JUDGMENT : Dr. Durga Prasanna Choudhury, J. - The captioned appeal challenges the judgment and order of conviction and sentence dated 23.06.1992 passed by learned Addl. Sessions Judge, Bhadrak in S.T. Case No. 48/10 of 1992, whereby appellant No. 1 was sentenced to undergo rigorous imprisonment for three years after being convicted under section 324 of the I.P.C. and appellant No. 2 was sentenced to undergo rigorous imprisonment for one year after being convicted under section 323 of the I.P.C. In this judgment, appellant No. 1 and appellant No. 2 will be addressed as accused Benudhar and accused Rabindra respectively. FACTS : 2. The factual matrix leading to the case of the prosecution is that on 03.07.1991 at 7.30 P.M., the accused persons, including the present appellants, being armed with deadly weapons, namely, tenta, sword, lathi and by forming an unlawful assembly reached in front of the house of informant Gorachand Mahalik. They abused the informant in obscene language. When the accused persons attempted to assault the informant and his brother Pagal Mahalik, the latter tried to flee away from the verandah of their house; but accused Benudhar assaulted by tenta on the left side abdomen of the informant causing bleeding injury on his person. It is alleged, inter alia, that accused Kalandi assaulted by sword to the brother of the informant. Accused Benudhar again assaulted by tenta to Pagal Mahalik causing bleeding injury on his person. Hearing cry of the injured persons, Jemamani Mahalik, the sister-in-law of the informant, came to the spot; but accused Rabindra assaulted by lathi on the right hand of Jemamani causing fracture injury on her person. When the injured persons made hullah for help, the accused persons fled away from the spot. While going away from the spot, they threatened the informant and his brother to kill if they would inform the matter to police. Thereafter, F.I.R. was lodged. During investigation, witnesses were examined, injured persons were sent for medical examination, police visited the spot and prepared spot map. In course of investigation, police also seized one tenta, the weapon of offence, on production by Gramarakhi. The Investigating Officer sent the same to doctor for opinion and the opinion was also received by police. After completion of investigation, charge-sheet was submitted against the accused persons. Hence the case of prosecution. 3. Plea of the accused persons, as revealed from the cross-examination made to P.Ws. The Investigating Officer sent the same to doctor for opinion and the opinion was also received by police. After completion of investigation, charge-sheet was submitted against the accused persons. Hence the case of prosecution. 3. Plea of the accused persons, as revealed from the cross-examination made to P.Ws. and from their statements recorded under section 313 of the Cr. P.C., is that there was previous enmity between the parties for which a police case has been filed against the accused persons. On the other hand, they squarely denied the charges levelled against them. 4. Learned Trial Court considered the oral evidence of eight witnesses examined from the side of prosecution, so also the documents submitted by prosecution and found accused Benudhar and Rabindra guilty under sections 324 and 323 of the I.P.C. respectively and acquitted rest of the accused persons of the charges levelled against them. It is profitable to mention here that learned Trial Court framed charges under sections 148/307/34 of the I.P.C. against all the nine accused persons, including the present appellants. SUBMISSIONS : 5. Learned counsel appearing for the appellants submitted that the order of conviction and sentence passed against the appellants is illegal and erroneous. Learned trial Court has erred in law by reposing confidence on the evidence of the Investigating Officer on accepting the seizure list prepared by him being anti-dated. He further submitted that learned trial Court has lost sight of sequence of events, as given in the F.I.R., and place of assault, as stated by P.W.1, which is not matching with the F.I.R. Learned trial Court has erred in law by relying upon the evidences of P.Ws. 1 to 4, who are none other than the family members of the informant, including the injured, who are highly interested and partisan to the family of the accused. According to him, learned trial Court has acted illegally by not rejecting the evidences of P.Ws. 1 to 4, whose evidence are full of conjectures and surmises. Submission was also advanced that learned trial Court has erred in law by not taking into consideration the material discrepancies in the evidence on record. When prosecution has not examined the material independent witnesses, learned trial Court should have rejected its case on that score alone. 