JUDGMENT : Pradip Mohanty, J. - This appeal is directed against the Judgment and Order Dated 08.03.1989 passed by the Addl. Sessions Judge, Bolangir in S.C. No. 52/12 of 1983-1988. By the impugned Judgment, Appellant Gayadhar Shoi has been convicted u/s 323 Indian Penal Code and sentenced to pay a fine of Rs. 250, in default to undergo S.I. for one month; Appellants Radheshyam Bhoi, Duryodhan Sahu, Ganesh Bhoi and Sundar Sahu have been convicted u/s 307 read with Section 149 Indian Penal Code and sentenced to undergo R.I. for six years; and Appellant Suka Charan Sahu has been convicted under Sections 307/323/148 Indian Penal Code and sentenced to undergo R.I. for six years for the offence u/s 307 Indian Penal Code and R.I. for one year for the offence u/s 148 Indian Penal Code and to pay a fine of Rs. 250/- in default S.I. for one month for the offence u/s 323 Indian Penal Code, the sentences to run concurrently. During pendency of the appeal, Appellant No. 1-Gayadhar Bhoi and Appellant No. 4-Sundar Sahu having died, the appeal has been abated against them. 2. The case of the prosecution was that on 03.06.1983 at about 10 P.M. while an Opera show was being performed on the eve of the 21 st day ceremony of the grandson of Appellant No. 6, there was failure of electricity. The present Appellants along with others thought that one Dharanidhar Shoi (P.W.3), the mechanic of the Rice Huller, caused the said electricity failure. So, they proceeded to the Mill armed with lathis and assaulted PW.3, who belonged to the family of P.W.2 (Mill owner), as a result of which he sustained injuries. The Appellants also broke open the lock of a room of the Mill and a box, and threw away articles of the room including the wall clock. The watchman (P.W.5) rushed to the house of P.W2 to inform the incident. After receiving information, P. Ws. 1, 2, 6, one Dingar Rana and Ors. of the village came in a body towards the Mill through the street where the Opera show was being performed. When the prosecution party numbering 10 to 20 reached the place of the Opera show, all the Appellants including others attacked them. Appellant Nos. After receiving information, P. Ws. 1, 2, 6, one Dingar Rana and Ors. of the village came in a body towards the Mill through the street where the Opera show was being performed. When the prosecution party numbering 10 to 20 reached the place of the Opera show, all the Appellants including others attacked them. Appellant Nos. 2 to 6 and accused Murali and Shankar dealt blows with the help of various weapons like axe, c lathis and knives on the person of P.W2. Besides, all other accused persons also dealt lathi blows on him. As a result, he sustained severe bleeding injuries and lost his sense. Thereafter, the accused persons dealt lathi blows on the body of P. Ws. 1 and 6. P.W2 was immediately removed to the Tusura Govt. Hospital. On the oral report of P.W1, a case was registered in Tusara Police Station. Investigation followed, on completion of which charge-sheet was submitted against the accused persons. The Appellants 3. The case of the defence was that the prosecution party assaulted the accused party. As a result, they were injured. They lodged information at the police station whereupon the I.O. registered a case and submitted charge-sheet against some of the prosecution members which was tried and disposed of as counter to this case in S.C. No. 6/13 of 1987-1988. It was the further case of the defence that the informant party also assaulted one Dhanmati Bhoi in her house and pelted stones at the house of Krupasindhu Bhoi for which two complaint cases in I.C.C. 69 of 1983 and 70 of 1983 respectively were started by them. It was also the case of the defence that the informant party were being chased by the audience of the Opera show due to the disturbance caused by them by assaulting the aforesaid persons and they might have sustained injuries by fall or by assault by the audience. They specifically denied the allegation levelled against them. 4. In order to prove its case, prosecution examined as many as eleven witnesses. Defence examined two witnesses including an independent witness (D.W2) in support of its plea. 5. The Learned Addl. Sessions Judge, Bolangir, who tried the case, on perusal of the evidence and materials available on record by his judgment dated 08.03.1989 convicted and sentenced the Appellants as stated hereinbefore. 6. Defence examined two witnesses including an independent witness (D.W2) in support of its plea. 5. The Learned Addl. Sessions Judge, Bolangir, who tried the case, on perusal of the evidence and materials available on record by his judgment dated 08.03.1989 convicted and sentenced the Appellants as stated hereinbefore. 