JUDGMENT C.R. DASH, J. — This appeal arises out of judgment and order of sentence dated 29.7.1996 passed by learned 1st Addi¬tional Sessions Judge, Berhampur in S.C. No. 24/95(S.C. 328/95 GDC). 2. Learned trial Court found Benu Das (Appellant No.1) guilty of offence under Sections 302/149, I.P.C. and sentenced him to suffer rigorous imprisonment for life. Appellant No. 7- Ananda Das is the brother of Appellant No.1-Benu Das. He and Appellant No. 5 Gura Das were found guilty of offences under Sections 148, 323 and 325, I.P.C. They were sentenced to suffer rigorous im¬prisonment for two years each for the offences under Sections 148 and 325 I.P.C. on each count and six months each for the offence under Section 323 I.P.C. with direction that the sentences are to run concurrently. Other convicts namely Appellant no.2-Gada Das (Father of A-1), Sania Das (A-3), Durjya Das (A-4) and Ballav Das (A-6) were convicted under Section 148, I.P.C. and each of them were sentenced to suffer rigorous imprisonment for two years. 3. The spot of the occurrence is the village road in front of the house of deceased Bisu Das. The occurrence happened at about 8.00 P.M. on 26.03.1995 which was a Sunday. At about 7.00 P.M. on the date of occurrence Mohan Das (informant & P.W.1), who is the son of deceased Bisu Das was returning from his work with a Kati and a Frame used for preparation of bricks in his hands. On the entrance of the village near a bridge Ananda Das (A-7) and Ballav Das (A-6) happened to see him. They passed certain com¬ments regarding the manner in which he (P.W.1) was walking. He (P.W.1) retorted. At this, Ananda Das (A-7) and Ballav Das (A-6) chased him hurling abuses in obscene words against him. They brought out lathis from their respective houses and called others. Benu Das (A-1) holding a yoke, Durjya Das (A-4) and Gada Das (A-2) holding a lathi each, came out to assault (P.W.1). However, with intervention of Govinda Chandra Sahu (P.W.13) and Kasi Nath Sahu (not examined) the matter subsided. After sometime at about 8.00 p.m. again all the appellants came out in a body using abusives in filthy languages. All of them holding lathis etc. threw challenge to kill P.W.1. However, with intervention of Govinda Chandra Sahu (P.W.13) and Kasi Nath Sahu (not examined) the matter subsided. After sometime at about 8.00 p.m. again all the appellants came out in a body using abusives in filthy languages. All of them holding lathis etc. threw challenge to kill P.W.1. At that time, deceased Bisu Das was sitting on the “Khani” (a pit where grain is stored in South¬ern part of the State) situated in front of his house. He inter¬vened and tried to explain the matter before the appellants. All of a sudden Benu Das (A-1) gave a blow by the broken yoke he was holding on the head of Bisu Das. Bisu Das fell down on the ground by receiving that blow. When Madhaba Das (P.W.2) went to shift his father, Ananda Das (A-7) assaulted him with lathi. When the informant (P.W.1) rushed to the spot, Gura Das (A-5) gave a lathi blow to his left shoulder. Witnesses like Govinda Chandra Sahu (P.W.13) and others intervened and separated the parties from each other. In the night, after overcoming apprehension that the appellants may again attack them, Mohan Das (P.W.1) along with his brother Debaraj Das (P.W.4) came to the Police Station and lodged oral report, which the I.O. (P.W.16) reduced into writing and registered the case. On completion of investigation the I.O. (P.W.16) filed charge-sheet against the appellants implicating them in the offence punishable under Sections 147/148/323/325/294/506(II)/302/149, I.P.C. 4. Prosecution has examined sixteen witnesses to prove the charge. P.W.1, beside being the informant is a witness to occur¬rence along with P.Ws. 2,3,5,11,12,13 and 14. Out of them P.Ws. 13 and 14 are the independent witnesses to the occurrence, but they did not support the prosecution case. P.W.10 is a witness to seizure of Bed-head Ticket in respect of Madhaba Das (P.W.2). P.W.15 is the Constable, who took the dead body for post-mortem examination. P.W.9 is the Medical Officer, who examined injured Mohan Das (P.W.1) and Madhaba Das (P.W.2). P.W.6 is the Radiolo¬gist, who took X-Ray of right forearm of Madhaba Das (P.W.2) and opined about the fracture injury sustained by him. P.W.7 is the Lecturer of Orthopedic Department in the M.K.C.G. Medical College & Hospital, Berhampur, who treated Madhaba Das (P.W.2) as an indoor patient. P.W.8 is the Medical Officer, who conducted autopsy over the dead body of deceased Bisu Das. P.W.16 is the Investigating Officer. 