1 to 4, whose evidence are full of conjectures and surmises. Submission was also advanced that learned trial Court has erred in law by not taking into consideration the material discrepancies in the evidence on record. When prosecution has not examined the material independent witnesses, learned trial Court should have rejected its case on that score alone. Further submission was made by learned counsel for the appellants that accused Benudhar was 21 years old and the age of accused Rabindra was 17 years on the date of occurrence for which learned trial Court should have considered the case of the appellants for extending the beneficial provisions of the Probation of Offenders Act, having regard to the facts and circumstances of the case even if an order of conviction is recorded. However, he challenged the entire order of conviction and sentence passed against the appellants and submitted to set aside the same and acquit the appellants. 6. On the contrary, learned Addl. Standing Counsel appearing for the State submitted that the judgment passed by learned Court below is legally correct. According to him, learned trial Court has rightly appreciated the evidence of prosecution witnesses in proper prospective and after separating the grain from the chaff. He further submitted that learned trial Court has appropriately convicted the appellants under the respective offences and also proportionately sentenced them to undergo the imprisonment, as stated above. It was his submission that the order of conviction and sentence passed by learned trial Court is justified and the appeal is liable for dismissal. DISCUSSIONS : 7. Out of eight witnesses examined by prosecution, P.W.1 is injured; P.W.2 is another injured and sister-in-law of P.W.1; P.W.3 is brother of P.W.1 and also an injured; P.W.4 is elder brother of P.W.1 and husband of P.W. 2; P.Ws. 5 and 6 are outsiders; P.W.7 is doctor; and P.W.8 is Investigating Officer. Defence has not examined any witness. 8. The contention of learned counsel for the appellants is that P.Ws. 1 to 4 being related to each other, their evidence should not be accepted. On the other hand, learned Addl. Standing Counsel submitted that evidence of such witnesses cannot be outright rejected. Their Lordships of the Hon'ble Apex Court in the decisions reported in Rizan and Another Vs. State of Chhatisgarh, through The Chief Secretary, Govt. 1 to 4 being related to each other, their evidence should not be accepted. On the other hand, learned Addl. Standing Counsel submitted that evidence of such witnesses cannot be outright rejected. Their Lordships of the Hon'ble Apex Court in the decisions reported in Rizan and Another Vs. State of Chhatisgarh, through The Chief Secretary, Govt. of Chhatisgarh, Raipur, Chhatisgarh, AIR 2003 SC 976 : (2003) CriLJ 1226 : (2003) 2 JT 191 : (2003) 1 SCALE 357 : (2003) 2 SCC 661 : (2003) AIRSCW 469 : (2004) AIRSCW 6893 : (2003) 4 Supreme 74 : (2003) 1 Supreme 890 ; State of Punjab Vs. Karnail Singh, AIR 2003 SC 3609 : (2003) CriLJ 3892 : (2003) 7 JT 543 : (2003) 6 SCALE 434 : (2003) 11 SCC 271 : (2003) 2 SCR 593 Supp ; Surinder Singh and Another Vs. State of U.P., AIR 2003 SC 3811 : (2004) 97 CLT 611 : (2003) CriLJ 4446 : (2003) 1 JT 226 Supp : (2003) 7 SCALE 184 : (2003) 10 SCC 26 : (2003) 3 SCR 401 Supp : (2004) 1 UJ 197 : (2003) AIRSCW 4364 : (2003) 7 Supreme 562 ; and Kalegura Padma Rao and Another Vs. The State of A.P., rep. by the Public Prosecutor, AIR 2007 SC 1299 : (2007) 3 JT 513 : (2007) 3 SCALE 209 : (2007) 12 SCC 48 : (2007) 2 SCR 781 : (2007) AIRSCW 1447 : (2007) 2 Supreme 551 have been pleased to observe that close relatives of the deceased are unlikely to falsely implicate anyone. Sometimes, such relationships are guarantee of truth. When feelings run high on enmity, prudence may compel the Court to seek corroboration. But, general statement in cross-examination or bald assertions of relationship when questioned is not sufficient to make anyone interested (See Dalip Singh and Others Vs. State of Punjab, AIR 1953 SC 364 : (1954) 1 SCR 145 . 9. It is also the settled principle of law that evidence of eye witnesses, who are relatives of the victim, has to be considered from the point of view of trustworthiness. Credibility and relationship have to be tested, with reference to the way they fared in cross-examination and the nature of impression created in the mind of the Court. 9. It is also the settled principle of law that evidence of eye witnesses, who are relatives of the victim, has to be considered from the point of view of trustworthiness. Credibility and relationship have to be tested, with reference to the way they fared in cross-examination and the nature of impression created in the mind of the Court. If the presence of witnesses at the scene at the time of occurrence is proved or considered to be natural and their evidence is found to be true in the light of surrounding circumstances and probabilities of the case, it can provide a good basis for conviction. Strained relationship with the accused of eye witnesses, closed related to the deceased, cannot be an yardstick to test their credibility (See State of Rajasthan Vs. Smt. Kalki and Another, AIR 1981 SC 1390 : (1981) CriLJ 1012 : (1981) 1 SCALE 645 : (1981) 2 SCC 752 : (1981) SCC(Cri) 593 : (1981) 3 SCR 504 . On the other hand, their evidence cannot be discarded in the absence of any infirmity in their evidence (See Dharam Pal and Others Vs. State of U.P., AIR 2008 SC 920 : (2008) CLT 371 : (2008) CriLJ 1016 : (2008) 1 JT 172 : (2008) 1 SCALE 9 : (1981) 1 SCALE 839 : (2008) 12 SCC 208 : (2008) AIRSCW 357 : (2008) 1 Supreme 242 ; Ashok Kumar Chaudhary and Others Vs. State of Bihar, AIR 2008 SC 2436 : (2008) CriLJ 3030 : (2008) 6 JT 307 : (2008) 12 SCC 173 : (2008) AIRSCW 3739 . 