appeal against as per the order passed in the order-sheet. 4. According to the case of the prosecution, accused Rabinarayan Sethi had friendship with deceased Bijay Mohapatra. In view of that relationship, he, was in visiting terms to the house of the said Bijay Mohapatra. Kalpana is his sister being the daughter of Kedarnath Mohapatra, the informant. Accused Rabinarayan and Kalpana developed liking for each other and on the basis of that accused Rabinarayan aspired to marry Kalpana and in that process interfered with the negotiations undertaken by her father to settle her marriage with another. Ultimately the marriage negotiation was settled with her present husband. To avoid unpleasantness the informant with the bride and bridegroom proceeded to the temple on 24.2.1993 to perform the marriage in the temple. Accused Rabinarayan obstructed the vehicle, but the conflict was avoided. After the marriage, Kalpana was left in her father-in-laws house in village Langudi. On 25.2.1993 in the morning hour accused Rabinarayan with accused Biswanath and few others went to the matrimonial home of Kalpana and threatened her husband of dire consequences. Thus, Kalpana immediately intimated that fact to her parents and brothers by sending a letter narrating the incident. After the marriage, Kalpana was left in her father-in-laws house in village Langudi. On 25.2.1993 in the morning hour accused Rabinarayan with accused Biswanath and few others went to the matrimonial home of Kalpana and threatened her husband of dire consequences. Thus, Kalpana immediately intimated that fact to her parents and brothers by sending a letter narrating the incident. Informant's sons thereafter went to Kalpana's matrimonial home and took stock of the situation and thereafter at about evening time the informant party went to Biswanath Naik to caution him not to support accused Rabinarayan. Both the deceased Basanta and Bijaya besides Kishore (informant's brother) were in that party with the informant. At 'Ghanta Baragachha Chhaka' they confronted with accused Biswanath, as a result, said accused Biswanath went to his Sahi (Dhoba Sahi - Washerman street) and returned with the other accused persons including accused Rabinarayan. They were variously armed. Accused Rabinarayan was armed with a 'Bhujali', accused Susanta was armed with a knife, accused Chaitan and Chintamani were each armed with iron rods and rest of the accused persons were holding lathies. They attacked the informant party. In that process accused Rabinarayan dealt a Bhujali-blow to the belly of Basanta (one of the deceased persons) causing bleeding injury. Accused Susanta gave a stab-blow by the knife to the chest of Bijay (the other deceased), accused Govardhan dealt a Lathi-blow to the head of the informant, accused Chaitanya dealt blow to the head of the informant by the iron rod and the other accused persons assaulted and chased Kishore, the brother of the informant. Basanta and Bijay (both the deceased) succumbed to the injuries and thereafter the matter was reported in the Police Station as per the F.I.R. (Ext. 1) and the law was set into motion. On completion of a routine investigation, charge-sheet was submitted and accused persons were committed to the Court of Session. 5. On the basis of the aforesaid allegation, charge was framed for the offence u/s 302, I.P.C. against accused Rabinarayan and Susanta for causing the murder of Basanta and Bijay respectively. 1) and the law was set into motion. On completion of a routine investigation, charge-sheet was submitted and accused persons were committed to the Court of Session. 5. On the basis of the aforesaid allegation, charge was framed for the offence u/s 302, I.P.C. against accused Rabinarayan and Susanta for causing the murder of Basanta and Bijay respectively. Accused Govardhan, Chintamani and Chaitanya were separately charged for the offence u/s 307, I.P.C. for attempting to commit murder of the informant and his brother, and all the accused persons were jointly charged for the offence of not u/s 148, I.P.C. and 323/149, I.P.C. for intentionally causing voluntary hurt to Kishore, Pradeep, Bharati and the informant. Accused persons denied to the aforesaid charges and claimed for trial. 6. To substantiate the accusation, prosecution examined 14 witnesses and filled on documents marked Exts. 1 to 32 and M.Os. I to IV. Out of them, the informant, injured and eye-witness to the occurrence Kedarnath Mohapatra, his wife Malatilata Mohapatra, who came to the spot in course of the occurrence to save her husband and children, were respectively examined as P.Ws. 1 and 2. Kishore Chandra Mohapatra, brother of P.w. No. 1 is another eye-witness to the occurrence. P.W. No. 6, Ajay Kumar Mohapatra is the son of the informant and he was also examined as an eye-witness to the occurrence. Anirudha Naik, P.w. No. 4 and Pradeep Sahoo, P.w. No. 5 also claimed to be the eye-witness to the occurrence though they are not related to either, of the parties. P.W. No. 7 Krushna Chandra Naik has been examined as a witness who arrived at the spot shortly after the occurrence, P.w. No. 8 Nityananda Bosini is a witness to the seizure-list prepared