JUDGMENT : A.S.Naidu, J. - Four accused persons, in eluding the Appellants, faced trial for commission of offences u/s 302 read with Section 34 and Section 324 of the Indian Penal Code in the court of learned 2nd Addl. Sessions Judge, Cuttack in Sessions Trial No. 257/1994. Learned Sessions Judge, Cuttack convicted three of the accused persons u/s 302 I.P.C. and sentenced them to under go R.I. for life, but then acquitted the fourth accused, i.e., Sashi Dei. The order of conviction and sentence is assailed in this Criminal Appeal. 2. The prosecution case, bereft of unnecessary details, is that on 5th December, 1993 at about 4 P.M. a Peon from Kanakadajodi Grama Panchayat came to the village of the Appellants and served a notice issued by Grama Panchayat on Appellant No. 1. Being enraged of the fact that the said notice had been issued at the behest of Fagunath, Appellant No. 1 went to him and questioned as to why he had made a complaint against him. In course of altercation a tussle ensued between Appellant No. 1 and Fagunath. At that moment other accused persons came to the spot being armed with weapons. Appellant No. 2, Janak Sahoo and Appellant No. 1, Dhadi @ Nityananda Sahu, dragged Fagunath to the village street and Janak dealt a farsa blow on the head of Fagunath. Simultaneously Appellant No. 1, Dhadi @ Nityananda Sahu and Appellant No. 3, Katikia @ Pramod Sahu, assaulted Fagunath on the chest by lathis and the other accused Sashi Dei thrust "kunta" (a pointed weapon) on different parts of the body of Fagunath. It was further alleged that when P.W.1 went to rescue of the deceased, she was also assaulted by Janak and so also P. Ws.2 and 3. With the impression that Fagunath succumbed to the injuries caused to him, the accused persons ran away from the spot. Thereafter, Fagunath was removed to Government Hospital at Maniabandha where the doctor after examining him declared dead. Alleging the aforesaid facts, P.W.1 lodged an F.I.R. at Maniabandha Out Post. With the impression that Fagunath succumbed to the injuries caused to him, the accused persons ran away from the spot. Thereafter, Fagunath was removed to Government Hospital at Maniabandha where the doctor after examining him declared dead. Alleging the aforesaid facts, P.W.1 lodged an F.I.R. at Maniabandha Out Post. The said F.I.R. was sent to Baramba P.S. for registration and P.W. 13, the O.I.C. of Baramba P.S. took up investigation, sent the dead body for post mortem examination, arrested the accused persons, recovered the weapon of offence from the possession of different accused persons and after completing all formalities submitted charge sheet before learned J.M.F.C., Baramba in G.R. Case No. 183/1993. Learned J.M.F.C. on being satisfied that prima facie case was made out, took cognizance of the offence and committed the case to the Court of Session for trial. 3. The accused persons took the plea that on the date of occurrence when Appellant No. 1, Dhadi @ Nityananda Sahu asked Fagunath about the notice a quarrel ensued between them and during such quarrel Fagunath, his wife P.W.1 and his son P.W.3 assaulted Dhadi @ Nityananda Sahu, Janaka Sahu and Sashi Dei. Consequently, they sustained grievous injuries. A report to that effect was also lodged at Baramba P.S. by Appellant No. 1, Dhadi @ Nityananda Sahu and G.R. Case No. 183/1993 was registered. They denied all other allegations. 4. In order to substantiate their Case, the prosecution got examined thirteen witnesses. Out of them P. Ws.1,2 and 3 were the wife, elder brother's wife and son of Faghunath. They were the eye witnesses to the occurrence. P.W.4 was the doctor, who examined P. Ws.l,2 and 3 on police requisition. P.W.5 was an eye witness to the occurrence and also a witness to the seizure of the lathis which were recovered at the instance of accused Janak. P.W.6 was another seizure witness in whose presence the axe was recovered and seized. P.W.7 was also an eye witness but he was declared hostile. P.W.8 was a witness to the occurrence. P.W.9 was another seizure witness. P.W.10 was a witness to the inquest. P.W.11 was the constable who escorted the dead body for post mortem examination. P.W.12 was the doctor who conducted autopsy and P.W.13 was the Investigating Officer. On behalf of the defence the doctor who examined the accused person and treated their injuries was examined as D.W.1. 