10. From the aforesaid legal positions, as ascertained in different authorities of the Hon'ble Apex Court, I am of the view that dubbing a witness as interested, if related to the injured, cannot be sole ground to reject the prosecution case; but, on the other hand, as per the decisions noted above, his evidence requires deeper scrutiny. Now, adverting to the case at hand, let me examine the evidence of each witness to arrive at a just conclusion. 11. It is revealed from the evidence of P.W.1 that while he and his brother were sitting on the verandah, he found that the accused persons teased his sister-in-law, who was returning with water. On her protest, accused Rabindra assaulted her by means of a stick. 11. It is revealed from the evidence of P.W.1 that while he and his brother were sitting on the verandah, he found that the accused persons teased his sister-in-law, who was returning with water. On her protest, accused Rabindra assaulted her by means of a stick. Further, it is reveled from his evidence that all the accused persons came being armed with tenta, sticks and thenga. When he and his brother tried to escape from the accused persons, accused Benudhar assaulted by tenta on the left side of his chest causing bleeding injury. According to him, his brother Pagal was also assaulted by accused Benudhar by means of tenta. He stated to have lodged F.I.R. vide Ext.1. During vivid cross-examination, his evidence remained unblemished. At the same time, it is elicited during cross-examination that he had seen the assault on his sister-in-law; but, in para-7 of cross-examination, he expressed his ignorance as to on which place, P.W.3 was assaulted. Defence has tried to confront the contents of the F.I.R. to which P.W.1 has clarified that the scribe wrote the FI.R. as per his instructions; but he could not say whether all the instructions were reduced into writing. It is quite natural for an injured not to wait for verification of the F.I.R. after the same was scribed as per his instructions, because an injured with bleeding injury has hardly any mind of verifying the F.I.R. Moreover, F.I.R. is not an encyclopaedia - it is only lodged to initiate the investigation. Be that as it may, defence could not elicit any major discrepancies between the F.I.R. and his statement. However, in the F.I.R., it is stated that while P.W.2 was coming to protest the action of the accused persons, she was assaulted by accused Rabindra, whereas P.W.1 has explained that while he and his brother were sitting on the verandah, they saw that all the accused persons abused her in obscene language and on protest, accused Rabindra assaulted P.W.2 by means of a stick. So, the sequence of events, as depicted in the F.I.R. and disclosed by P.W.1 so far as assault on P.W.2 is concerned, are contradictory to each other. Moreover, P.W.1 in cross-examination has categorically stated that he was assaulted subsequent to Jemamani (P.W.2). But, at the same time, he has admitted that he has not marked whether glass bangles of P.W.2 were broken. Moreover, P.W.1 in cross-examination has categorically stated that he was assaulted subsequent to Jemamani (P.W.2). But, at the same time, he has admitted that he has not marked whether glass bangles of P.W.2 were broken. Thus, the statement of P.W.1, after proper scrutiny, is found to be consistent and clear so far as assault by accused Benudhar on his person is concerned; but, at the same time, his evidence is not cogent and creditworthy to prove the assault on P.Ws. 2 and 3. 12. P.W.2 has revealed that while she was returning after collecting water from the well, the accused persons abused her in filthy language to which she protested. According to her, accused Rabindra assaulted her two to three times by means of a stick for which she sustained injury on her right wrist. Her husband took her to their house. She admitted to have not seen the assault on her brother-in-law. In cross-examination, at para-3, she admitted that accused Rabindra assaulted on her right hand with all force and she received the stick blow on her right hand after it slipped from her shoulder. She stated to have sustained bleeding injury on her hand as glass bangles were broken. She has not stated as to what type of injuries she sustained on her right hand due to assault by stick, except bleeding injury due to damage of glass bangles. On the other hand, she has not clarified as to the nature of injuries sustained after having received the forceful stick blow from accused Rabindra. Thus, the statement of P.W.2 is not clear and consistent to prove the nature of injuries sustained by her due to the assault by accused Rabindra. On the other hand, she has categorically stated to have not seen the assault on other injured persons. 