JUDGMENT S.K.SAHOO, J. - The appellant in Criminal Appeal No.253 of 2010, namely Pradip Sahoo, appellants in Criminal Appeal No.302 of 2010, namely, Sanjib Sahoo and Tukun @ Premanananda Sahoo along with co-accused Munu Meher, Rajesh Sahu and Umesh Bagarty faced trial in the Court of learned Addl. Sessions Judge, Sambalpur in Sessions Trial No. 44/16 of 2004 for offences punishable under Sections 148, 302/149 Indian Penal Code and Sections 25 (a) and 27 (1) of Arms Act. The learned trial Court vide impugned judgment and order dated 1.5.2010 acquitted the co-accused persons Munu Meher, Rajesh Sahu and Umesh Bagarty of all the charges. The appellants in both the appeals were also acquitted of the charge under Section 148 Indian Penal Code and Sections 25(a) and 27 (1) of Arms Act but they were found guilty under Section 302/34 Indian Penal Code and accordingly the learned trial Court convicted them of such offences and sentenced them to undergo rigorous imprisonment for life and to pay a fine of Rs.1000/- each under Section 302/34 IPC, in default of payment of fine, to undergo further R.I. for a period of one month each. 2. The prosecution case as per FIR lodged by Purandar Behera (P.W.7) is that on 20.1.2003 during the morning hours, the informant had been to Lapanga Bus Stand. At about 9 O’ clock, he found the appellants along with three others came in two motor cycles and took tiffin from the Tiffin Stall of Rajendra Sahu situated in Lapanga Bus Stand and thereafter left the place. At about 10 O’ clock, the brother of the informant namely Khirod Kumar Behera (hereafter the “deceased”) came on a Hero Honda Motor cycle and purchased fruits from the Fruits Stall of one Satish Kumar Gupta (P.W.3). The three appellants along with their three associates again came in two motor cycles to the bus stand being armed with sword, bhujali, gupti and revolver and all of a sudden they surrounded the deceased and attacked him. The persons present at the bus stand ran hither and thither. The deceased was brutally assaulted and the accused persons intimidated the persons present there by showing sword, bhujali, gupti and revolver. They threatened the shopkeepers to close down their shops. The shop keepers also ran away out of fear. The informant shouted for which the accused persons left the place on their motor cycles. The deceased was brutally assaulted and the accused persons intimidated the persons present there by showing sword, bhujali, gupti and revolver. They threatened the shopkeepers to close down their shops. The shop keepers also ran away out of fear. The informant shouted for which the accused persons left the place on their motor cycles. The informant rushed near the deceased and found him lying on the ground with bleeding cut injuries on the arms, neck, face, head and chest. The informant shifted the deceased to Jharsuguda Hospital in a vehicle where the doctors declared him dead. On the basis of such an FIR which was received at Rengali Police Outpost on 20.01.2003 at 11.30 a.m., station diary entry was made by P.W.22 Malaya Kishrore Nayak, Sub-Inspector of Police, Rengali Police Outpost who sent the written report of the informant (P.W.7) to the Officer-in-Charge, Katarabaga Police Station through special messenger for registration of the FIR. P.W.20 Subodh Kumar Mallick who was the Officer-in-charge of Katarabaga Police Station, on receipt of the written report registered Katarabaga P.S. Case No.11 of 2003 dated 20.1.2003 under Section 302/34 IPC and Sections 25 and 27 of the Arms Act and took up investigation of the case and proceeded to the spot. P.W.22 who initially visited the spot prior to the arrival of P.W.20, found one sixer revolver written on it as “Made in Japan” and four numbers of live cartridges of .38 bore and one fired bullet with Khokha (cap) and another cover of the sword lying at the spot which were seized by him under seizure list Ext.1 in presence of the witnesses. P.W.22 also examined the local shop keepers and other witnesses and informed the Scientific Officer to examine the spot. He collected sample earth and blood stained earth from the spot with the assistance of scientific team and seized the same in presence of the witnesses and prepared seizure list Ext.4/1. At that time P.W.20 reached at the spot and prepared spot map Ext.8. P.W.20 proceeded to Jharsuguda Headquarters Hospital where he found the cadaver of the deceased and accordingly prepared inquest report Ext.2/3 and then sent the cadaver for post mortem examination. P.W.16 Dr. Rohit Kumar Patel conducted post mortem examination and submitted his report Ext.7. At that time P.W.20 reached at the spot and prepared spot map Ext.8. P.W.20 proceeded to Jharsuguda Headquarters Hospital where he found the cadaver of the deceased and accordingly prepared inquest report Ext.2/3 and then sent the cadaver for post mortem examination. P.W.16 Dr. Rohit Kumar Patel conducted post mortem examination and submitted his report Ext.7. P.W.22 seized the command certificate as well as wearing apparels of the deceased under seizure list Ext.3/2 and as per the direction of Circle Inspector of Police, he handed over the charge of investigation to P.W.20. P.W.20 received the sketch map prepared by the Revenue Inspector, Lapanga vide Ext.10 as per his requisition. He also received the post mortem report. He arrested two co-accused persons namely Munu Meher and Rajesh Sahu and forwarded them to the Court. On 28.6.2003 P.W.20 received instruction from the Court regarding surrendering of all the three appellants. He prayed before the learned S.D.J.M., Sambalpur on 3.9.2003 to send the seized revolver and the cartridges (live and empty) and one fired ball ammunition for chemical examination to the RFSL, Sambalpur. On 12.9.2003 he prayed before the learned S.D.J.M., Sambalpur for sending the blood stained earth, sample earth and