JUDGMENT : A.S. Naidu, J. - This appeal is directed against the judgment and order of conviction dated 6th February,1996 passed by learned Addl. Sessions Judge, Jajpur in S.T. No. 273/29 of 1994 convicting the Appellant for commission of offence u/s 302, IPC and sentencing him to undergo rigorous imprisonment for life. 2. The prosecution was set to motion on receipt of the F.I.R., Ext.3 lodged by P.W.1 in Bari out-post on 21st January,1994 allegirig that on the said date in the early morning, his brother-in-law Rajat Panda had gone to his ground-nut field situated nearby his house to kill rats, when accused-Gayadhar, to fulfill his earlier grudge, came there and assaulted Rajat Panda with a lathi thereby causing serious bleeding injuries. Hearing the hullah, the informant and Ors. rushed to the spot and on seeing them, the accused fled away. Rajat was thereafter shifted to Indupur Hospital for treatment and the matter was reported to the police station. On the basis of the F.I.R., Binjharpur P.S. Case No. 18 of 1994 was registered under Sections 341, 323, 325, IPC. Unfortunately in course of treatment, Rajat Panda succumbed to the injuries caused on him. Thereafter, the case was turned to one u/s 302, IPC. In course of investigation, inquest was made over the dead-body and the body was sent for post mortem examination. Several persons were examined, weapon of offence was seized and after completion of investigation, charge-sheet was submitted in the Court of learned S.D.J.M., Jajpur in G.R. Case No. 65 of 1994. Learned S.D.J.M., Jajpur after considering the police papers and on being satisfied, took cognizance of the offence and thereafter committed the case to the Court of Session for trial. 3. The accused took the plea of complete denial. It is further alleged that disputes were prevailing, between the parties with regard to some coconut trees. On the date of occurrence in the morning Rajat came with his mother and threw stones towards accused Gayadhar. Being injured, accused rushed near Rajat. When he came closer, Rajat assaulted him with a lathi in order to protect himself, the accused snatched away the lathi from Rajat and started brandishing it by whirling. According to the accused, in course of such action, the lathi might have hit the head of Rajat thereby causing the injuries. 4. To substantiate its case, the prosecution got examined 10 witnesses. According to the accused, in course of such action, the lathi might have hit the head of Rajat thereby causing the injuries. 4. To substantiate its case, the prosecution got examined 10 witnesses. On the other hand, the defence also got examined four witnesses in support of its plea. 5. Learned Addl. Sessions judge after vivid discussion of the evidence, both oral and documentary, and after consideration of the material objects came to the conclusion that the death of Rajat Panda was homicidal and the same was caused due to the injuries inflicted upon him by the accused. After discussing the defence evidence, learned Addl. Sessions Judge held that the plea taken by the defence was not established and presence of the accused at the time of occurrence cannot be doubted. The Sessions Court was convinced that the prosecution could establish the guilt of the accused beyond all reasonable doubt in bringing home the charge u/s 302, IPC and convicted the accused thereunder and imposed punishment of rigorous imprisonment for life. 6. Learned Counsel for the Appellant strenuously took this Court through the evidence of all the witnesses. P.W.1 is the informant. Perusal of his evidence reveals that he did not support the prosecution case and was declared hostile. In cross examination he stated that while he was chatting with one of his friends on the road, a lady came and requested him to show the location of the police station. Noticing her eagerness he accompanied her to the out-post. She presented a written report to the Officer in-charge of the out-post, who read it and tore it apart. Thereafter, he directed P.W.1 to write the F.I.R. as per his version, which he scribed in the police station. The said F.I.R. was marked as Ext.3. He identified his signature, Ext.3/1. Though he was cross-examined by the prosecution at length, nothing could be elucidated from him in support of the prosecution case. 7. P.W.2 is the doctor. On police requisition, he had examined the accused-Appellant on 21.1.1994. On such examination, he found a lacerated wound on parietal bone on right side of the head and abrasion on left thumb in the joint of first of terminal phalanx and abrasion on lateral malliusous on left ankle joint. He has not only granted a medical certificate, but had also deposed that the accused was under his treatment from 21.1.1994 till 27.1.1994. 8. He has not only granted a medical certificate, but had also deposed that the accused was under his treatment from 21.1.1994 till 27.1.1994. 8. P.W.3 is the doctor, who conducted post-mortem. He found 10 external injuries on the dead body. He has clearly stated that all the injuries were anti-mortem in nature and had been caused by applying hard and blunt force. The cause of death according to P.W.3 was due to cranto cerebral injuries. 9. P.W.4 is the wife of the deceased and was cited as an eye witness. In her deposition she stated that on the date of occurrence, her husband went to the land while she was grinding rice in the house of one Bengali family, which was adjoining to her house. Hearing the shouts of her husband, she and her nephew P.W.5 rushed towards the spot. They found accused Gayadhar Das, Shyamsundar Dhal, Bansidhar Das, Kailash Das, Akhaya Das, Pramod Das, Bata Dhal and Indramani Dhal armed with lathis were assaulting her husband Rajat. Hearing their shouts, P.W.8 and one Bimal Dhal came running. Seeing them, all the accused persons fled away. 10. The I.O., P.W.9, however, has clearly stated that P.W.4 did not state before him that Bainsidhar, Pramod, Shyam, Kailash, Bata, Indramani had assaulted Rajat along with the accused and that when Manmath Panda and Bimal went there, the accused fled away from the spot. The insertion of the aforesaid names appears to be an after-thought and exaggeration on the part of the prosecution with a motive to rope in the innocent person. 