5. P.W.7 is the Lecturer of Orthopedic Department in the M.K.C.G. Medical College & Hospital, Berhampur, who treated Madhaba Das (P.W.2) as an indoor patient. P.W.8 is the Medical Officer, who conducted autopsy over the dead body of deceased Bisu Das. P.W.16 is the Investigating Officer. 5. Defence plea is one of denial and assault by some of the prosecution party members on the defence party members. Appellant No.1 Benu Das in his defence has taken the further plea of alibi by saying that he had been to other place and after his return he came to know about the occurrence. Defence has however examined none during trial. 6. Learned trial Court, on the basis of evidence on record, held the appellants guilty and sentenced them to suffer the punishment as indicated above. 7. Assailing the impugned judgment, learned counsel for the appellants raises the following contentions: (i) All the occurrence witnesses being related to deceased Bisu Das, all of them should have been held to be interested witness and they should not have been believed by the learned trial Court to return the findings of guilt against the appel¬lants. (ii) There being material contradictions and discrepancies in the prosecution evidence, such evidences should have been disbelieved. (iii) There being mutual assault between the parties and defence party members having sustained injuries on vital parts of their bodies, which go unexplained, the prosecution witnesses should not have been believed wholly to arrive at the conclusion that the appellants are guilty of offence as reflected in the trial Court judgment. (iv) Assuming arguenda, the prosecution case to be true, appellant no.1 should have only been held guilty for offence punishable under section 304 Part-II I.P.C. inasmuch as he had given only one blow to the head of the deceased by a yoke, which is not an usual weapon of offence, but a weapon like stick/lathi. Learned Addl. Govt. Advocate on the other hand supports the impugned judgment. 8. P.Ws. 1,2,3,5,11 and 12 were examined as occurrence witnesses by the prosecution. Admittedly, all of them are rela¬tions of deceased Bisu Das. P.Ws. 1,2 and 3 are sons of the deceased. P.W.5 is the widow of the deceased. P.W.11 being the wife of P.W.4 is the daughter-in-law of the deceased. P.W.12 is the younger sister of the widow (P.W.5) of the deceased. Admittedly, all of them are rela¬tions of deceased Bisu Das. P.Ws. 1,2 and 3 are sons of the deceased. P.W.5 is the widow of the deceased. P.W.11 being the wife of P.W.4 is the daughter-in-law of the deceased. P.W.12 is the younger sister of the widow (P.W.5) of the deceased. The trouble started as P.W.12 did not invite the villagers in the marriage ceremony of her son Budhia (not examined). All the occurrence witnesses being related witness, it is urged by learned counsel for the appellants not to believe them to sustain the charge against the appellants, especially in view of the fact that the independent occurrence witnesses namely Govinda Chandra Sahu (P.W.13) and Upendra Sahu (P.W.14) have turned hostile during trial. 9. Hon’ble Supreme Court in the case of Madhusudan Das vrs. Narayani Bai, AIR 1983 S.C. 114 while ruling to the effect that testimony of a related witness cannot be rejected merely on ground of relationship observed that when a witness holds a position of relationship favouring the party producing him or of possible prejudice against the contesting party, it is incumbent on the Court to exercise appropriate caution when appreciating his evidence and to examine its probative value with reference to the entire mosaic of facts appearing from the record. In the case of Sharad Birdhichand Sarda vrs. State of Maharashtra, AIR 1984 S.C. 1622 Hon’ble Supreme Court held that in view of the close relationship and affection any person related to the deceased would have, such a witness would naturally have a tendency to exaggerate or add facts which may not have been stated to them at all. It has been further held that not that this is done by such a witness consciously but even unconsciously the love and affec¬tion for the deceased would create psychological hatred against the supposed murderer and, therefore, the Court has to examine such evidence with very great care and caution. In the case of State of Gujarat vrs. Nagin Bhai Dhulabhai Patel, AIR 1983 S.C. 839 Hon’ble Apex Court have ruled that relationship or interestedness would not by itself be sufficient to