wearing apparels for chemical examination to RFSL, Sambalpur. He received the Chemical Examination Reports. He also took the appellants on remand for the purpose of investigation and sent them for their medical examination to Medical Officer, DHH, Sambalpur who submitted his report vide Ext.16 and Ext.17. P.W.20 obtained the sanction order for prosecution of the accused persons under the provisions of Arms Act from District Magistrate-cum- Collector, Sambalpur vide sanction order Ext.18. On completion of investigation, P.W.20 submitted charge sheet under Sections 147/148/302/149 IPC and Sections 25 and 27 of Arms Act. 3. The defence plea of the appellants is one of denial and it is pleaded that due to previous enmity, they have been falsely entangled in the case. 4. In order to prove its case, the prosecution examined twenty two witnesses. P.W.1 Sanjeet Panda, P.W.2 Rajendra Sahoo, P.W.3 Satis Kumar Gupta, P.W. 4 Nepal Behera, P.W.5 Bhismadev Meher did not support the prosecution case for which they were declared hostile by the prosecution and also cross examined by the Associate Public Prosecutor. P.W.6 Shiba Charan Gupta proved his signature on the inquest report. P.W.1 Sanjeet Panda, P.W.2 Rajendra Sahoo, P.W.3 Satis Kumar Gupta, P.W. 4 Nepal Behera, P.W.5 Bhismadev Meher did not support the prosecution case for which they were declared hostile by the prosecution and also cross examined by the Associate Public Prosecutor. P.W.6 Shiba Charan Gupta proved his signature on the inquest report. P.W.7 Purandar Behera is the brother of the deceased and he is an eye witness of the occurrence. He is also a witness to the inquest and informant in the case. P.W.8 Prafulla Kumar Behera is another brother of the deceased who is also an eye witness to the occurrence. He is a witness to the seizure of wearing apparels of the deceased as per seizure list Ext.3/2. P.W.9 Kiran Behera is also another brother of the deceased who highlighted about the political rivalry between the appellants and the deceased. He is a witness to the inquest report Ext.2/3. P.W.10 Sankar Mishra did not support the prosecution case for which he was declared hostile and cross examined by Associate Public Prosecutor. P.W.11 Bishnu Charan Behera was the constable attached to Rengali Police Outpost who stated about the seizure of wearing apparels of the deceased. P.W.12 Jhumer Guru did not support the prosecution case for which he was declared hostile and cross examined by the Associate Public Prosecutor. P.W.13 Pradeep Patel stated to have seen the appellants leaving in a motor cycle on the date of occurrence. P.W.14 Dibakar Bhainsa did not support the prosecution case for which he was declared hostile and cross examined by the Associate Public Prosecutor. P.W.15 Prafulla Sahoo pleaded his ignorance about any seizure in the case. P.W.16 Dr. Rohit Kumar Patel who was attached to District Headquarters Hospital, Jharsuguda as O & G Specialist conducted post mortem examination over the dead body of the deceased on 20.01.2003 and proved his report Ext.7. P.W.17 Bhabani Sankar Badhai expressed his ignorance about the occurrence. P.W.18 Tejaram Meher did not support the prosecution case for which he was declared hostile and cross examined by the Associate Public Prosecutor P.W.19 Ghana Patel expressed his ignorance about the occurrence. P.W.20 Subodh Kumar Mallick who was the officer in-charge of Katarbaga Police Station is the Investigating Officer in this case. P.W.21 Rabisankar Padhi was the Constable attached to Bargaon Police Station, Sundargarh who stated about the seizure of a Yamaha Motor Cycle in his presence. P.W.20 Subodh Kumar Mallick who was the officer in-charge of Katarbaga Police Station is the Investigating Officer in this case. P.W.21 Rabisankar Padhi was the Constable attached to Bargaon Police Station, Sundargarh who stated about the seizure of a Yamaha Motor Cycle in his presence. P.W.22 Malaya Kishore Nayak was the Sub-Inspector of Police at Rengali Police Outpost who received the written report from P.W.7 and sent it to P.W.20 for registration. He conducted investigation of the case till he handed over the investigation to P.W.20. No witness was on examined on behalf of the defence. The prosecution exhibited 19 documents and also marked two material objects. Ext.1 is the seizure list of revolver, Ext.2/3 is the inquest report, Ext.3/2 and 4/1 are the seizure lists, Ext.5 is the FIR, Ext.6 is the command certificate, Ext.7 is the post mortem report, Ext.8 is the Spot Map, Ext.9 is the dead body challan, Ext.10 is the sketch map, Exts.11 and 12 are the prayer of P.W.20 to SDJM on 3.9.2003 and 12.9.2003 respectively, Ext.13 is the forwarding letter of the S.D.J.M., Sambalpur, Ext.14 is the ballistic report, Ext.15 is the Chemical Examination Report, Ext.16 and 17 are the reports of Medical Officer, Ext.18 is the sanction order and Ext.19 is the seizure list. M.O.I is the Jean Pant and M.O.II is the Check Shirt of the deceased. 5. Now it is to be seen how far the prosecution has established that the death of the deceased Khirod Kumar Behera is homicidal in nature. In order to establish such aspects, apart from the inquest report (Ext. 2/3), the prosecution has examined doctor (P.W.16) who conducted autopsy over the dead body on 20.01.2003 at District Headquarters Hospital, Jharsuguda and found the following injuries:- External injury:- Head: Incised wound of size 3” x 2” x bone depth on left occipital region behind the ear. Muscles vessels cut open, bone exposed, edges of the injury was well defined and smooth. Face: Incised wound of size 2” x ½” x bone depth on left side cheek in vertical direction. Neck: Incised wound of size 2” x ½” x muscle depth on right lateral side on the root of neck cutting the muscles, vessels, nerves obliquely. Chest : Back side:- (a)One incised wound of size 3” x 2” x muscle depth