11. P.W.5 was Anr. eye witness. Unfortunately, however, it appears that he was not examined by the I.O. Thus, no credence can be given to his evidence. 12. P.W.6 is a post occurrence witness. According to him, hearing the hullah he rushed to the field, but then he did not state that he had seen accused Gayadhar there. 13. P.W.7 is Anr. co-villager and stated to be an occurrence witness. But then, he was also not examined by the I.O. P.W.8 is stated to be Anr. eye witness. Though in his deposition, he has named 8 persons to be the assailants of Rajat, it appears from the evidence of I.O. that before him he had only named the accused-Appellant to be the assailant. Thus, there is clear variation from the evidence of Ors. . eye witness. Though in his deposition, he has named 8 persons to be the assailants of Rajat, it appears from the evidence of I.O. that before him he had only named the accused-Appellant to be the assailant. Thus, there is clear variation from the evidence of Ors. . P.W.9, the I.O. in his statement has admitted that P.W.6 had stated before him that on the date of occurrence, P.W.8 was at Dhenkanal and one Lily Panda went to Dhenkanal to inform him about the incident. Therefore, it appears that the evidence adduced by the prosecution is neither consistent nor the same corroborated with each other. 14. P.W.2 in his deposition has stated that the accused had sustained lacerated injuries on his head and other injuries on his body and such injuries were caused in course of the incident. He was sent for medical examination on the basis of the requisition given by the police. P.W.2 has proved Ext.A, the discharge certificate. The prosecution has totally failed to explain the injuries sustained by the accused. 15. The discussion made above, thus, reveal that the prosecution has improved.the case from stage to stage. From the very inception, it appears that the F.I.R. which was lodged by P.W.1 was not his own. As stated earlier, he had no knowledge about the incident and was only assisting a lady to locate the police out-post. According to his evidence the lady handed over a report to the I.O., who after going through it, tore it off and asked P.W.1 to write down the F.I.R. as per his dictation. Thus, the story narrated in the F.I.R. cannot be said to be that of the informant. The analysis of the evidence made above also reveals that most of the vital statements made in the court were not disclosed before the I.O. and such statements were not recorded u/s 161, Code of Criminal Procedure Law is well settled that if a particular fact deposed by a witness in court does not find mentioned either in the F.I.R. or in the statement recorded u/s 161, Code of Criminal Procedure, the Court should presume that the same is an improvement and should not accept the same without corroboration. That apart though F.I.R. is not encyclopedia and must contain brief facts about the incident, but then omission of important facts in the F.I.R. would however be fatal to the prosecution case. That apart though F.I.R. is not encyclopedia and must contain brief facts about the incident, but then omission of important facts in the F.I.R. would however be fatal to the prosecution case. In the case in hand, material variations are found in the facts narrated in the F.I.R. and the facts deposed by the witnesses. That apart, this Court also finds that though independent witnesses were available, they were not examined and as such, a cloud of suspicion arises. 16. The most vital thing which was lost sight of the trial court is with regard o non-explanation of injuries sustained by the accused. For such non-explanation, the prosecution can be blamed of suppression of true fact. It is obligatory on the part of the prosecution to explain the injuries on the person of the accused. In the case of Babu Ram and Others Vs. State of Punjab wherein it has been clearly held that non-explanation of the injuries sustained by the accused by the prosecution leads to a conclusion that the eye witnesses were interested witnesses and have not disclosed all the facts and the court should be cautious about such non-explanation. In the case in hand, evidence of P.W.2 (doctor) reveals that the accused had, in fact, sustained several injuries on his person and such injuries were caused in course of occurrence. The defence had also examined three witnesses to substantiate its case with regard to prior enmity existing between the families of the accused and deceased. 17. But then, the prosecution was able to establish that the death was homicidal one. The injury sustained by the accused also reveals that he had taken part in the assault. The plea of the defence being that when the deceased attacked the accused-Appellant and pelted stones and also chased the accused holding a lathi, in order to protect himself, he snatched the lathi from the deceased and started whirling the same, and in the process, he hit the deceased Rajat Panda, thereby causing his death. This Court, therefore, feels that the accused had in fact exceeded his limit of private defence. If the deceased was only pelting stones, there was no reason for him to snatch the lathi and assault the deceased with the same and thereby cause his death. 18. This Court, therefore, feels that the accused had in fact exceeded his limit of private defence. If the deceased was only pelting stones, there was no reason for him to snatch the lathi and assault the deceased with the same and thereby cause his death. 18. Considering all these aspects and after making a cumulative assessment of the evidence, this Court feels that it is a fit case where the conviction u/s 302, IPC would not be just and proper. Therefore, the conviction of the accused-Appellant u/s 302, IPC is altered to one u/s 304, Part-II, IPC and the accused Appellant is sentenced to undergo rigorous imprisonment for seven years. It is needless to state that the period of imprisonment already undergone would be treated as set off. The appeal is accordingly partly allowed. S.C. Parija, J. 19. I agree.