discard the evidence of a witness straight away, unless it is proved that their evidence suffers from serious infirmities which raises considerable doubt in the mind of the Court. Hon’ble Supreme Court in the case of Dalbir Kaur vrs. Hon’ble Supreme Court in the case of Dalbir Kaur vrs. State of Punjab, AIR 1977 SC 472 have held that a close relative, who is a very natural witness, cannot be re¬garded as an interested witness. The term ‘interested’ postulates that the person concerned must have some direct interest in seeing that the accused person is somehow or the other convicted either because he had some animus with the accused or for some other reason. Same is the view of Hon’ble Supreme Court in the case of State of Rajasthan vrs. Kalki, AIR 1981 SC 1390 . Same also is the view of our High Court in the case of State of Orissa vrs. Nilakantha Sahoo and others*, (2009) 44 OCR 754 and Ramesh Naik vrs. State of Orissa, 2009 (II) OLR-889. In view of the settled position of law on the point as discussed supra, evidence of P.Ws. 1,2,3,5,11 and 12 cannot be thrown over board on the sole ground of their relationship with the deceased. The first contention raised by learned counsel for the appellants is, therefore, answered accordingly. 10. The dictum of Hon’ble Supreme Court and other Hon’ble Courts regarding probative value of a related witness being such as aforesaid, the evidence of P.Ws. 1,2,3,5,11 and 12 who are the occurrence witnesses and also are related to the deceased are to be examined with the caution as expected from a Court in the afore-quoted decisions but, of course, with reference to the discrepancies and contradictions as pointed out in the second contention raised by learned counsel for the appellants. 11. The entire transaction consists of two incidents. The first incident, according to the prosecution witnesses, happened when Mohan Das (P.W.1) was returning from work. At that time Ananda Das (A-7) and Ballabha Das (A-6) were sitting on the bridge situated at the entrance of the village. They passed certain comments looking at P.W.1. P.W.1 protested to their such conduct. Then Ananda Das (A-7) and Ballabha Das (A-6) chased P.W.1 up to his house by holding lathis. Govinda Sahoo (P.W.13) and Kasinath Sahoo (not examined) intervened and the matter sub¬sided there. This incident happened at about 7 p.m. as testified by the prosecution witnesses. P.W.2 in his evidence has testified that the bridge in question (where the first incident happened) is not visible from their house. Non-visibility of the bridge from the house of the deceased, where P.Ws. This incident happened at about 7 p.m. as testified by the prosecution witnesses. P.W.2 in his evidence has testified that the bridge in question (where the first incident happened) is not visible from their house. Non-visibility of the bridge from the house of the deceased, where P.Ws. 2,3,5 and 11 also reside being an admitted fact, all the aforesaid witnesses have, however, surprisingly testified parrot-like as to what happened with P.W.1 near the bridge. Admittedly, P.W.1 was coming alone at the time of the aforesaid incident, as found from his evidence. P.W.2 has mixed up the first incident with the second one (in course of which Bisu Das was allegedly murdered) by testifying that Ballabha Das (A-6) and Ananda Das (A-7) chased P.W.1 to assault; P.W.1 came to the house and all the accused persons at about 7 p.m. came to their house in a body. Contradicting P.W.1, P.W.3 has testified that (after the first incident) all the accused persons were running towards their house to assault P.W.1. P.W.5 has contradicted P.W.1 by testifying that when the first incident happened, her husband deceased Bisu Das was present along with P.W.1. P.Ws. 11 and 12 have also deposed parrot-like about the first incident with discrepancies here and there, though there is nothing on record to even suggest that they had the opportunity to see the first incident. Such tenden¬cies of the aforesaid witnesses namely P.Ws. 2,3,5,11 and 12 make us to believe that all of them are prone to tell even a lie, and such a tendency in them is nothing but the outcome of their close relationship and their preparation to prove the prosecution case to the hilt. Had they been truthful, they would not have ventured to testify about the facts not seen by them risking to put the prosecution case at the peril. 