13. P.W.3, who is another injured, stated that while his sister-in-law was returning, the accused persons abused her. On protest, accused Rabindra assaulted P.W.2 with two stick blows for which she fell down and taken to her house. At the same time, he stated that the accused persons being armed with tenta, sword and sticks came there. Accused Benudhar stabbed informant Gorachand Mahalik by means of tenta and the said accused also stabbed him (P.W.3) by means of tenta. In cross-examination, he stated that first he was assaulted by accused Benudhar and, thereafter, accused Kalandi assaulted him. At the same time, he stated that the accused persons being armed with tenta, sword and sticks came there. Accused Benudhar stabbed informant Gorachand Mahalik by means of tenta and the said accused also stabbed him (P.W.3) by means of tenta. In cross-examination, he stated that first he was assaulted by accused Benudhar and, thereafter, accused Kalandi assaulted him. He also clarified that P.W.1 was assaulted prior to the assault received by him. In cross-examination, he also categorically stated that accused Benudhar stabbed him once by tenta. He admitted to have sustained bleeding injury on his person. In para-5, he clearly stated that accused Benudhar stabbed by means of tenta on his left side belly, shoulder and leg. The evidence of P.W.3 has got self-contradictory statement as to number of tenta blow he received. But, such minor discrepancy cannot be counted much because an injured is not supposed to count the number of blows while being assaulted. It requires only corroboration. On scrutiny of the evidence of this witness, it is found that he being injured and brother of P.W.1 has categorically corroborated the evidence of P.W.1 as to the assault by accused Benudhar on the persons of P.Ws. 1 and 3. At the same time, his evidence is not clear as to what happened to P.W.2 on the assault made by accused Rabindra by stick. In para-5 of cross-examination, denying the suggestion of defence, he stated to have stated before police that P.W.2 fell down and was carried by her husband. In fact, P.W.8 denied about such statement of P.W.3 before him. So, the assault by accused Rabindra on the person of P.W.2 and falling of P.W.2 on the ground are found as contradictions in the evidence of P.W.3. So, the evidence of P.W.3 so far as assault on P.W.2 and sustaining injury by her is not credible one, even if he is a relative of P.W.2. Thus, after scrutiny, the evidence of P.W.3 remains consistent and clear, as observed earlier, that he has seen the assault on P.W.1 by accused Benudhar causing stab injury on his person (P.W.1) and also sustaining stab injuries on his person having received the same from said accused Benudhar by means of tenta. 14. P.W.4, who is the husband of P.W.2, stated that while he along with P.Ws. 14. P.W.4, who is the husband of P.W.2, stated that while he along with P.Ws. 1 and 3 were sitting on the verandah, they saw P.W.2 returning after collecting water from the well. But, all the accused persons abused her in filthy language. On her protest, accused Rabindra assaulted by means of stick on her right hand for which she fell down. He took P.W.2 to their house. He further revealed that accused Benudhar assaulted by tenta to P.Ws. 1 and 3 causing bleeding injuries on their persons. He clearly stated that P.Ws. 1 and 3 were assaulted after he left his wife in his house. But, at para-7 of cross-examination about the weapons each and every accused was holding, he explained that accused Benudhar was holding a tenta, accused Kalandi was holding a sword, accused Rabindra and Madhusudan were carrying stones and other accused persons were holding lathies. When there was no lathi held by accused Rabindra, it is not known how the said accused assaulted his wife (P.W.2) by lathi. But, in para-9 of cross- examination, he has categorically stated that he has seen the tenta used. The statement of P.W.4 also does not disclose if P.W.2 has sustained any injury or any of her glass bangles was damaged. So, the evidence of P.W.4 is not clear and cogent to prove the assault by accused Rabindra to his wife by lathi causing injury on her person. On the other hand, the evidence of P.W.4 is very clear, cogent and above reproach to prove that accused Benudhar assaulted P.Ws. 1 and 3 by tenta causing bleeding injuries on their persons and defence could not shake the evidence of P.W.4 well in this regard. Even if P.W.4 is the husband of P.W.2 and brother of P.Ws. 1 and 3, after being properly scrutinized stands to the test and has corroborated the prosecution case to the extent, as discussed above. 15. P.W.5 happens to be a post-occurrence witness because in cross-examination, he revealed that when he reached, he saw injured Gorachand (P.W.1) and Pagal (P.W.3) in an injured condition on the ground. His evidence lends corroboration as to the injuries sustained by P.Ws. 1 and 3. 16. P.W.6, who is an outsider, revealed that after hearing hullah, they came to outside and he saw that while P.Ws. His evidence lends corroboration as to the injuries sustained by P.Ws. 1 and 3. 