5. P.W.9 was another seizure witness. P.W.10 was a witness to the inquest. P.W.11 was the constable who escorted the dead body for post mortem examination. P.W.12 was the doctor who conducted autopsy and P.W.13 was the Investigating Officer. On behalf of the defence the doctor who examined the accused person and treated their injuries was examined as D.W.1. 5. Learned Sessions Judge after vivid discussion of the evidence, both oral and documentary, arrived at a conclusion that the prosecution had failed to substantiate its case against the accused Sashi Dei beyond all reasonable doubts and acquitted the charge u/s 302 of I.P.C. her from Similarly, learned Sessions Judge also held that the prosecution failed to establish the charge u/s 324 of I.P.C. against Appellant No. 1, Dhadi @ Nityananda Sahu and acquitted him of the said charge, but then held that the prosecution was able to establish their case beyond all reasonable doubts against Appellant No. 1, Dhadi @ Nityananda Sahu, Appellant No. 2, Janak Sahoo and Appellant No. 3, Katikia (cy Pramod Sahu, u/s 302 read with Section 34 of the I.P.C. and further u/s 324 of I.P.C. against accused Janak Sahoo and held them guilty there under. 6. The said judgment and order of conviction and sentence is assailed mainly on the ground that learned Sessions Judge has not properly appreciated the evidence on record and the order of conviction is contrary to law. 7. According to Mr. Sahu, learned Counsel for the Appellants, reveal that there was ample evidence on record to the original F.I.R. was suppressed and as such the prosecution case becomes suspicious. It is submitted that the prosecution having failed to explain the injuries sustained by the accused persons, learned Sessions Judge acted illegally in not discarding the prosecution evidence, on the ground that it has not come to the court with clean hands. The seizure of weapon of offence having not been proved beyond all reasonable doubts, learned Sessions Judge acted illegally in holding that the weapons belong to the accused persons. Mr. Sahu relying upon the evidence of P. Ws.l,2 and 3 vis-a-vis the F.I.R. submitted, rather forcefully, that as there is no material to reveal that Appellant No. 3, Katikia @ Pramod Sahu, had assaulted Fagunath, learned Sessions Judge acted illegally in not acquitting him. Last but not the least, according to Mr. Mr. Sahu relying upon the evidence of P. Ws.l,2 and 3 vis-a-vis the F.I.R. submitted, rather forcefully, that as there is no material to reveal that Appellant No. 3, Katikia @ Pramod Sahu, had assaulted Fagunath, learned Sessions Judge acted illegally in not acquitting him. Last but not the least, according to Mr. Sahu after acquitting Sashi Dei one of the accused, learned Sessions Judge acted illegally in convicting other accused persons basing on the same set of evidence. 8. All the submissions are strongly repudiated by learned Counsel for the State. According to Mr. Patnaik, learned Sessions Judge has discussed the evidence in extenso and the conclusions arrived at are just and proper and needs no interference. 9. To appreciate the inter se arguments, this Court, being the final court of facts, went through the evidence meticulously and considered the evidence diligently. The evidence of P.W.12, the doctor, who conducted the post mortem reveals that there were as many as five external injuries on the person of Fagunath, out of which two were lacerated wounds and the other three were swelling injuries. On dissection the doctor found that there was fracture of left hand and fracture of 4th, 5th, 6th ribs. It was opined that all the injuries were ante mortem in nature and the cause of death was due to hemorrhage and shock resulting from the injuries to the right lung and fracture of ribs. It was further opined that the injury to the right lung was caused due to fracture of ribs which caused pressure on lungs and the broken ends of the rib bones pressed upon the lung causing laceration. The doctor further opined that none of the injuries noticed by him on the deceased had been caused by sharp cutting or pointed weapon like "kunta". The evidence of P.W.12 and the post mortem report (Ext. 12) leads to an irresistible conclusion that the death of Fagunath was homicidal in nature and the finding of the Sessions Judge to that effect needs no interference. 