in course of the investigation. As many as five Doctors were examined on behalf of the prosecution. Out of them, P.w. No. 9 Dr. Sahadev Sahu conducted post-mortem examination on the dead bodies of deceased persons Basanta and Bijaya and proved the post-mortom reports Exts. 10 and 11 respectively. P.w. No. 10, Dr. Sangita Bala examined P.w. No. 1 and granted injury certificate, Ext. 12. P.w. No. 11, Dr. K. Mishra examined P.w. No. 5 Pradeep Sahu and granted injury, certificate, Ext. 13. P.w. No. 12, Dr. S.N. Das examined X-Ray Report of one Bharati Nayak and submitted his report, Ext. 15. P.W. No. 14, Dr. Shree Ray, examined PW. Sangita Bala examined P.w. No. 1 and granted injury certificate, Ext. 12. P.w. No. 11, Dr. K. Mishra examined P.w. No. 5 Pradeep Sahu and granted injury, certificate, Ext. 13. P.w. No. 12, Dr. S.N. Das examined X-Ray Report of one Bharati Nayak and submitted his report, Ext. 15. P.W. No. 14, Dr. Shree Ray, examined PW. No. 3, Kishore Chandra Mohapatra and granted injury certificate Ext. 17. P.w. No. 13, Niranjan Kumar Dhir is the Investigating Officer. Only one of the material objects is the weapon of offence i.e., the knife, M.O.I. and rest of the M.Os. are Photographs of Kalpana, the deceased persons and accused Rabinarayan Sethi. 7. As against that on behalf of the defence, the S.D.O. Electrical Khan Nagar, viz., Sanatan Samal was examined as solitary defence witness and he proved Exts. B and A/1 relating to the plea of alibi of accused Chaitan Sethi. The defence also proved injury report of accused Rabinarayan Sethi and that was marked Ext. 8. On assessment of the evidence on record, learned Addl. Sessions Judge, Bhadrak, recorded the findings and order of conviction as follows: (i) accused Rabinarayan Sethi was found guilty of the offence u/s 302, I.P.C. for causing murder of deceased Basanta and was sentenced to undergo imprisonment for life; (ii) accused Susanta Sethi was found guilty for the offence u/s 302, I.P.C. for committing murder of deceased Bijaya and was sentenced to undergo imprisonment for life; (iii) accused Gobardhan Sethi, Chaitan and Chintamani were not found guilty of the offence u/s 307, I.P.C. and acquitted accordingly but they were found guilty of the offence u/s 323, I.P.C. for causing hurt to P.W. No., 1. Out of them, learned Additional Sessions Judge sentenced accused Gobardhan and Chaitan to undergo simple imprisonment for one year for the offence u/s 323, I.P.C. but omitted to impose a sentence against accused Chintamani (iv) accused Rabinarayan, Gobardhan, Susanta, Chaitan, Chintamani and Biswanath were found guilty of the offence of riot punishable u/s 148, I.P.C. and sentenced each of them to undergo R.I. for two years; He directed for concurrent running of the sentences. (v) He did not convict the aforesaid convicted accused persons for any other offences. (vi) He acquitted the rest of the accused persons from all the charges. 9. As noted earlier, the case against accused Rabinarayan has abated on his death. 10. (v) He did not convict the aforesaid convicted accused persons for any other offences. (vi) He acquitted the rest of the accused persons from all the charges. 9. As noted earlier, the case against accused Rabinarayan has abated on his death. 10. Argument of the Appellants in challenging to the impugned order of conviction is on the grounds that: (i) P.w. No. 2, the wife of the informant, P.w. No. 3, the brother of the informant and P.W. No. 6, another son of the informant could not have been witnesses to the occurrence and they were so included just to create evidence against accused persons; (ii) Evidence of P.W. Nos. 2, 3 and 6 is discrepant and not creditworthy. (iii) Evidence of P.Ws. 1, 2, 3, 5 and 6 as eye-witnesses to the occurrence is not reliable; (iv) Accused Chaitan has proved the plea of alibi but it was wrongly discarded by the Trial Court; (v) In the alternative, if the prosecution case is believed, then, the informant party being the aggressor and the occurrence having started in the evening time i.e., when darkness had already set in, it could not have been possible to identify as to who assaulted whom and, therefore, benefit arising out of the same should be extended in favour of the accused persons. On the aforesaid grounds, Appellants argue to grant them clean cut acquittal and, if not, at least the benefit of doubt. 11. Learned Standing Counsel opposing to the aforesaid argument of the Appellants argues that prosecution evidence is neither shaky nor contradictory and all the above noted witnesses are credible. The discrepancy which have been stated by the Appellants is not correct inasmuch as when the informant party was attacked by the accused persons each of the prosecution witnesses scattered and in that process they narrated about the part of the occurrence seen by each of them. So far as P.W. Nos. 2 and 6 are concerned, though initially they did not proceed to the spot with the informant but on hearing the noise they came to the spot by the time of occurrence. Injury on the body of accused Rabinarayan does not keep the accused persons on any advantage so as to claim either acquittal or benefit of doubt, but on the other hand that proves his participation in the occurrence. Injury on the body of accused Rabinarayan does not keep the accused persons on any advantage so as to claim either acquittal or benefit of doubt, but on the other hand that proves his participation in the occurrence. He also supports to the reason assigned in the impugned judgment but to reject the plea of alibi of accused Chaitan. Accordingly, learned Standing Counsel argues to dismiss both the appeals. 