16. P.W.6, who is an outsider, revealed that after hearing hullah, they came to outside and he saw that while P.Ws. 1 and 3 were trying to escape, accused Benudhar stabbed them for which they fell down on the ground and the accused persons left the spot. In cross-examination, he categorically stated that he had seen the occurrence, which is ten cubits away from the spot. In para-3, he categorically stated that when he reached, P.Ws. 1 and 3 were sitting on the verandah. Accused Benudhar was holding a tenta and others were holding lathi. He categorically revealed in cross-examination at para-4 that P.W.1 was assaulted near Pindha and P.W.3 was assaulted when he went to rescue P.W.1. It appears that defence has failed to shake the evidence of P.W.6 well. At the same time, the evidence of P.W.6 does not disclose any assault by accused Rabindra to P.W.2. Defence has tried to bring the relationship of P.W.6 with the injured persons, but failed in its attempt. On the other hand, the evidence of P.W.6 is clear, cogent and consistent to prove the assault by accused Benudhar by means of tenta to the persons of P.Ws. 1 and 3, who received bleeding injuries thereby. So, the evidence of P.W.6 amply corroborates the evidence of P.Ws. 1 and 3 as to causing injuries to their persons by means of tenta used by accused Benudhar. 17. P.W.7, who is the doctor, has stated that on 03.07.1991, on police requisition, she examined P.W.1 and found the following injury : "i) Stab wound elliptical in shape with two clean cut margins one of which partially ragged, meeting at two sharp angles, each 4 cm in length, 3 cm in breadth and 3.2 cm in depth upto the upper and superficial surface of ninth intercontinental muscle, present on left lateral surface of chest wall on 9th instercostal space 6 cm lateral to midline." According to her, the wound was simple in nature caused by sharp pointed cutting weapon. She proved the injury report vide Ext.3. She further stated that on the same day, on police requisition, she examined P.W.3 and found the following injuries: "i) Abrasion 4 cm x 3 cm on left suprascapular region over head of humerous. She proved the injury report vide Ext.3. She further stated that on the same day, on police requisition, she examined P.W.3 and found the following injuries: "i) Abrasion 4 cm x 3 cm on left suprascapular region over head of humerous. ii) Abrasion 1.2 cm x 0.5 cm on middle of dorsum of right little finger. iii) Stab wound triangular in shape with two clean cut edges, one of the edge is sharp and the other is slightly ragged out and have two sharp angles. Length - 1.2 cm and 1.2 cm. Breadth - 2 cm with a depth of 4.5 cm present on left upper abdominal wall in the middle. Depth upto the upper end of left rectus sheath. iv) Incised wounds conical in shape 3 cm x 0.5 cm bone depth of each meeting at the apex with a skin flap hanging downwards on size lateral malleolus of left ankle joint." According to P.W.7, all the injuries on P.W.3 were simple in nature and injury Nos. (i) and (ii) were caused by hard and blunt object; but injury Nos. (iii) and (iv) might have been caused by sharp cutting weapon. She categorically stated in para-4 that injury No. (iii) on the person of P.W.3 must have been caused by a tenta. She proved the injury report vide Ext.4. She further revealed that she examined P.W.2 on police requisition and found one abrasion 1 cm x 1 cm on dorsum of lower end of right radius bone, which was simple in nature. She proved the injury report vide Ext.5. In cross-examination in para-7, she stated that P.W.2 could have sustained more severe injury had there been infliction of blows with a lot of force. As it appears from the evidence of P.W.2, she was assaulted by accused Rabindra with lot of force and her glass bangles were damaged. There was no such bleeding found by the doctor, except a simple abrasion. So, the doctor's evidence does not tally with the injured so far as the nature of injury, the kind of weapon used and the manner of assault on the person of P.W.2. At the same time, the doctor has clarified in para-8 of cross-examination that if a double edged knife or tenta pierced in the body and dragged back straight, it would cause an elliptical injury. At the same time, the doctor has clarified in para-8 of cross-examination that if a double edged knife or tenta pierced in the body and dragged back straight, it would cause an elliptical injury. According to her, one side sharp edged knife or tenta will cause triangular injury if dragged straight. In para-9, she has clarified that the injuries found on P.Ws. 1 and 3 must have been caused by the same weapon. Nothing is elicited by defence from the cross-examination of P.W.7 to make her evidence improbable as to the nature of injuries found by her on the persons of P.Ws. 1 and 3. On the other hand, the evidence of P.W.7 amply lends corroboration to the evidence of P.Ws. 1 and 3 as to the nature of injuries caused and the kind of weapons used. 18. In this regard, Their Lordships of the Hon'ble Apex Court in the