vertically direction on left side below the posterior axillary fold. Neck: Incised wound of size 2” x ½” x muscle depth on right lateral side on the root of neck cutting the muscles, vessels, nerves obliquely. Chest : Back side:- (a)One incised wound of size 3” x 2” x muscle depth vertically direction on left side below the posterior axillary fold. (b)One Incised wound on the right scapula region upper border of size 4” x 1” x bone depth parallel to the surface. (c)Incised wound on the right scapular region on the lower border of size 3” x 2” x bone depth parallel to the surface. (d)One incised wound below the costal margin of size 1” x 1” x skin depth parallel to the surface. Front side:- (a)Stab wound anteriorly root of neck below the adam surface of size 1” x ½” x opening of trachea. (b)Stab wound 1” below the left nipple of size 1” x ½” x lungs depth tearing pleura lungs laceration. (c)Stab wound 2” below right nipple of size 1” x ½” x lungs depth tearing pleura lungs laceration. The three stab wounds were slit like opening. Upper left limb: (a)Stab wounds six in numbers left deltoid muscle of size ½” x 1” apart and about 1” x 1/2 “ x muscle depth (b)Linear abrasion on lateral side of left arm of size 6” x ¼” x skin depth. (c)Multiple incised wound on left wrist joint looking like lacerated wound causing fracture and dislocation of wrist joint attached with a skin-tag on ulnar aspect only. Upper right limb: (a)One lacerated wound on right fore-arm of size 2”x 1” x skin depth in the middle lateral aspect. (b)Multiple incised wound looking like a lacerated injury on right wrist joint causing fracture and dislocation of wrist joint attached with skin-tag with few pieces of bones on ulnar aspect only. Iron ring was there which was bent. INTERNAL INJURIES:- Brain: Subdural haematoma on left occipital region petechial haemorrhage in the brain. Lungs: Lacerated in the middle part both sides and trachea is open. Heart was intact. The doctor opined that all the injuries noticed on the deceased were antemortem in nature and caused by sharp cutting pointed weapon. The cause of death was opined on account of haemorrhage and injuries to the vital organs like brain, lungs and trachea and the injuries were possible by assault with sword, knife and bhujali. Heart was intact. The doctor opined that all the injuries noticed on the deceased were antemortem in nature and caused by sharp cutting pointed weapon. The cause of death was opined on account of haemorrhage and injuries to the vital organs like brain, lungs and trachea and the injuries were possible by assault with sword, knife and bhujali. External injuries on head, chest front side (b) & (c) were opined to be individually fatal to cause death and death was homicidal in nature. The post-mortem report has been marked as Ext-7. The learned counsels for the appellants have not challenged the evidence of P.W.16 or the findings in the post-mortem report Ext-7. The learned trial Court has also discussed about the nature of death of the deceased with reference to the evidence of doctor P.W.16 and post-mortem report Ext.7 and came to hold that the death of the deceased was homicidal in nature. After perusing the evidence on record, the post-mortem examination report Ext.7 and the statement of P.W.16 Dr. Rohit Kumar Patel, we are of the view that there is no infirmity in the findings of the learned trial Court regarding the nature of death of the deceased to be homicidal in nature and accordingly we concur with such findings. 6. So far as the place of occurrence is concerned, it is the prosecution case that the occurrence took place at Lopanga Bus Stand which is eighteen kilometers away towards northwest of Katarabaga Police Station in the district of Sambalpur. Apart from the evidence of two eye witnesses i.e. P.W.7 and P.W.8, the evidence of the Investigating Officers (P.W.22 and P.W.20) are very relevant on this aspect. P.W.22 stated to have collected sample earth and blood stained earth from the spot with the assistance of scientific team and seized the same in presence of the witnesses and prepared seizure list Ext.4/1. Ext.4/1 indicates that the place of seizure was Lapanga Bus Stand Chowk just in front of the betel shop of Sanjeet Panda (P.W.1). P.W.20, the I.O. also visited the spot and prepared spot map (Ext.8) which also corroborates the evidence of P.W.22. The learned counsels for the appellants have also not disputed the place of occurrence. Ext.4/1 indicates that the place of seizure was Lapanga Bus Stand Chowk just in front of the betel shop of Sanjeet Panda (P.W.1). P.W.20, the I.O. also visited the spot and prepared spot map (Ext.8) which also corroborates the evidence of P.W.22. The learned counsels for the appellants have also not disputed the place of occurrence. After going through the evidence of these two eye witnesses P.W.7 and P.W.8 and the two Investigating Officers P.W.22 and P.W.20, the spot map Ext.8, We are of the view that prosecution has established that the incident had taken place at Lapanga Bus Stand. 