JUDGMENT :- This Government Appeal has been filed against the judgment and order dated 30th November, 1992 passed by Sri P. K. Das, Assistant Sessions Judge, Bhanjanagar in S. C. No. 11 of 1992/S. C. No. 39 of 1992 G. D. C. acquitting the respondents of the offences punishable under Section 307/34, I. P. C. 2. The case of the prosecution in brief was that on 28-7-1991 at about 9.30 p.m. near Panda Sahi Chhak, Upendra Parida (P. W. No. 5) and Hadu Swain consumed liquor and, thereafter, accused persons and injured Upendra Parida and Hadu Swain had exchange of hot words. Hadu Swan then took Upedra Parida to his house where both of them took meals. When they were going in front of the house of the accused persons, the accused Guru Sahu came with a Juali and assaulted Upendra Parida (P. W. No. 5) on his head resulting which he sustained bleeding injury and fell down in the drain. Thereafter accused Rama Sahu came with a Katua and assaulted P. W. No. 5 with the same, which got his left hand fractured. Soon after the assault the injured raised hullah and Hadu took him to his house wherefrom he was removed to Balipadara Hospital and on the advice of the Medical Officer, Balipadara, the injured was removed to M. K. C. G. Medical College, Berhampur. On the report of Hadu Swain, marked as Ext. 1/1, the Police registered the case. 3. Prosecution examined 9 witnesses in all and the accused-respondents examined two witnesses. The learned Assistant Sessions Judge did not find the accused/respondents guilty under Section 307/34, I. P. C. and acquitted them holding that the evidence of P. W. 5 injured creates doubt regarding genuineness of the occurrence and has suppressed the truth which makes it difficult to come to a definite finding that the accused persons are the assailants. Since prosecution has got no chance in a criminal case and the Court must definitely come to a finding that the accused persons are the assailants and cannot depend on may or might and accordingly, the benefit of doubt goes in favour of the accused persons. 4. I have perused the Case Diary, the statement of the witnesses as well as other relevant records. 4. I have perused the Case Diary, the statement of the witnesses as well as other relevant records. The scribe of the F. I. R. was the companion of injured person Upendra Parida namely Hadu Swain who lodged F. I. R. at Gangpur Police Station and put his L. T. I. in the F. I. R. Two witnesses by the Police were shown as Harekrushna Kar and Purushottam Sahu. But Harekrushna Kar was not produced in the witness box. However, Purushottam Sahu was produced as P. W. No. 4 by the prosecution. The scribe of the F. I. R. Hadu Swain was not produced as his whereabouts were not known and his appearance was dispensed with. P. W. No. 1, Sanyasi Guru though deposed that he has seen the occurrence, but his evidence was disbelieved by the learned Assistant Sessions Judge giving reasons that in his evidence he has deviated from the earlier statement given to the Police in which he has stated that while he was returning after taking bath, he found the injured Upendra having bleeding injuries corning with Hadu Swain and thereafter the injured narrated the occurrence to this P. W. No. 1, Sanyasi Guru and, hence, the witness was not present at the time of occurrence as per his statement under Section 161, Cr. P. C. Further the name of Sanyasi Guru (P. W. 1) does not find place in the F. I. R. as eye witness. The evidence of the injured Upendra Parida, P. W. 5 was also disbelieved by the learned trial Court on the ground that he himself has admitted that he was drunk and had not exchange of abusive words with the accused-respondents. However, he was not clear as to whether Guru Sahu assaulted him either by stick or juali and whether Rama Chandra Sahu assaulted him with Katua or Tangia. The defence witnesses, D. Ws. 1 and 2 have given rebuttal evidence. 5. Both the respondents-accused in their statements recorded under Section 313, Cr. P. C. stated that P. W. No. 5 injured who was dead drunk fell down on the stone and sustained injuries. Therefore, defence also was made on this line. P. W. No. 4, Purushottam Sahu who was the witness to the seizure was declared hostile. 