12. It may be pointed out here that homicidal death of both the deceased persons is not disputed at the Bar. Evidence of P.w. No. 9 in that respect is that deceased Basanta had sustained two stab injuries. One was situated 3" away from umbilicus resulting in a loop of large intenstine protruding and the second stab injury was situated 3" above iliac crest. Both the injuries are ante mortem in nature and the case of the death was due to stab injury on the abdomen. Ext. 10 is that post-mortem report. So far as deceased Bijay is concerned, he found a stab injury with a depth of 6" resulting in cutting of the left side of the longs and affecting the heart. P.w. No. 9 opined that death was due to such ante mortem injury. He proved the post mortem report, Ext. 11. He also certified that death was within 24 hours from the time of post mortem examination which he conducted on 26.2.1993. That corresponds broadly to the time of occurrence. From the above said evidence as we find a case of homicidal death of each of the deceased persons is proved and therefore, rightly, Appellants do not challenge to such evidence or the finding in that respect recorded by the Trial Court. 13. Coming to the occurrence part, on perusal of the evidence on record, we did not find any substance in the contention of the Appellant relating to contradiction leading to the distractibility of the eye witnesses to the occurrence. As rightly learned Standing Counsel points out, the eye witnesses saw the occurrence in a stage of panic and from different spot and therefore difference in narration of events by each of them cannot be regarded as contradiction. The informant (PW. As rightly learned Standing Counsel points out, the eye witnesses saw the occurrence in a stage of panic and from different spot and therefore difference in narration of events by each of them cannot be regarded as contradiction. The informant (PW. No. 1) being leading the party while proceeding to the spot to dissuade accused Biswanath not to encourage accused Rabinarayan for causing disturbance in Kalpana's matrimonial home he had the direct knowledge of all the events that took place,at the spot all through out. His brother, Kishore (P.W. No. 3) has narrated that part of the occurrence which he saw while running away to escape. Therefore, even if he was proceeding with P.w. No. 1 while going to the spot, he could not have seen all the occurrences of assault in the same manner as P.w. No. 1 could see. P.W. No. 2, the wife of the informant was not at all proceeding with P.w. No. 1 and the deceased persons when they proceeded to the spot of occurrence but after nearing the commotion, she came over to the spot and in that process she saw a part of the occurrence. Therefore her evidence does not appear to be unnatural or out of proportion. Like that evidence of each of the witnesses and their credibility has been explained by the Trial Court before accepting such evidence. We did not find any flaw in that process of assessment and acceptance of evidence by the Trial Court. 14. Learned Counsel for the Appellant argues that names of some of the witnesses are not indicated in the F.I.R. or even in the 161 statement of PW. No. 1 and therefore presence of such eye witnesses should be disbelieved. That argument is advanced particularly with respect to P.W. No. 2 and 6 but we do not find any strength or stamina in that contention so as to shake the finding of the Trial Court. The first information report is not the encyclopedia of the entire occurrence. It is only intimation to the Law enforcing agency about a crime having been committed. Author of the F.I.R. is to state the facich he saw and remembered. The first information report is not the encyclopedia of the entire occurrence. It is only intimation to the Law enforcing agency about a crime having been committed. Author of the F.I.R. is to state the facich he saw and remembered. In this case, P.w. No. 1 not only being as injured but victim suffering the loss of two precious life from his family i.e., his son and nephew could not have been in a cool mental condition to narrate with a photogenic memory about each individual person present on and around the spot at the time of occurrence. Therefore, in the F.I.R. omission of the names of some witnesses is non-consequential and therefore, that contention of the Appellant is devoid of merit. 