6. There is no dispute about the place and time of occurrence by the prosecution and defence. Mr. Sahoo, Learned Counsel for the Appellants assailed the judgment on the following grounds: (i) The Learned Addl. Sessions Judge, Bolangir convicted the present Appellants without appreciating the prosecution evidence in proper perspective. The genesis of the prosecution case has been suppressed by the prosecution. (ii) Non-examination of independent witnesses available on the spot and examination of only interested witnesses are adverse to the prosecution. All the witnesses examined by the prosecution are interested witnesses are related to each other. (iii) Non-explanation of injury sustained by the accused persons is fatal to the prosecution. (iv) Delay in examination of witnesses is also fatal to the prosecution. (v) The injury reports Exts. 5 and 6 have been extracted from bed head tickets. But the prosecution has not produced such bed head tickets and X-ray plate. In absence of the primary evidence, the secondary evidence like Exts. 5 and 6 are not admissible in view of the bar u/s 65 of the Indian Evidence Act. In support of his contention, he relies upon the decisions in Bir Singh and Others Vs. State of Uttar Pradesh, ; Ganesh Bhavan Patel and Another Vs. State of Maharashtra, ; Lakshmi Singh and Others Vs. State of Bihar Sarat Chandra Naik and Others Vs. State of Orissa, Krushna Podha v. State of Orissa, 1992 5 OCR 529 and Nityananda Nayak v. State of Orissa, 1997 12 OCR 7. 7. Mr. Das, Learned Additional Government Advocate vehemently contends that there is no infirmity and illegality in the Judgment and order passed by the Learned Additional Sessions Judge, Bolangir. There is no reason to disbelieve the evidence of P. Ws. 1, 2, 3, 4, 5, 6 and 7, more particularly, the evidence of P. Ws. 2, 3 and 6 which is very clear and cogent. The evidence of prosecution witnesses reveals that Appellant Suka shouted to kill P.W.2 and thereafter subsequent assaults were immediately given to him by different persons on vital parts of his body. 1, 2, 3, 4, 5, 6 and 7, more particularly, the evidence of P. Ws. 2, 3 and 6 which is very clear and cogent. The evidence of prosecution witnesses reveals that Appellant Suka shouted to kill P.W.2 and thereafter subsequent assaults were immediately given to him by different persons on vital parts of his body. Therefore, it cannot be said that the injuries were not Inflicted on P.W.2 without any knowledge or intention to cause death. He further contends that the F.I.R. also discloses the intention of Appellant Suka Sahu to kill P.W.2 and thereafter assaults continued on him by different accused persons. The witnesses stated about the role played by each of the accused person and there is no development made by the prosecution. He relies upon the decisions in Magata Panda and Another Vs. State of Orissa, . 8. Perused the L.C.R. and decisions cited by the parties. The genesis of the prosecution case is that due to failure of electricity supply to the Opera show, the accused persons became enraged and went to the first place of occurrence where PW.3 was assaulted. P.W.2 admitted in his evidence that there was electric supply to the place of occurrence and also to the rice huller. He also stated that on the date of occurrence there was failure of electricity in his village. But Basu Bhoi (P.W.5) reported about the occurrence that there was electricity. P.W.3 also stated that at no point of time prior to the occurrence, anybody alleged against him for causing failure of electricity. The evidence of P. Ws. 4, 5,6 and 7 did not speak anything about the failure of electricity. The I.O. (P.W.11) stated that P.W.1 had not stated about the existence of electric light at the place of occurrence. He also stated that P.W.3 had not stated that there was failure of electricity in the village on the date of occurrence. The conflicting version of the witnesses regarding disruption of power supply to the Opera show and the absence of any evidence that Opera show was being performed taking electricity connection from the Mill is unbelievable. The entire prosecution case is based on the fact that due to power failure at the Opera show, all the accused persons went to the Mill apprehending that the mill mechanic has caused the disruption of electricity. The entire prosecution case is based on the fact that due to power failure at the Opera show, all the accused persons went to the Mill apprehending that the mill mechanic has caused the disruption of electricity. P.W.3 stated that all the accused persons threw away the articles from the Mill. He rushed to P.W.2, who sent P.W.5, the watchman. P.W.2 came during assault took place. The evidence of prosecution witnesses reveals that there was failure of electricity for two to three minutes. There is specific evidence of P.W. 1 that there was a separate electricity supply to the Mill. Therefore, there could be no disruption of supply of electricity to the Opera show from the Mill. So, the genesis of the prosecution case is doubtful. Accused Sadhu Charan Sahu, Smt. Dhanamati Bhoi, wife of accused Dasarathi Bhoi, Smt. Belamati Bhoi, wife of accused Basudev Bhoi have sustained injuries and their injury reports have been proved by the defence through the evidence of P.W.8, the doctor vide Exts. A, B and C. In the instant case, prosecution has developed the case from stage to stage. That part was confronted to the 1.0. Accused Sadhu sustained lacerated injury on the right parietal area which has been proved under Ext. E. Witnesses did not, explain the injury in the entire evidence. But PW.8 also proved injury report of the family members of the accused persons who sustained injury in course of the same transaction. The I.O. (P.W.11) also admitted the above fact. 9. In view of the above, this Court allows the appeal and sets aside, the impugned Judgment and order of conviction. Final Result : Allowed