case of Solanki Chimanbhai Ukabhai Vs. State of Gujarat, AIR 1983 SC 484 : (1983) CriLJ 822 : (1983) 1 Crimes 625 : (1983) 1 SCALE 198 : (1983) 2 SCC 174 have been pleased to observe that if eye witnesses' testimonies are clear and convincing, discrepancies cannot matter. Doctor is a witness to both facts and opinion. Medical evidence is also direct evidence as far as it establishes fact i.e. tattooing according to the nature and dimension of injury, etc. Medical evidence is also corroborative of eye witnesses, etc., unless it may show that injury might have been caused in the manner alleged. Defence could use the medical evidence to show that the injuries could not have been caused, as alleged, and thereby tried to discredit the eye witnesses' testimonies. However, unless medical evidence shows so far that it completely rules out all possibilities whatever the injuries taking place in the manner alleged by eye witnesses, prosecution version cannot be thrown out on the ground of alleged inconsistencies between the two items of evidence. Now, adverting to the case at hand, it appears that there is no inconsistencies between ocular evidence and medical evidence so far as injuries on P.Ws. 1 and 3 are concerned for which the prosecution is well corroborated by the evidence of doctor to prove the injuries sustained by P.Ws. 1 and 3. 19. Now, adverting to the case at hand, it appears that there is no inconsistencies between ocular evidence and medical evidence so far as injuries on P.Ws. 1 and 3 are concerned for which the prosecution is well corroborated by the evidence of doctor to prove the injuries sustained by P.Ws. 1 and 3. 19. It is revealed from the evidence of P.W.5 that one tenta was seized by police vide Ext.2, but he has not spelt out from whom it was seized. P.W.8 revealed that he seized one tenta on production by Gramarakhi Kasinath Mahalik and prepared seizure list vide Ext.2. But, said Gramarakhi has not been examined by prosecution. On going through the seizure list vide Ext.2, it appears that in the column meant for "circumstances of seizure", it has been stated that the Gramarakhi was asked to find out the tenta, i.e. weapon of offence, who recovered the same from the bari of accused Benudhar and, thereafter, the tenta was seized on production by Gramarakhi Kasinath. Such part of evidence has not been challenged by defence while cross-examining P.Ws. 5 and 8. Of course, in cross-examination, P.W.8 admitted that he has not examined Gramarakhi Kasinath Mahalik, who produced the said weapon of offence, and he has not mentioned the place in the spot map wherefrom such weapon of offence was found. There is flaw in the investigation. Even if there is flaw in the investigation, defence has not challenged about seizure of such tenta from the bari of accused Benudhar. Not only this, but also P.W.8 has produced such weapon of offence in Court vide M.O.I. When seizure list and M.O.I are not challenged by defence during cross-examination to witnesses, mere flaw in the investigation will not be sufficient to reject the evidence with regard to seizure of the weapon of offence (M.O.I). The circumstance of seizure, as mentioned in the seizure list, assumes much significance because the seizure list, which is prepared by the Investigating Officer, should confirm the basic formalities of seizure. The circumstance of seizure mentioned in the seizure list cannot be discarded when the material object is produced in the Court. So, the seizure list, along with the evidences of seizure witness and Investigating Officer, assumes greater importance giving rise to circumstantial evidence against the appellants. Not only this, but also such M.O.I was sent by P.W.8 to the doctor for opinion. So, the seizure list, along with the evidences of seizure witness and Investigating Officer, assumes greater importance giving rise to circumstantial evidence against the appellants. Not only this, but also such M.O.I was sent by P.W.8 to the doctor for opinion. P.W.8 has proved the report of the doctor vide Ext.7, which shows that on 24.09.1991, the doctor opined that such injury was possible by the said tenta. Of course, prosecution has not examined P.W.7 as to examination of such M.O.I by him. This is a lapse on the part of the prosecution. 20. The duty of the prosecutor is to place all the cards before the Court to take final opinion. Even if the prosecutor has committed lapse on his part, the prosecution case cannot be allowed to suffer. It is the duty of the prosecutor to perform his homework properly and then produce evidence before the Court so that none of the documents, which are material for prosecution, would be lost sight of, making the prosecution case vulnerable. Moreover, when Gramarakhi is not examined by the Investigating Officer, prosecutor could have examined him to fill up lacuna. It is the duty of the prosecutor to be vigilant in all aspects so that guilty will not go unpunished. On the other hand, it is high time for the State Government to take urgent steps for imparting training to the prosecutors in a systematic way and evaluate their performances at regular intervals so that the prosecutors as well as the investigating agency will leave no stone unturned in due discharge of their duties. At times, the confidence on the Court is eroded for the lapses committed by the investigating agency and the prosecutors as well. But, this aspect can be well taken care of if the prosecutors/investigating agency are provided with proper training and their performances pertaining to the conduct of criminal cases, including sessions cases, are placed under deeper scrutiny and evaluation. 