10. The main contention of Mr. Sahu, learned Counsel for the Appellants, is that the entire prosecution case is shrouded with suspicion and the true facts and circumstances were not brought before the Court, and it is a fit case where benefit of doubt should be extended to the Appellants. To substantiate such submission Mr. 10. The main contention of Mr. Sahu, learned Counsel for the Appellants, is that the entire prosecution case is shrouded with suspicion and the true facts and circumstances were not brought before the Court, and it is a fit case where benefit of doubt should be extended to the Appellants. To substantiate such submission Mr. Sahu relying upon the statement of P.W.1 submitted that the said witness had clearly admitted that she filed an F.I.R. scribed by Prafulla Chandra Pal at Baramba P.S. whereas the F.I.R. (Ext. 1) which was produced in court and marked was scribed by an A.S.I of Police, Baramba P.S. An endorsement was made by the scribe to the effect that as per the oral statement of P.W.1 the A.S.I. scribed the F.I.R. in presence of Pradip Kumar Nath, P.W.3, and Prafulla Chandra Pal. Surprisingly, Prafulla Chandra Pal has not been examined. In his evidence, the O.I.C. had stated that the F.I.R. (Ext. 1) was scribed by the A.S.I. and not by Prafulla Chandra Pal. P.W.1, the informant, having admitted that she had filed the F.I.R. which was scribed by Prafulla Chandra Pal, it is submitted that it was incumbent upon the prosecution to produce the said F.I.R. It is stated that the F.I.R. (Ext.1) is a subsequently created document and not the F.I.R. which was filed by P.W.1. Thus, from the very beginning the prosecution tried to twist the fact. 11. To appreciate the said submission, this Court carefully went through the evidence of P.W.1 and also the F.I.R. (Ext. 1). Admittedly, Prafulla Chandra Pal is a signatory to the F.I.R. so also P.W.3, the son of the informant. The informant had signed the F.I.R. (Ext. 1). The signature of all the aforesaid three persons had been identified in court. Thus, this Court finds that the statement made by P.W.1, is an out come of confusion. P.W.1 had identified her own signature in Ext. 1 so also P.W.3, her son. They had also identified the signature of Prafulla Chandra Pal. Thus, this Court is satisfied that the F.I.R. (Ext. 1) was lodged at Baramba P.S. by the informant P.W.1 and on the basis of the said F.I.R. prosecution was set to motion and investigation commenced. Mr. P.W.1 had identified her own signature in Ext. 1 so also P.W.3, her son. They had also identified the signature of Prafulla Chandra Pal. Thus, this Court is satisfied that the F.I.R. (Ext. 1) was lodged at Baramba P.S. by the informant P.W.1 and on the basis of the said F.I.R. prosecution was set to motion and investigation commenced. Mr. Sahu also made much of the fact that the accused persons were forwarded to the doctor for examination much before filing of the F.I.R., but then of course there was some discrepancy with regard to the time mentioned by the doctor and the time mentioned in the F.I.R. The said discrepancies are very much trifle In nature and does not effect the prosecution case. Fact remains, the F.I.R. (Ext. 1) was lodged at Maniabandh out Post and on the basis of the same, a Station Diary entry was made. Thereafter, the same was transferred to Baramba P.S. where the same was registered. Thus, there was some variation in time. 12. So far as the assault is concerned, this Court finds that there were three eye witnesses to the occurrence. P.W.1 is the widow of the deceased and is also an injured. She had given a vivid picture of the assault. According to her, accused Janak Sahoo and Dhadi @ Nityananda Sahu dragged her husband to the street and then accused Janak dealt a farsa blow on the head of her husband, consequently he fell down on the ground. 13. Perusal of the post mortem report (Ext.12) as well as the evidence of the doctor P.W.12 reveal that there were no incise wounds. Even otherwise, the death was not due to any assault given on the head. P.W.1 further states that after her husband fell down accused Dhadi @ Nityananda Sahu and Katikia @ Pramod Sahu gave blows with "lathis" on his chest and accused Sashi Dei thrust "kunta" on different parts of the body of the deceased. But then, the post mortem report does not support the said fact. The doctor did not notice any piercing injury. The Sessions Judge also did not believe the story so far as the assault said to have been made by Sashi Dei by "Kunta" and acquitted her. The order of acquittal has attained finality. But then, the post mortem report does not support the said fact. The doctor did not notice any piercing injury. The Sessions Judge also did not believe the story so far as the assault said to have been made by Sashi Dei by "Kunta" and acquitted her. The order of acquittal has attained finality. Surprisingly, in the F.I.R. though all the facts have been described, there is no allegation that Katikia @ Pramod Sahu had assaulted Fagunath. Thus, the said statement made in court by the occurrence witnesses appears to be subsequent improvement. However, the post mortem report as well as the evidence of P.W.12 supports the allegation that due to the blows given by Dhadi @ Nityananda Sahu by means of a lathi on the chest of Fagunath, three rib bones got fractures and pierced into the lungs. This statement is not shaken in cross examination. 