7.The prosecution case in order to establish the complicity of the appellants is mainly based on the evidence of the two eye witnesses P.W.7 Purandhar Behera and P.W.8 Prafulla Kumar Behera, the evidence of doctor P.W.16 and other corroborating evidence. The prosecution case against appellant Pradip Sahoo is somewhat different than other two appellants. Let us first discuss the evidence against appellant Pradip Sahoo and then we will discuss the evidence against the other two appellants. Appellant Pradip Sahoo (i) P.W. 7 has stated that appellant Pradip Sahoo made a blank fire from his revolver and then caught hold of the deceased from his back side and shouted at the other accused persons to kill the deceased by cordoning. Then the accused persons surrounded the deceased and assaulted him by means of weapons which they were holding. P.W.8 has stated that appellant Pradip Sahoo fired into the air from his revolver, caught hold of the deceased from his back side and shouted at the other accused persons to kill the deceased. Then all the accused persons surrounded the deceased and started assaulting him by means of bhujali and gupti. Thus from the evidence of the two witnesses, the specific role attributed to the appellant Pradip Sahoo is that first he made blank fire from his revolver and then catching hold of the deceased from his backside, shouted at the other accused persons to kill the deceased. P.W.8 has stated that when the appellant Pradip was holding the deceased at the time of occurrence, his revolver fell down on the ground. P.W.7 has also stated that while lifting his brother (deceased), he saw one revolver and empty cartridge were lying at the spot. P.W.8 has stated that when the appellant Pradip was holding the deceased at the time of occurrence, his revolver fell down on the ground. P.W.7 has also stated that while lifting his brother (deceased), he saw one revolver and empty cartridge were lying at the spot. P.W.22 stated to have seized one sixer revolver written on it as “Made in Japan” and four numbers of live cartridges on .38 bore and one fired bullet with the khokha (cap) and another cover of sword lying on the spot under seizure list Ext.1. (ii) Mr. Asim Amitav Das, learned counsel for the appellant Pradip Sahoo submitted that in the first information report Ext.5 lodged by one of the eye witnesses P.W.7, there is no mention that the appellant either made any blank fire from his revolver or caught hold of the deceased from his backside and shouted at the other accused persons to kill the deceased. He further contended that even though numbers of witnesses who were having their shops near Lapanga Bus Stand were examined but none of them have stated to have heard any firing sound of revolver. He further contended that the revolver and cartridges having not been produced by the prosecution during trial and the deceased having not sustained any fire arm injury and in view of the ballistic report Ext.14 that the discharge residue of firing were not available in the barrel of the revolver through chemical means, it is difficult to accept that any revolver was used at the time of occurrence. The learned counsel further contended that when the accused persons left the spot with other weapons i.e. sword, bhujali and gupti, it was not expected that they would leave the revolver and cartridges at the spot just to create evidence against themselves. He further contended that the learned trial Court having acquitted the appellants of the charge under Section 25 and 27 of Arms Act and the catching hold of the deceased theory by the appellant Pradip Sahoo as put forth by the prosecution being contrary to the medical evidence, benefit of doubt should be given to the appellant. He further contended that the learned trial Court having acquitted the appellants of the charge under Section 25 and 27 of Arms Act and the catching hold of the deceased theory by the appellant Pradip Sahoo as put forth by the prosecution being contrary to the medical evidence, benefit of doubt should be given to the appellant. He further contended that merely because there are omnibus evidence that appellant Pradip Sahoo came with other co-accused persons to the spot in motorcycles and left the spot with them is not sufficient to convict him under Section 302 IPC with the aid of Section 34 IPC. (iii) The learned counsel for the State, Sk. Zafarulla on the other hand submitted that the active participation of appellant Pradip Sahoo is clearly borne out of the record and it is he who fired the blank shot from the revolver just to create fear in the mind of the crowd who were present in the bus stand so that they can easily commit the crime and escape and due to the catching hold of the deceased by the appellant Pradip Sahoo from backside, it facilitated the other accused persons to assault the deceased mercilessly and therefore he has been rightly convicted by the leaned trial Court. (iv) Before considering the rival contentions of the respective counsels, let us first examine the reasoning of the learned trial Court for acquitting the appellants of the charge under Section 25 (a) and 27 (1) of Arms Act. The learned trial Court has assigned the following reasons:- (a) The prosecution has not produced any fire arm in the course of the trial even though P.W.22 has stated to have seized the revolver and cartridges from the spot in course of his investigation. No explanation has been offered by the prosecution in that respect. (b) The revolver or cartridges have not been recovered from the possession of accused Pradip Sahoo or any other accused persons and it was lying at the spot. (c) If accused Pradip had in possession of the revolver at the time of occurrence, why he did not fire from it to the deceased to kill him. The deceased did not sustain any fire arm injury. (c) If accused Pradip had in possession of the revolver at the time of occurrence, why he did not fire from it to the deceased to kill him. The deceased did not sustain any fire arm injury. (d) If all the accused persons after the assault did not throw any other weapons like sword, bhujali or gupti then how could accused Pradip left his revolver at the spot along with the cartridges when the revolver is a more valuable weapon than sword, bhujali or gupti. (e) The use of fire arm i.e. revolver by the accused Pradip appears to be doubtful and is not free from reasonable doubt. As per P.W.7 and P.W.8, the fire arm was exclusively used by accused Pradip at the time of occurrence and nothing has been stated in this regard by any other witnesses (wrongly written as “by any other accused persons”). (v) It is no doubt true that the F.I.R. Ext.5 does not indicate regarding