12. Before approaching the evidence on record, we propose to find out the basics of the second incident taking a prima facie view of the evidence without being bothered by the discrep¬ancies, etc., as exactly has been done by the learned trial Court to return the finding of guilt. With some discrepancies on the point of time, which is not material to disbelieve a witness, it is found that the second incident happened at about 8 p.m. In course of the incident Benu Das (A-1) came to the spot holding a broken yoke (M.O.-II). With some discrepancies on the point of time, which is not material to disbelieve a witness, it is found that the second incident happened at about 8 p.m. In course of the incident Benu Das (A-1) came to the spot holding a broken yoke (M.O.-II). Other appellants came over the spot hold¬ing either ‘thenga’ or ‘lathi’ each. Benu Das (A-1) mounted the fatal assault on the head of the deceased by the broken yoke (M.O.-II). When Madhab Das (P.W.2) went to rescue his father, Ananda Das (A-7) gave a lathi blow on his right hand, and when Mohan Das (P.W.1) went to rescue his father, Gura Das (A-5) assaulted on his left hand with a lathi. Other appellants though were present during the occurrence, they, except Benu Das (A-1), Ananda Das (A-7) and Gura Das (A-5), did not participate in the assault. 13. Coming to the discrepancies and contradictions pointed out in the prosecution evidence, it is to be found out whether such discrepancies are normal/minor or material. It has been held in a catena of decisions that normal/minor discrepancies in the evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, which are always there, however honest and truthful a witness may be. Material discrepancies on the other hand are those which are not normal and not expected of a normal person. Material discrep¬ancies are those, which shake the very basic version of the witnesses, as held by Hon’ble Supreme Court in the famous case of Bharwada Bhoginbhai Hirijibhai vrs. State of Gujarat, AIR 1983 SC 753 . Courts have to label the category, to which a discrepancy may belong. While normal/minor discrepancies do not strike at the root of the prosecution case and over much importance cannot be given to them, material discrepancies do so and in a given case those may be taken into consideration even to disbelieve a wit¬ness. These aspects were highlighted in Krishna Mochi and others vrs. State of Bihar, 2002 (6) SCC 81 , Sucha Singh vrs. State of Punjab, 2003 (7) SCC 643 , Zahira H. Sheikh vrs. State of Gujurat, 2004 (4) SCC 158 , Ram Udgar Singh vrs. State of Bihar, 2004 (10) SCC 443 , Gorle S. Naidu vrs. These aspects were highlighted in Krishna Mochi and others vrs. State of Bihar, 2002 (6) SCC 81 , Sucha Singh vrs. State of Punjab, 2003 (7) SCC 643 , Zahira H. Sheikh vrs. State of Gujurat, 2004 (4) SCC 158 , Ram Udgar Singh vrs. State of Bihar, 2004 (10) SCC 443 , Gorle S. Naidu vrs. State of Andhra Pradesh, 2003 (12) SCC 449, Gubbala Venugopalswamy vrs. State of Andhra Pradesh, 2004 (10) SCC 120 , Syed Ibrahim vrs. State of A.P., 2006 (10) SCC 601 and Jayaseelan vrs. State of Tamilnadu, (2009) 42 OCR (SC)-893. 14. We feel persuaded to fix the spot of the occurrence first for better appreciation of the evidence on record. The spot of the occurrence is the village street running in front of the house of the deceased. The I.O. in his evidence has testified that he seized blood stained earth and sample earth from that spot, i.e., the village street in front of the house of the deceased. The distance of the house of the deceased from that spot is to be fixed on the basis of the evidence of P.W.2 and the I.O. (P.W.16). The spot map (Ext.15) prepared by the I.O. (P.W.16) on the basis of what he himself had seen at the spot is also admis¬sible in evidence to find out the above aspect. The grain-pit (‘Khani’) is adjacent to the village street towards the eastern side of the house of the deceased, as found from the spot map (Ext.15) and evidence of the I.O. (P.W.16). The grain-pit (‘Khani’), as found in the southern part of the State, must have covered width of about two cubits from western to eastern side, i.e., from the side of the house of the deceased towards the road. The house of the deceased is at a distance of about four feet from the grain-pit (‘Khani’), as found from the evidence of P.W.16. According to P.W.2, the length of the verandah of their house is about 2 to 3 cubits. In view of such evidence, the main door of the house of the deceased, which comes after verandah, must be at a distance of about 4 to 5 cubits from the village street, as their house is at a distance of about 2 cubits 4 feet from the street, as found from the evidence of P.W.2, P.W.16 and the spot map (Ext.15). 