14. P.W.2 was another eye witness. His statement was also similar to that of P.W.1. P.W.3 was the son of the deceased and was also an eye witness to the occurrence. The evidence of all three witnesses unerringly reveal that due to the assault made by Dhadi @ Nityananda Sahu, Fagunath sustained grievous injuries and fracture of ribs and succumbed due to the said injuries. As discussed earlier all the witnesses consistently alleged that Janak assaulted Fagunath with a farsa, but then the medical report revealed that there was no incised wound. So far as the accused Katikia @ Pramod Sahu is concerned, his name Was neither mentioned in the F.I.R. nor before the Police. He was named for the first time in court. Thus, a cloud of Suspicion arises with regard to the involvement of Katikia @ Pramod Sahu as well as Janak Sahoo. Over all reading of the entire evidence leads to an irresistible conclusion that the prosecution has not come with clean hands so far as the aforesaid two accused persons are concerned and it is a fit case where the benefit of doubt should lean in favour of the aforesaid two accused persons. Apart from the aforesaid facts, no explanation of the injury on the person of the accused also gives an impression that the prosecution had suppressed certain materials and such suppression itself raises a doubt with regard to the truthfulness in the facts stated in court. 15. Apart from the aforesaid facts, no explanation of the injury on the person of the accused also gives an impression that the prosecution had suppressed certain materials and such suppression itself raises a doubt with regard to the truthfulness in the facts stated in court. 15. A cumulative reading of the evidence further leads to the conclusion that the entire episode culminating in the death of Fagunath arose out of a notice issued by the Grama Panchayat to Dhadi @ Nityananda Sahu. It is very much clear that the said notice was issued on the basis of a complaint made by Fagunath. Fact remains, after receiving notice Dhadi @ Nityananda Sahu went and asked Fagunath as to why he had given the complaint and a quarrel ensued leading to a fight. Admittedly, all the three accused persons were assaulted and had sustained injuries. Some of the injuries were grievous in nature. Thus, it is clear that in course of tussle Dhadi @ Nityananda Sahu assaulted Fagunath on his chest by means of a lathi causing fatal injuries. The entire scenario of facts gives an impression that the accused did not have premeditated intention to murder Fagunath. However, in course of altercation the fatal blows were given without considering the consequence thereof. 16. Considering all these facts and keeping in view the nature of injuries sustained, cause of death, weapon used and parts of the body on which blows were dealt, it can be safely concluded that the accused had no premeditated intention to cause the death of Fagunath. 17. In view of the discussions made above, this Court has no hesitation to set aside the order of conviction and sentence passed against the accused persons convicting them u/s 302 of I.P.C. and hold that the prosecution having failed to substantiate their case beyond all reasonable doubts, benefit of doubt should lean' in favour of Appellant Nos. 2 and 3 namely, Janak Sahoo and Katikia @Pramod Sahu, and acquit them u/s 235 of the Code of Criminal Procedure At the same time this Court convicts Appellant No. 1, Dhadi @ Nityananda Sahu u/s 304 Part-II of I.P.C. and sentence him to undergo R.I. for a period of ten years. The period of detention already undergone shall be treated as set off. 18. With the aforesaid modification, this Crl. Appeal is disposed of. S.C. Parija, J. 19. I agree. 20. The period of detention already undergone shall be treated as set off. 18. With the aforesaid modification, this Crl. Appeal is disposed of. S.C. Parija, J. 19. I agree. 20. Appeal disposed of.