blank fire made by appellant Pradip Sahoo or catching hold of the deceased by him from the backside or his shouting at the other accused persons to kill the deceased but we cannot forget that the informant P.W.7 is none else than the brother of the deceased who carried the deceased from the spot to Jharsuguda Hospital in a Car where the deceased was declared dead and then after returning from the hospital, he lodged a written report before the police which has been treated as FIR in this case. The occurrence took place on 20.01.2003 at about 10.00 a.m. and the report was lodged at Rengali Police Outpost at about 11.30 a.m. on the very day after P.W.7 returned from Jharsuguda Hospital. In such a situation merely because there are certain omissions relating to the specific overt act played by appellant Pradip Sahoo, keeping in view the state of mind of P.W.7 at that point of time and the time gap between the incident and the lodging of the F.I.R., we are of the view that such non-mention by itself cannot be a ground to discard the prosecution case. (vi) Even though the eye witnesses have stated that there was blank firing from the revolver into the air by appellant Pradip Sahoo prior to the assault but in view of the ballistic report that the discharge residues of firing were not available in its barrel through chemical means, it creates a doubt about the firing from the revolver. The revolver and cartridges were not produced during trial even though those were stated to have been seized from the spot by P.W.22 and sent for chemical examination and ballistic opinion. The seizure of the revolver and the cartridges were made on 20.01.2003 but those were forwarded to the Dy. Director, R.F.S.L. Vide Memo No.891, dated 3.9.2003. There is absolutely no evidence on record as to why there was such an inordinate delay in sending the exhibits for chemical examination and ballistic opinion and where those exhibits were kept and in what condition after its seizure and prior to its sending for chemical examination. (vii) P.W.8 has stated that at the time of occurrence there were many customers present in his betel shop and after hearing the sound of firing, he ran to the spot but again said after hearing the sound of P.W.7, he ran to the spot. In view of such statement of P.W.8, it is difficult to accept that he had seen appellant Pradip Sahoo to have fired into the air from the revolver. Similarly the evidence of P.W.8 that while the appellant Pradip was holding the deceased at the time of occurrence, the revolver fell down on the ground is not corroborated by P.W.7. (viii) Another important aspect which is to be considered is that even though P.W.7 and P.W.8, both have stated that appellant Pradip caught hold of the deceased from his back side and in that position while catching hold of the deceased he shouted at the other accused persons to kill the deceased and then the accused persons assaulted the deceased by different sharp cutting weapons but the postmortem examination report Ext.7 indicates that not only there are injuries on the backside of the deceased but also on the left and right arms. The presence of such injuries on the backside of the deceased falsifies that anybody was holding him from the backside at least throughout the assault. The presence of such injuries on the backside of the deceased falsifies that anybody was holding him from the backside at least throughout the assault. The two eye witnesses have not stated that at the first instance the deceased was caught hold of by appellant Pradip Sahoo from the backside and then after some assault, he was left out and then further assault took place. The injuries on the two arms more or less appear to be defensive injuries. The extensive injuries on different parts of the deceased suggest that nobody was holding him at the time of assault. Thus the medical evidence creates doubt on the ocular testimony regarding the manner of involvement of appellant Pradip in the assault of the deceased. In the case of B.N. Singh –V- State of Gujarat reported in A.IR. 1990 SC 1628, it is held as follows:- “9…………..All these witnesses have stated that they heard the shouts and when they went to the place of occurrence, they saw that accused Nos.2, 3 and 6 caught hold of the victim and that accused Nos.1, 4 and 5 dealt knives blows all over the body, one of them on the back and others on the front. The doctor P.W.13 found eleven injuries all over the body namely on both sides of chest, clavicular region, hypochondrial region, abdomen, thighs, scapula and paravertebral region. If really three persons were holding the deceased in the manner spoken to by these interested witnesses, the other persons armed with big knifes could not have indiscriminately caused the injuries on all parts of the body in that manner. It could not have been possible for them to cause injuries without causing hurt to the person so holding. Therefore, we are not prepared to accept the prosecution version that accused nos. 2, 3 and 6 caught hold of the deceased and accused nos. 1, 4 and 5 inflicted the injuries in that manner….” In the case of Prem Singh -V- State (Delhi Admn.) reported in 1995 (I) Crimes 282 , it is held as follows:- “12. In view of the above position of the injuries found Dr. 2, 3 and 6 caught hold of the deceased and accused nos. 1, 4 and 5 inflicted the injuries in that manner….” In the case of Prem Singh -V- State (Delhi Admn.) reported in 1995 (I) Crimes 282 , it is held as follows:- “12. In view of the above position of the injuries found Dr. L.T. Ramani, the claim of this witness, P.W.7 that this appellant Prem Singh had caught hold of the deceased Jagatbir Singh from his back and that absconding accused Lakshmi Kant Tiwari had given him blows by his knife does not seem to be at all probable because five incised wounds were found by Dr. Ramani on the backside