15. 15. P.W.1 in his cross-examination has testified “there is (was) no light at our street.” P.W.2 in his cross-examination has testified “our village street is (was) in dark place at the time of occurrence.” P.W.14, who has turned hostile and whose evidence does not get effaced on the ground of his hostility alone, has testified that the place of occurrence was a dark place. The I.O. (P.W.16) in the spot map (Ext.15) prepared by him has shown a lamp-post near the spot of occurrence, but in view of the afore¬said testimony of P.Ws. 1, 2 and 14 it is to be held that there was no street light at the time of occurrence and it was dark then. In view of such evidence, material discrepancies creep in into the evidence of all the prosecution witnesses, who are testified to have seen the occurrence without any positive evi¬dence regarding source of the light to facilitate their vision. And in such circumstance, distance of the spot with reference to the place, where a witness was positioned at the time of occur¬rence, assumes much significance. 16. With the aforesaid background, we propose to find out the position of the witnesses in relation to the spot of occurrence. P.W.1 is testified to be present near his father at the time Benu Das (A-1) assaulted his father (deceased) on his head by the broken yoke (M.O.-II). From the cross-examination of P.W.1 and the I.O. (P.W.16) it is however found that P.W.1 has been contradicted under Section 145 of Evidence Act on this as¬pect, in as much as he (P.W.1) had stated before the I.O. that he was in his house and his father was on the ‘Khani’ (grain-pit) and the ‘Khani’, as discussed above, is situated outside the house. Such fact goes a long way to show that P.W.1 was not near his father at the time of occurrence. There is nothing on record as to from where he saw the occurrence and how he could see the same in the darkness. P.W.2 cannot be held to be present near his father (deceased) at the time of occurrence in view of the fact that contradicting all the occurrence witnesses, he has testified that his father was sitting on the verandah at the time of occur¬rence. P.W.2 cannot be held to be present near his father (deceased) at the time of occurrence in view of the fact that contradicting all the occurrence witnesses, he has testified that his father was sitting on the verandah at the time of occur¬rence. He is also silent about his position in relation to the spot of occurrence at the time assault was mounted on his father (deceased) and as to how he could see the occurrence in darkness. As discussed supra, P.W.2 having mixed up the first incident and the second incident, he cannot be believed to have seen the occurrence in the manner he has deposed. P.W.3, who is another son of the deceased, was aged about 18 years at the relevant time. He is testified to have seen the occurrence. But, from the cross-examination of P.W.3 and the I.O. (P.W.16) it is found that this witness (P.W.3) has been contradicted under Section 145 of the Evidence Act in as much as he (P.W.3) had stated before the I.O. that he could not come outside from his house out of fear. If such a contradiction is taken into consideration, P.W.3 cannot be held to have seen the occurrence in the manner he has deposed and he cannot be believed as an eye-witness. P.W.5, widow of the deceased having testified in her cross-examination to the effect that her vision is not perfect at night, her testimony as an eye-witness, in absentia of evidence regarding her position in relation to the spot of the crime and the source of light, which facilitated her vision to see the occurrence in the manner de¬posed to by her, cannot be believed. P.W.11 is to be disbelieved on the same rationale inasmuch as she has also not testified about her position in relation to the spot and the source of light. She being a lady and daughter-in-law of the deceased, must not have come outside the street and in the darkness she could not have seen the occurrence from the house in the manner she has deposed to. P.W.12 was introduced as an eye witness by P.W.5 for the first time during her (P.W.5’s) examination in Court. Cross-examination of P.W.12 and the I.O. (P.W.16) shows that she (P.W.12) has been totally contradicted under Section 145 of the Evidence Act on the point of her being a witness to the occurrence. 