21. Be that as it may, in the present case, even if fault lies with the prosecutor and the Investigating Officer, but the facts remains that M.O.I was seized from the bari of accused Benudhar and such M.O.I was used as weapon of offence because of doctor's opinion contained in Ext.7. So, it is reiterated that the seizure of tenta is a circumstantial evidence against accused Benudhar. 22. So, it is reiterated that the seizure of tenta is a circumstantial evidence against accused Benudhar. 22. From the foregoing discussion, it is crystal clear that there are consistent evidence, both oral and circumstantial, adduced by prosecution to show that accused Benudhar has voluntarily caused hurt to Gorachand (P.W.1) and Pagal (P.W.3) by means of tenta, which has sharp cutting edges. But, at the same time, as discussed above, prosecution has not been able to prove by consistent, clear and trustworthy evidence with regard to voluntarily causing hurt to P.W.2 by accused Rabindra. So, the finding of learned Court below as to the complicity of accused Benudhar with the offence under section 324 of the I.P.C. is well confirmed, whereas his finding with regard to the complicity of accused Rabindra with the offence under section 323 of the I.P.C. is not agreed with and, as such, the conviction and sentence passed against accused Rabindra is not sustainable in eye of law as he is not found guilty thereunder. Resultantly, the order of conviction and sentence passed against accused Rabindra is set aside and he is acquitted of the charge under section 323 of the I.P.C. 23. So far as accused Benudhar is concerned, learned trial Court has not made endeavour to find out whether the beneficial provisions of Probation of Offenders Act or section 360 of the Cr. P.C. would be applicable to him. Section 235(2) of the Cr. P.C. provides that if the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of section 360, hear the accused on the question of sentence. Since the prosecution case has been started under Sessions trial, at least the trial Court could have considered the case under section 360 of the Cr. P.C. But, no such reason has been assigned as to why the provision of section 360 of the Cr. P.C. was not resorted to. Even if section 360 of the Cr. P.C. was not felt expedient, but the provisions of the Probation of Offenders Act could have been considered and resorted to when the imprisonment prescribed for the offence under section 324 of the I.P.C. is only three years and the reasons for not extending such Act should have been mentioned in the judgment. 24. Section 361 of the Cr. P.C. states as follows : "361. Special reasons to be recorded in certain cases. 24. Section 361 of the Cr. P.C. states as follows : "361. Special reasons to be recorded in certain cases. - Where in any case the Court could have dealt with, - (a) an accused person under section 360 or under the provisions of the Probation of Offenders Act, 1958 (20 of 1958), or (b) a youthful offender under the Children Act, 1960 (60 of 1960), or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders, but has not done so, it shall record in its judgment the special reasons for not having done so." 25. The aforesaid provision casts a duty on the Court to mention the special reasons in judgment for not applying such provision of law. His Lordship in the case of Saradhakar Sahu Vs. State of Orissa, (1985) 59 CLT 297 : (1985) CriLJ 1591 has been pleased to observe at para-12 as follows : "xxx xxx xxx ....in each case where an offender has been convicted of an offence coming within the purview of S. 3 or S. 4 or where the offender is below 21 years of age and has been convicted of an offence not punishable with imprisonment for life, there ought to be an exercise to find out if the provisions can be applied or not; not a routine or mechanical but a genuine, earnest and sensitive exercise. Let not the wind of change pass us by without inspiring us." With due respect to the said decision, it appears that the Court has to assign the reasons for not applying such provisions of law. Even if the offender is not below 21 years of age but has been convicted of the offence punishable upto seven years of imprisonment, as embodied under section 360 of the Cr. P.C., there also the Court has to assign the reason for not extending such provisions of law, as stipulated under section 361 of the Cr. P.C. 26. Apart from this, in the case of Gulzar Vs. P.C., there also the Court has to assign the reason for not extending such provisions of law, as stipulated under section 361 