of the deceased.” The learned trial Court has observed that possibility of deceased being first attacked from the front side and then being left by appellant Pradip, he was attacked from the backside cannot be ruled out. In absence of any such version made by either P.W.7 or P.W.8, it is very difficult to accept such findings of the learned trial Court. (ix) When specific overt act attributed to appellant Pradip Sahoo is found to be not acceptable, it is difficult to convict him on the omnibus nature of evidence that he came with other co-accused persons in motorcycles and left with them. (x) Thus analyzing the evidence of the two eye witnesses P.W.7 and P.W.8 and the evidence of the doctor P.W.16 who conducted post-mortem examination so also the other surrounding circumstances, it is very difficult to accept the complicity of the appellant Pradip Sahoo in the crime. Therefore, we think it proper to give him benefit of doubt. Accordingly, Criminal Appeal No.253 of 2010 filed by appellant Pradip Sahoo is allowed and he is acquitted of the charge under Section 302/34 Indian Penal Code. Appellants Sanjib Sahoo and Tukun @ Premananda Sahoo (i) The learned counsels for rest of the two appellants Mr. Debasis Panda and Basudev Pujari submitted that P.W.7 is a chance witness and no reason has been assigned by him as to why he had come to the bus stand at the time of occurrence and therefore the evidence of P.W.7 who is also a highly interested witness should be discarded. P.W.7 has stated that on 20.01.2003 at 9.00 a.m. he had been to Lapanga Bus Stand and was standing in the Bus Stand when he saw the incident. P.W.7 has stated that on 20.01.2003 at 9.00 a.m. he had been to Lapanga Bus Stand and was standing in the Bus Stand when he saw the incident. According to him, he was a resident of Lapanga village having 20 to 25 acres of landed properties in that village and at the time of occurrence he was residing in his house. He has further stated that the Bus Stand situates on the National Highway having a four lane square, one connecting to village Lapanga, another to Jharsuguda and another to Railway Station and the last one connecting to Sambalpur through Rengali. P.W.8 also says about the presence of P.W.7 at the spot. When P.W.7 belongs to that area and the Bus Stand i.e. Lapanga Bus Stand is close to his village and situates close to the four lane square on the National Highway, his presence in the Bus Stand cannot be said to be totally unexpected. In respect of an incident which takes place in a public place that to on a public road, the passersby are the best witnesses and their evidence cannot be discarded on the ground of their being chance witnesses. Therefore the criticism leveled by the learned counsels for the appellants that P.W.7 is a chance witness is wholly unmerited in as much as according to our view the incident having taken place in a public place like Lapanga Bus Stand, the presence of P.W.7 who is a resident of nearby area cannot be doubted. In the case of Dargahi -V- State of U.P. reported in A.I.R. 1973 SC 2695, it is held as follows:- “12…………The submission made on behalf of appellants that Gur Saran and Behari are chance witnesses and that the Court should not therefore place much reliance upon their testimony, in our opinion is not well-founded. The occurrence took place on the road going to Fetehpur. In the very nature of things the occurrence could have been witnessed by the persons going on that road. In a sense any one going on the road in question at the time of occurrence would be a chance witness but that fact by itself would not be enough to discredit his testimony.” In the case of Ranapratap –V- State of Hariyana reported in A.I.R.1983 SC 680, it is held as follows:- “3………….We do not understand the expression ‘chance witnesses’. Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a brothel, prostitutes and paramours are natural witnesses. If murder is committed in a street, only passersby will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere ‘chance witnesses’. The expression ‘chance witnesses’ is borrowed from countries where every man’s home is considered castle and everyone must have an explanation for his presence elsewhere or in another man’s castle. It is a most unsuitable expression in a country where people are less formal and more casual. To discard the evidence of street hawkers and street vendors on the ground that they are ‘chance witnesses’, even where murder is committed in a street, is to abandon good sense and take too shallow a view of the evidence. (ii) The learned counsels for the appellants further contended that there was absolutely no motive on the part of the appellants to kill the deceased. P.W.7 has stated that there was prior enmity between the deceased and the accused persons as the deceased was a supporter of P.W.9 Kiran Behera (who is another brother of P.W.7 and the deceased). He further stated that P.W.9 was contesting the last Sarpanch Election against the father of appellant Sanjib Sahoo which was won by P.W.9. P.W.9 has also stated about such political rivalry between the parties. Thus it cannot be said that the prosecution has established no motive whatsoever for the commission of the crime. In the case of Nathuni Yadav –V- State of Bihar reported in 1998 Supreme Court Cases (Criminal) 992, it is held as follows:- “17……Motive for doing a criminal act generally a difficult area for prosecution. One cannot normally see into the mind of another. Motive is the emotion which impels a man to do a particular act. Such impelling cause need not necessarily be proportionally grave to do grave crimes. Many a murders have been committed without any known or prominent motive. It is quite possible that the aforesaid impelling factor would remain undiscoverable.” In the case of Baitullah and anr. Motive is the emotion which impels