5. Both the respondents-accused in their statements recorded under Section 313, Cr. P. C. stated that P. W. No. 5 injured who was dead drunk fell down on the stone and sustained injuries. Therefore, defence also was made on this line. P. W. No. 4, Purushottam Sahu who was the witness to the seizure was declared hostile. The evidence of injured (P. W. 5) Upendra Parida is important in this case who narrated in his examination in chief as under : "I, know the accused persons in the dock. I know Hadu Swain. The occurrence took place about 11 months back in the month of Asadha, on a Sunday at about 9.30 p.m. On the date of occurrence, in the evening, I along with Hadu Swain was going to the liquor shop to consume liquor. Accordingly, we went and consumed liquor and at that time, the accused Gura Sahu went behind us. The accused Gura Sahu thereafter started abusing me and we exchanged hot words. Thereafter, I along with Hadu Swain returned back to the house of Hadu Swain and when we are going to take meals at about 9 p.m., at that time accused Gura Sahu again came in front of the house of Hadu Swain and again started abusing us. Thereafter, we exchanged hot words. Thereafter accused Gura Sahu left the place and I along with Hadu Swain started taking meals. The house of accused Guru Sahu and Hadu Swain are in Panda Sahi whereas my house is at Nua Sahi. After meals, Hadu Swain and myself came down to my house and Hadu Sahu told me to leave me up to my house. Hadu Swain is the elder brother of my son-in-law Purna. When we were going along with Hadu Swain, in front of the house of accused Gura Sahu, Gura Sahu came with a Juali and assaulted me by the same in my head. I sustained two injuries in my head and got bleeding injury. The assault took place in front of an electric pole where a light was burning. I fell down in the drain and thereafter the accused Rama Sahu came with a Katua and assaulted me by the same in my left hand on the forearm as a result of which I sustained fracture injury. My fracture was very grievous and two iron rods have been inserted to make it straight. I fell down in the drain and thereafter the accused Rama Sahu came with a Katua and assaulted me by the same in my left hand on the forearm as a result of which I sustained fracture injury. My fracture was very grievous and two iron rods have been inserted to make it straight. M. O. I (marked earlier) is the Juali by which Guru Sahu assaulted me. Soon after assault I raised hullah "Marigali Marigali". Thereafter, Hadu Swain took me to my house. Thereafter Udaya Bisoi and my sons namely Santosh, Surjya removed me to Balipadara hospital. I was treated by the Doctor at Balipadara hospital. The Doctor opined that I should be removed to Berhampur hospital since my injuries are serious in nature. Hadu Swain gave report to the Police in the P. S. In the night itself, I was removed to Berhampur hospital in a vehicle. I was treated as indoor patient in the M. K. C. G. Medical College for about one and half months. I was examined by the Police at Berhampur on Monday. Nakula Polai is the son-in-law of Guru Sahu." However, in his statement under Section 161, Cr. P. C. recorded on 29-7-1991, he has specifically stated before the I. O. that on the evening of 28-7-1991 he and Hadu Swain had been to the liquor shop to take liquor. Gura Sahu also followed them to the liquor shop to take liquor. After taking liquor Gura Sahu abused him and both of them had exchange of hot words. In the meantime, Hadu intervened and pacified whereafter he left the liquor shop. After taking liquor he had been to the residence of the brother of his son in law, i.e. residence of Hadu Swain. When they were about to take their meals, Gura Sahu came in front of the house of Hadu and scolded them. Then Hadu came out of the house and asked Gura as to why he was scolding. After exchange of hot words, they left for their respective houses. Thereafter he and Hadu took their meals. When they were about to take their meals, Gura Sahu came in front of the house of Hadu and scolded them. Then Hadu came out of the house and asked Gura as to why he was scolding. After exchange of hot words, they left for their respective houses. Thereafter he and Hadu took their meals. As by then he was under the influence of liquor, Hadu accompanied him to see off at his house at Nua Sahi and while they were passing in front of the house of Gura Sahu, Gura Sahu came behind and assaulted on his head by means of a sharp cutting weapon as a result of which he fell down. Thereafter, Rama Sahu, the son of Gura Sahu assaulted him with a Kathua stick. After receiving the assault, out of fear he shouted as Marigali Marigali. He suspected that Nakula Polai and Jogi Swain who are supporters of Gura had come to the spot. Hadu carried him to his house. His wife, children and Udia Bosoi shifted him to the hospital and on the advice of the doctor of Balipadar hospital, he was taken to Berhampur hospital. Gura Sahu and his son Rama Sahu intended to kill him but he was narrowly saved. 