15. On due consideration of the contention of the Appellants, finding recorded by the Trial Court and perusal of the evidence of the eye-witnesses, we do not find any material contradictions in such evidence to discard the evidence of any of the eye-witnesses. Similarly, omission of names of some witnesses is not fatal to the prosecution in this case. On the other hand, we find that the evidence on record proves complicity of each of the convicted accused persons for the offences for which they have been convicted and sentenced. At this stage, we feel it proper to consider the plea of alibi which accused Chaitan wanted to prove in course of defence evidence. The relevant portion of the evidence of D.W. No. 1 is extracted below: 2. Ordinarily, he attends office at the close of the office hour and performs duty at night and leave offices at 6 to 6.30 AM. Ordinarily the closing hour of the office is 5 P.M. 3. On 25.2.93, Chaitanya had attended our office as revealed from the Attendance Register of our office which is maintained in our office. He proved the Attendance Register Ext. A and the name of the accused Ext. A/1. The aforesaid evidence does not prove that D.W. No. 1 had seen accused Chaitan remaining at the office as the Night-watchman from 5 P.M. on 25.2.1993 till 6 A.M. on 26.2.1993. Merely because Chaitan's signature are available in the Attendance Register Ext. A that does not automatically proves that he was at the office and therefore, he could not have present at the spot of occurrence at about 6 p.m. of 25.2.1993. Merely because Chaitan's signature are available in the Attendance Register Ext. A that does not automatically proves that he was at the office and therefore, he could not have present at the spot of occurrence at about 6 p.m. of 25.2.1993. Keeping in view the aforesaid evidence, we find that the Trial Court rightly recorded the finding that accused Chaitan failed to prove the plea of alibi. 16. From the side of the defence, injury certificate of accused Rabinarayan was proved as Ext. B. That injury certificate was granted by the Doctor on 26.2.1993. Doctor noticed one abrasion of 1/2" x 1/2" and laceration 1/3" x 1/3" on the left side of the forehead. The swelling injury on the back and a lacerated injury on the left grateto. All the injuries found by him to be simple. Prosecution cannot be held guilty of suppression of that medical evidence because of the fact that such injuries were simple and minor. On the other hand, Ext. B otherwise indicates that accused Rabinarayan sustained that minor injures in the process when attacking the informant party. That does not necessarily mean that he was assaulted by the members of the informant party. When the accused persons out numbering the informant party were chasing and assaulting being armed with weapons, in that process occurrence of injury be it at the resistance of the deceased or otherwise is not unnatural or improbable. On the other hand, existence of such injury and tendering that defence evidence lends credibility to be the evidence of the eye-witness recording presence and participation of accused Rabinarayan in the crime. Therefore, that defence evidence in no manner grants any advantage to the defence. Be that as it may, benefit, if any, to be claimed out of the injury certificate was to be the accused Rabinarayan. As already noted the appeal has abated as against him because of the death in the year 1998. 17. It is readable from the evidence adduced by the prosecution that till the informant party arrived at the spot and made the confrontations with the accused persons, none of the accused persons, had the desire or the intention to commit any crime including that of murder. 17. It is readable from the evidence adduced by the prosecution that till the informant party arrived at the spot and made the confrontations with the accused persons, none of the accused persons, had the desire or the intention to commit any crime including that of murder. Therefore, taking that circumstance into consideration, besides the nature of the injury which result in death of deceased Bijaya, we feel it proper that accused Susanta Sethi should be convicted for the offence u/s 304, First Part, instead of the offence u/s 302 I.P.C. Accordingly, we modify that conviction order. Regard being had to the facts and circumstances, leading that unfortunate occurrence, we feel it proper to impose a sentence of rigorous imprisonment for seven years, and not ten years for the conviction of the said Appellant for the offence u/s 304 First Part I.P.C. 18. So far as the rest of the accused persons, as noted above, we have been convicted for the offence u/s 148 of 323 I.P.C. or both the offences, we feel it to substitute that substantive sentence by imposing a fine of Rs. 1,000/?(one thousand) for each of such offences, if paid, within two months from the date of receipt of a copy of this order by the Court below or else such appeals are to suffer the substantive sentence is imposed on them by the said offence by the Trial Court. In that context, we may indicate that, accused Chintamani is also sentenced to pay a fine of Rs. 1,000/- (one thousand) for his conviction u/s 323 I.P.C. which has noted in paragraph 8 of this judgment, was omitted to be imposed on him by the Trial Court. We, thus, dispose of the appeal without setting aside the order of conviction, but modifying the order of conviction and sentence in the manner indicated above and therefore both the appeals are disposed of accordingly.