a man to do a particular act. Such impelling cause need not necessarily be proportionally grave to do grave crimes. Many a murders have been committed without any known or prominent motive. It is quite possible that the aforesaid impelling factor would remain undiscoverable.” In the case of Baitullah and anr. –V- State of U.P. reported in 1997 (4) Crimes 90 (SC), it is held as follows:- “14……………where a murderous assault has been established by clear ocular evidence, motive pales into insignificance…..” In the case of Bhagwan Swarup –V- State of Maharashtra reported in AIR 1965 SC 682 , it is held as follows:- “12…………Motive is not an ingredient of an offence. The proof of motive helps a Court in coming to a correct conclusion when there is no direct evidence. Where there is direct evidence for implicating an accused in an offence, the absence of proof of motive is not material.” Thus we are of the view that the prosecution has established the previous political rivalry between the parties as the motive behind the commission of crime through the evidence of P.W.7 and P.W.9. Moreover this case is a case of direct evidence and therefore whatever motive has been established by the prosecution is sufficient. (iii) The learned counsels further submitted that when three of the co-accused persons have been acquitted by the learned trial Court, the self-same set of evidence should not have been accepted to convict the appellant. The learned trial Court has discussed the evidence relating to co-accused Munu Mehar, Rajesh Sahu and Umesh Bagarty in paragraph-30 of the judgment and came to hold that their identification is seriously doubtful and has not been established at all. He has further held in paragraph-14 that none of the prosecution witnesses has identified accused Munu Meher, Rajesh Sahu and Umesh Bagarty in the dock in course of the trial. P.W.7 and P.W.8 who are the eye-witnesses to the occurrence have stated that appellant Pradip, Sanjib and Tukun had come along with three unknown persons. P.W.7 has stated that he had never seen the three accused persons, namely, Munu, Rajesh and Umesh and further stated that those three accused persons had worn monkey caps on their faces. P.W.8 has stated that three unknown persons had come along with accused Pradip, Tukuna and Sanjib at the time of occurrence. P.W.7 has stated that he had never seen the three accused persons, namely, Munu, Rajesh and Umesh and further stated that those three accused persons had worn monkey caps on their faces. P.W.8 has stated that three unknown persons had come along with accused Pradip, Tukuna and Sanjib at the time of occurrence. No T.I. Parade has been conducted in the case. The learned trial Court therefore considering the materials brought on record held that the identification of accused Munu Meher, Rajesh Sahu and Umesh Bagarti is seriously doubtful and their presence at the time of occurrence is not established at all by the prosecution. It appears that very cogent reasons have been assigned for the acquittal of the three co-accused persons and therefore the contention of the learned counsels for the appellants that evidence of P.W.7 and P.W.8 should not be accepted as co-accused persons have been acquitted is not at all acceptable. (iv) The learned counsels for the appellants further contended that it is the case of the prosecution that six accused persons participated in the assault of the deceased and they were armed with sword, bhujali and gupti and after cordoning the deceased, all the accused persons assaulted him. It is further contended that when there is no specification as to who was holding which weapon at the time of occurrence, when three of the co-accused persons have been acquitted, it would not be proper to convict the appellants for committing the murder of the deceased. We are not able to accept such contentions raised by the learned counsels for the appellants. The post mortem report indicates that the deceased was mercilessly assaulted by sharp cutting weapons and there are extensive injuries on his head, face, neck, chest, left arm and right arm. In such a situation, it is very difficult to expect from the witnesses to say which accused was holding which weapon and which accused has assaulted on which part of the body or how many blows has been given by each of the accused. In a case of this nature, it is difficult to expect such type of statements from the eye witnesses when the accused persons were assaulting together by different weapons. In a case of this nature, it is difficult to expect such type of statements from the eye witnesses when the accused persons were assaulting together by different weapons. (v) The learned counsels for the appellants further urged that when independent witnesses have not supported the prosecution case, the evidence of interested witnesses like P.W.7 and P.W.8 should not be accepted to base an order of conviction. No doubt P.W.1, P.W.2, P.W.3, P.W.5 who as per the statements recorded under Section 161 Cr.P.C. were stated to be eye witnesses to the occurrence have not supported the prosecution case during trial for which all of them have been declared hostile and cross-examined by the prosecution. There may be many a reasons for these witnesses not to support the prosecution case but that cannot be a ground to discard the evidence of the two eye witnesses P.W.7 and P.W.8 on the ground that they are interested witnesses being related to the deceased. P.W.8 was having a betel shop at Lapanga Bus Stand and according to him at the time of occurrence, he was present in his betel shop and has seen the occurrence. We have carefully gone through the evidence of P.W.7 and P.W.8. We found that not only their presence at the spot has been established by the prosecution but their evidence appears to be clear, clinching and trustworthy and therefore such evidence