6. The injured was first examined by Dr. Dilip Kumar Nanda (P. W. 6) and thereafter by Dr. Basanta Kumar Panda (P. W. 7). P. W. 6 has stated that on 28-7-1991 he was Medical Officer, Government Hospital, Balipadara and he examined Upendra Parida, P. W. 5 at 10.00 p.m. on that day and found the following injuries on his person : "1. Lacerated injury 4" x ½" x ½" on the left side of the scalp 1" away from the mid line; 2. Lacerated injury 3" x ½" x ½" on the lateral side of the scalp. 3. Bruise 2" x 1" on the middle of the left arm." He has further stated that injury Nos. 1 and 2 were simple in nature and might have been caused by hard and blunt weapon, but opinion on injury No. 3 was reserved for want of X-Ray. He has further stated that P. W. No. 5 had taken alcohol, but was able to control himself. The age of the injuries was within two hours. He testified his injury report marked as Ext. 3. P. W. No. 7, Dr. He has further stated that P. W. No. 5 had taken alcohol, but was able to control himself. The age of the injuries was within two hours. He testified his injury report marked as Ext. 3. P. W. No. 7, Dr. Basanta Kumar Panda has stated in his evidence that on 29-7-1991 he was attached to M. K. C. G. Medical College and Hospital, Berhampur and on the requisition of A. S. I., Balipadara Out Post, he examined Upendra Parida and found the following injuries on his person : "1. Lacerated 3" x 2" bone deep, 4" above the left ear in the parietal region. 2. Lacerated 3" x 2" bone deep, behind the first one. Both the injuries are simple in nature and might have been caused by hard and blunt object. 3. Fracture shaft of radius, grievous in nature and might have been caused by hard and blunt object." According to his opinion, the time of examination is 6.40 a.m. and the age of the injuries was within 24 hours and injury No. 3 i.e. fracture shaft of radius, was grievous in nature and might have been caused by hard and blunt object. He has further opined that the injuries could cause death if the patient is not attended properly. However, in his cross examination, he has stated that injury is possible if the patient falls on a hard surface and rolls on. The injuries are possible by fall if someone is dead drunk. 7. It appears that Hadu Swain who lodged the FIR and was an eye witness to the entire occurrence has not been examined as a witness during trial. He was the best person to testify as to what happened during the occurrence. P. W. 1 Sanyasi Guru deposed to have seen the occurrence. During investigation he was examined by the police. In his statement under Section 161, Cr. P. C. he stated that the injured Upi Parida with bleeding injury came to him along with Hadu Swain and narrated the incident and requested him to shift him to the hospital immediately. There was no whisper in the FIR about this witness. Therefore, the learned Assistant Sessions Judge rightly disbelieved the version of this witness. The doctor has stated that the injured had taken alcohol. In the FIR it is also mentioned that the injured was under the influence of liquor. There was no whisper in the FIR about this witness. Therefore, the learned Assistant Sessions Judge rightly disbelieved the version of this witness. The doctor has stated that the injured had taken alcohol. In the FIR it is also mentioned that the injured was under the influence of liquor. The injured examined as P. W. 5 has stated that he had consumed liquor and there was exchange of hot words between the injured and the accused Gura. He has stated that while he and Hadu Swain were going, accused Gura Sahu came with a Juali and assaulted on his head. But in his statement before the police he has stated that Gura Sahu came from behind and assaulted on his head with a sharp weapon. In view of such contradiction and variations, the learned Assistant Sessions Judge did not rely on his evidence. I am of the opinion that the evidence adduced by the prosecution was shaky and not convincing and, the learned Assistant Sessions Judge was right in not relying on the same and extending the benefit of doubts to the respondents. I, therefore, do not find any good and cogent reason to interfere with the order of acquittal passed by the learned trial Court. Consequently, the appeal is devoid of merit and is dismissed. Appeal dismissed.