17. P.W.12 was introduced as an eye witness by P.W.5 for the first time during her (P.W.5’s) examination in Court. Cross-examination of P.W.12 and the I.O. (P.W.16) shows that she (P.W.12) has been totally contradicted under Section 145 of the Evidence Act on the point of her being a witness to the occurrence. 17. There are some other discrepancies in the evidence of the prosecution witnesses. P.Ws. 1 and 2 have testified that Benu Das (A-1) came to the spot holding a broken yoke, but P.Ws. 5 and 11 have testified that the yoke got broken when Benu Das (A-1) assaulted the deceased with the same. P.W.1 does not speak of any verbal altercation or hurling of abuses by the appellants before mounting the assault, but P.W.2 has testified that Benu Das (A-1) used obscene languages against his father and giving threat, he mounted the fatal assault. All the witnesses have testified that deceased was sitting on the ‘Khani’ (grain-pit) before arrival of the appellants at the spot, but P.W.2 has testified that deceased was sitting on the verandah of the house. The aforesaid discrep¬ancies may be minor in nature, if viewed from the entire mosaic of facts obtained on record under normal circumstance, but in view of our discussions supra, these discrepancies may be viewed as additional facts to justify our conclusion that the witnesses are not telling the truth. 18. All the prosecution witnesses are in unison on the fact that it was Benu Das (A-1), who mounted the fatal assault on the head of the deceased. They are further in unison on the fact that the weapon of offence was the yoke held by Benu Das (A-1). Blood stained earth, blood-soaked wearing apparels of the deceased, the yoke and two lathis with blood stains having been seized by the I.O. (P.W.16) during investigation and taking into consideration the nature of wounds sustained by the deceased, as found from the evidence of the Medical Officer (P.W.8), it is to be held that there was much bleeding from the wound of the deceased after the assault, as a result of which the weapons of offence and the wearing apparels got stained with blood. The forwarding letter of the exhibits to the State Forensic Science Laboratory (Ext.17) and the opinion of the Chemical Examiner (Ext.18) show that blood of group-A of human origin was found on the yoke, but blood of group-B of human origin was found on wearing apparels of the deceased. Blood of group-B of human origin was also found on two lathis. Such evidence on record makes it clear that assault was mounted on the deceased with lathi and not with yoke. Our such conclusion is also supported by the opinion of the Medical Offi¬cer (P.W.8), who has testified “The injuries were possible by bamboo lathi. The injuries observed by me are more possible with the help of bamboo lathi (M.O.-I).” The aforesaid piece of evi¬dence obtained from Exhibits 17 and 18 which were not at all taken into consideration by the trial Court, completely belies the prosecution evidence to the effect that it was the yoke (M.O.II) with which Benu Das (A-1) mounted the fatal assault, because if the yoke (M.O.II) would have been used in the manner testified by the P.Ws., then there would have been presence of blood of Group “B” on the same and not blood of Group “A”. 19. Learned Addl. Govt. Advocate appearing for the State relies heavily on the evidence of P.Ws. 1 and 2 and submitted that they having received injuries during the transaction, they must not be telling a lie. 20. We are conscious of the salutary rule of evidence that evidence of an injured witness is the best evidence, and in a given case no corroboration is necessary if evidence of such a witness inspires confidence of the Court. But said rule cannot be stretched further to mean that despite infirmities, discrepan¬cies, shortcomings and contradictions in the evidence of such a witness, he is to be believed. If learned trial Court would have taken into consideration the defence plea in its proper perspec¬tive, learned Addl. Govt. Advocate would not have been persuaded to raise the above contention. 