of the Cr. P.C. 26. Apart from this, in the case of Gulzar Vs. State of M.P., AIR 2008 SC 383 : (2007) 1 JT 219 : (2007) 1 SCALE 28 : (2007) 1 SCC 619 : (2007) 1 SCR 81 : (2007) 1 UJ 77 , Their Lordships of the Hon'ble Apex Court have been pleased to observe at para-12 as under : "Section 360 of the Code relates only to persons not under 21 years of age convicted for an offence punishable with fine only or with imprisonment for a term of seven years or less, to any person under 21 years of age or any woman convicted of an offence not punishable with sentence of death or imprisonment for life. The scope of Section 4 of the P.O. Act is much wider. It applies to any person found guilty of having committed an offence not punishable with death or imprisonment for life. Section 360 of the Code does not provide for any role for Probation Officers in assisting the Courts in relation to supervision and other matters while P.O. Act does make such a provision". With due respect to the above decision, it appears that the scope of section 4 of the P.O. Act is much wider than section 360 of the Cr. P.C. and the Court is required to apply such beneficial provisions wherever it is necessary. 27. After going through the provisions of law and the authorities, as mentioned above, it is observed that it is the duty of the Court below to assign the reasons for not extending the benefit of the provisions of the Probation of Offenders Act or section 360 of the Cr. P.C., as the case may be, when the accused is convicted for the offence punishable with imprisonment or fine for which such beneficial provisions or law apply. So, it is expected that the Courts below must act in accordance with law. Be that as it may, in the case at hand, since accused Benudhar has been convicted under section 324 of the I.P.C., report of the Probation Officer was called for and it was found therefrom that dispute arose owing to enmity between the parties and accused Benudhar had no such criminal antecedents. Be that as it may, in the case at hand, since accused Benudhar has been convicted under section 324 of the I.P.C., report of the Probation Officer was called for and it was found therefrom that dispute arose owing to enmity between the parties and accused Benudhar had no such criminal antecedents. At the same time, the fact remains that accused Benudhar assaulted P.W.1 and his brother P.W.3 by tenta following which both of them sustained bleeding injuries on their persons. When previous enmity is considered as a double-edged weapon and the injuries sustained by both the injured persons had profuse bleeding, the facts and circumstances and the evidence by which accused Benudhar has been convicted do not warrant his release under the provisions of Probation of Offenders Act or under section 360 of the Cr. P.C. 28. While awarding sentence, the Court has to consider the aggravating circumstance and mitigating circumstance and, accordingly, balance between the same should be chalked out. In the present case, learned trial Court has sentenced accused Benudhar to undergo rigorous imprisonment for three years, which is the maximum punishment provided under section 324 of the I.P.C. Of course, there is no reason assigned for awarding such sentence. Having regard to the fact that there is no criminal antecedent against accused Benudhar, the matter relates to the year 1992 and in the meanwhile he must have got family, in my considered view the same are mitigating circumstances. But, the aggravating circumstances are that he used tenta to cause bleeding injury on the left side abdomen, which is vital part of P.W.1, also caused multiple injuries on P.W.3 by the same weapon of offence (M.O.I) and those are serious injuries. In order to maintain balance between the said circumstances and for the interest of justice, the sentence awarded against accused Benudhar by learned trial Court is reduced and he is sentenced to undergo rigorous imprisonment for a period of one year. The period undergone, if any, by him as UTP be set off against the substantive imprisonment awarded. Bail-bonds furnished by him stand cancelled and he must surrender forthwith to serve the sentence. 29. The period undergone, if any, by him as UTP be set off against the substantive imprisonment awarded. Bail-bonds furnished by him stand cancelled and he must surrender forthwith to serve the sentence. 29. The Registrar General is directed to communicate copy of this judgment to the Principal Secretary to Government of Odisha, Home Department; Director General of Police, Odisha; and the Director of Public Prosecutions, Odisha, Bhubaneswar to do the needful in such cases where it is evident that the investigating agencies and prosecutors have not properly discharged their duties, in order to ensure quality of investigation and prosecution, which will ultimately enhance the administration of criminal justice system. At the same time, the Registrar General is directed to circulate copy of this judgment to all Courts below in the State. The appeal is allowed in part and accordingly disposed of. Final Result : Partly Allowed