cannot be discarded merely because they are related to the deceased. Related witnesses are not necessarily false witnesses. Unless their evidence suffers from serious infirmity or raises considerable doubt in the mind of the Court, it would not be proper to discard their evidence straightaway. ‘Related’ is not equivalent to ‘interested’. A witness may be called ‘interested’ only when he or she derives some benefits for the result of litigation. Close relatives of the deceased are most reluctant to spare the real assailants and falsely mention the names of other persons. The close relationship of the witnesses to the deceased is no ground for not acting upon their testimony. If the evidence is otherwise found to be reliable after close scrutiny, it can be acted upon. Thus we are not able to accept the contention of the learned counsels for the appellants to discard the evidence of P.W.7 and P.W.8 on the ground of their relationship with the deceased. If the evidence is otherwise found to be reliable after close scrutiny, it can be acted upon. Thus we are not able to accept the contention of the learned counsels for the appellants to discard the evidence of P.W.7 and P.W.8 on the ground of their relationship with the deceased. (vi) The learned counsels further submitted that when P.W.8 has stated in the cross-examination that when he reached at the spot, the accused persons had already assaulted the deceased, he cannot said to be eye witness to the occurrence. P.W.8 had a betel shop at Lapanga Bazar and he has stated that at the time of occurrence he was present in his betel shop and at the time of occurrence many customers were also present. He has further stated that after hearing the sound of firing, he ran to the spot. Therefore the evidence of P.W.8 has to be read as a whole and a conclusion cannot be derived from one line in the cross-examination bereft of other statements made by him. The particular sentence in the cross-examination was referred to by the learned counsel for the appellants if read in the context of his entire evidence, it would indicate that he was in his betel shop at the time of incident and then his attention was diverted to the spot either due to firing sound and or due to shout of P.W.7 and then he started running to the spot and by the time he reached at the spot, the assault was over. Then the accused persons gave threat to him as well as to P.W.7 and left the spot in their motorcycles. Thus it is difficult accept of the contentions of the learned counsels for the appellants that P.W.8 is not an eye witness to the occurrence. (vii) It is urged by the learned counsel for appellant Tukun @ Premananda Sahu that some of the questions put to appellant Tukun are irrelevant questions and some questions are unnecessary lengthy. The learned counsels brought to our attention to questions no.20, 23, 29, 47 and 52. The object of Section 313 Cr.P.C. is to afford an opportunity to the accused personally to explain any circumstance appearing in the evidence against him at the trial. The examination of an accused is not an empty formality. The substance of accusation is brought to the notice of the accused by such examination. The object of Section 313 Cr.P.C. is to afford an opportunity to the accused personally to explain any circumstance appearing in the evidence against him at the trial. The examination of an accused is not an empty formality. The substance of accusation is brought to the notice of the accused by such examination. We have gone through the questions pointed to us by the learned counsel for appellants Tukun @ Premananda Sahu. We cannot accede to the contentions raised by the learned counsel for the appellant that merely because of some questions put to the appellant, the impugned judgment and order of conviction is vitiated in the eye of law. (viii) The evidence of P.W.7 and P.W.8 also gets corroboration from the evidence of P.W.13 who has seen the appellants leaving in a motorcycle so also from the medical evidence adduced by the prosecution through P.W.16. Thus we are of the view that the prosecution has established its case beyond all reasonable doubt against appellants Sanjib Sahoo and Tukun @ Premananda Sahoo. Therefore, the impugned judgment and order of conviction so far as appellants Sanjib Sahoo and Tukun @ Premananda Sahoo is concerned, is hereby confirmed. 8. In the result, Criminal Appeal No.253 of 2010 filed by appellant Pradip Sahoo is allowed. The impugned judgment and order of conviction and sentence passed thereunder against the appellant Pradip Sahoo is hereby set aside and he is acquitted of the charge under Section 302/34 IPC. The appellant is on bail by virtue of the order of this Court. He is discharged from liability of his bail bond. The personal and surety bond stand cancelled. Criminal Appeal No.302 of 2010 filed by appellants Sanjib Sahoo and Tukun @ Premananda Sahoo is dismissed and the impugned judgment and order of conviction in respect of these two appellants under Section 302/34 IPC and sentence to undergo rigorous imprisonment for life and to pay fine of Rs.1,000/-, in default of payment of fine to undergo further rigorous imprisonment for a period of one month each as awarded by the learned trial Court is hereby confirmed. The appellants Sanjib Sahoo and Tukun @ Premananda Sahoo are on bail by virtue of the order of this Court. The appellants Sanjib Sahoo and Tukun @ Premananda Sahoo are on bail by virtue of the order of this Court. They are directed to surrender forthwith before the learned trial Court to serve out the sentence awarded by the trial Court failing which the learned trial Court shall proceed against them in accordance with law. Lower Court records with a copy of this judgment be sent down to the learned trial Court forthwith for information and necessary action. VINOD PRASAD, J. I agree. Ordered accordingly.