21. It is well settled in law that the defence is free to take even inconsistent pleas. In the case of State of U.P. vrs. Ram Swarup and another, AIR 1974 SC 1570 , it has been held that Court can find a plea in favour of accused without accused having taken that plea. 21. It is well settled in law that the defence is free to take even inconsistent pleas. In the case of State of U.P. vrs. Ram Swarup and another, AIR 1974 SC 1570 , it has been held that Court can find a plea in favour of accused without accused having taken that plea. It has further been held that defence need not lead evidence to prove defence plea, and the prosecution evidence and facts emerging out of the case can be relied on to sustain a defence plea. The aforesaid aspect has also been highlighted in the cases of Lakshmi Singh and others vrs. State of Bihar, AIR 1976 SC 2263 . In the case of Basudev Hazra vrs. Matiar Rahaman Mandal, AIR 1971 SC 722 , it has been held that defence of an accused person can legitimately be taken into consideration while assessing the value of the evidence and judging the guilt and innocence of the accused. 22. Defence plea in the present case, besides what has been stated before hand, is to the effect that P.W.1 and his brothers along with Uali Das and Budhia Das went to the house of Gura Das (A-5); Uali Das and Budhia Das started abusing Gura Das (A-5) near his house; Durjya Das (A-4) and Sania Das (A-3) came out of their houses to subside the matter; in the meantime Uali Das assaulted Durjya Das (A-4) by means of a lathi and Mohan Das (P.W.1) tried to assault them by means of a ‘kati’; Gura Das (A-5) warded off the blow and received injuries on his left hand and palm. P.W.14, who is the independent eye-witness to the occur¬rence but turned hostile, in his cross-examination has testified that there were shouting and quarrel between the appellants and the deceased and his sons since about ten to twenty days. He has further testified that he went away when the noise and shouting was going on P.W.1 in his cross-examination has testified that by the time he reached the P.S., he found Gura Das (A-5) there in injured condition and blood was oozing out from his left hand and palm. He also saw Durjya Das (A-4) in the P.S. He has admitted in his cross-examination that G.R. Case No. 238/95 under Sections 341/294/323/324/506/34, I.P.C. has been initiated against them by Gura Das (A-5). He also saw Durjya Das (A-4) in the P.S. He has admitted in his cross-examination that G.R. Case No. 238/95 under Sections 341/294/323/324/506/34, I.P.C. has been initiated against them by Gura Das (A-5). The I.O. (P.W.16) has testified that prior to lodging of the F.I.R. in the present case he had already regis¬tered the case on the basis of the report filed by Gura Das (A-5). In the said case, as found from the testimony of I.O. (P.W.16), he seized the blood-stained earth and sample earth from the house of Gura Das (A-5), vide Seizure List, Ext.B. P.W.16, in specific term, has testified in his cross-examination that both the incidents relating to case and counter case arose out of one transaction at the same time and on the same day. The aforesaid defence plea, which is required to be proved by preponderance of probabilities, therefore, finds support from the evidence of P.W.14, P.W.16 and to some extent from the evidence of P.W.1. In that view of the matter, it cannot be believed that the appel¬lants in a body came near the house of the deceased and committed the offence in the manner, as alleged by the prosecution witness¬es. Rather, another conclusion, which may be arrived at, is that after the first incident (which happened near the bridge) was subsided, P.W.1 and others went to confront the matter to the appellants and the trouble started. P.Ws. 1 and 2 might have received injuries in course of assault and counter assault, and the deceased must also have received injuries in the process. The occurrence having happened in the darkness, none has seen as to who assaulted whom and by what weapon. On consideration of the defence plea, therefore, we are constrained to hold that the prosecution is guilty of the latches of suppressing the very genesis of the occurrence. It is further held that the prosecu¬tion has failed to prove the charge against the appellants. 23. In view of our discussions supra, the conviction and order of sentence, as recorded against the appellants by learned Trial Court, are set aside. Appellant Nos. 2 to 7, namely Gada Das, Sania Das, Durjya Das, Gura Das, Ballav Das and Ananda Das are stated to be on bail. They be discharged of the bail-bonds executed by them. Appellant No.1 Benu Das is stated to be in custody. Appellant Nos. 2 to 7, namely Gada Das, Sania Das, Durjya Das, Gura Das, Ballav Das and Ananda Das are stated to be on bail. They be discharged of the bail-bonds executed by them. Appellant No.1 Benu Das is stated to be in custody. He be released forthwith, if his detention is not re¬quired in any other case. The Criminal Appeal is accordingly allowed. L. MOHAPATRA, J. I agree. Appeal allowed.