JUDGMENT : A.K. Mishra, J. Appellant Saheb Goudo having died during pendency of the trial as recorded vide order dated 1.03.2007 in CRA No. 10 of 1998, the appeal against him stood abated. 2. Appellants of both the appeals are the convicts in the judgment dated 6.12.1997 in Sessions case No.15 of 1997 passed by learned Sessions Judge, Ganjam Gajapati, Berhampur. They were convicted under Sections 148/302 read with Section 149 of the Indian Penal Code (hereinafter referred to as I.P.C. in brevity) and under Section 3 of the Explosive Substances Act. For the offence under I.P.C. they were sentenced to life imprisonment for offence under Sections 302/149 I.P.C. and one year R/I for offence under Section 148 I.P.C. The appellants were also sentenced for R/I for three years for the offence under Section 3 of the Exclusive Substances Act. In both the appeals the said conviction and sentence are assailed, hence, this common judgment. 3. Prosecution case adumbrated in brief may be stated thus:- Deceased K. Gopi Reddy had animosity with the accused persons for illicit liquor trade. On 18.6.1996 the deceased and informant Ipili Ganesh had come to Berhampur in a scooter. While returning to their village Kukudakhandi in the evening they found accused Bijaya Kumar Goudo and Saheb Goudo sitting on a culvert near village A.Raghunathpur. Gopi asked the informant to stop the scooter. Gopi got down from the scooter and challenged both Bijaya and Saheb as to why they destroyed his liquor shop and threatened to assault them. Bijaya and Saheb ran away towards their village. Gopi chased after them. Informant waited near the culvert and after some time, he proceeded in his scooter towards village. While approaching the village, informant found deceased Gopi running towards him. The accused persons being armed with swords, lathies and bombs were chasing him. Gopi stumbled and fell down. One of the accused threw a bomb which exploded near the victim, others dealt sword blows and lathi blows causing multiple injuries to him. Informant drove away on the scooter to the village Kukudakhandi and informed the matter to the relations of Gopi. All of them returned to the spot and found Gopi lying dead in a pool of blood by the side of the road. Police staff who were camping at village Kukudakhandi because of Prime Minister's programme were informed about the incident. Informant drove away on the scooter to the village Kukudakhandi and informed the matter to the relations of Gopi. All of them returned to the spot and found Gopi lying dead in a pool of blood by the side of the road. Police staff who were camping at village Kukudakhandi because of Prime Minister's programme were informed about the incident. Police S.I. and constable came to the spot in a jeep. At 9.30 P.M. the informant lodged a written report before the O.I.C., Berhampur Sadar Camp at Raghunathpur. The said report was registered on the next day at 4.00 A.M. vide Berhampur Sadar P.S. Case No.79 of 1996 under Sections 147, 148, 302/149 I.P.C. 4. In course of investigation inquest and Postmortem were conducted. Leading to discovery of swords M.O.-VII and M.O.-VIII at the instance of Bijaya and Pramod in custody was made. Seizure of blood stained earth from the spot and some pieces of Sutuli with smell of explosive were sent for chemical examination. In respect of Sutuli and paper, explosive potassium was detected. Recovered swords were found with human blood. For proceeding under Explosive of Substances Act, sanction order of the District Magistrate Exhibit-19 was obtained. After completion of investigation, the I.O. submitted charge sheet against six accused persons including the present appellants. One Kangaru Goudo was shown absconder and case against him was split-up before commitment on 3.01.1997. After commitment to the Court of Session, the present appellants faced their trial for offence under Sections 148, 302/149 I.P.C. and under Section 3 of the Explosive Substances Act, 1908. 5. The plea of defence was denial and false implication stating that informant Ipili Ganesh had killed the deceased K. Gopi Reddy as he was unhappy with him and falsely implicated the accused persons who had earlier informed the excise and police authorities against the illicit liquor business of deceased K.Gopi. In course of argument in the lower court right to private defence was taken on the ground that when deceased chased two accused persons and threatened them, the accused persons apprehended danger to their lives. 6. Prosecution examined eight witnesses in all. P.Ws. 1, 2 and 3 are witnesses to the inquest and seizure. P.W.7 is a witness leading to discovery. P.W.4, a constable is a witness to the dead body challan and seizure list. P.W.6 is the informant and eyewitness. 6. Prosecution examined eight witnesses in all. P.Ws. 1, 2 and 3 are witnesses to the inquest and seizure. P.W.7 is a witness leading to discovery. P.W.4, a constable is a witness to the dead body challan and seizure list. P.W.6 is the informant and eyewitness. P.W.5 is the doctor and P.W.8 is the Investigating Officer. Twenty documents were exhibited including F.I.R., inquest report, chemical examination report, sanction order of the District Magistrate, photographs, spot map etc. 6.a Two witnesses were examined on behalf of the defence. D.W.1 is a witness to prove that informant Ipili Ganesh had a Kati at Berhampur and he along with deceased returned in inebriated state. D.W.2 is a witness to say that there was no facility of electric light on the spot. 7. Learned Sessions Judge scrutinizing the evidence of doctor and postmortem report found that the death of K. Gopi (deceased) was homicidal in nature and it occurred on 18.06.1996 at evening. He found that the evidence of solitary eyewitness P.W.6 was clear, cogent and consistent. He also found that accused persons Bijaya and Pramod having given discovery of one sword each had corroborated the eyewitness version. Learned Sessions Judge disbelieved the defence plea. All five accused persons were convicted and sentenced as stated above. 8. Mr. Rabindra Nath Naik, learned counsel for the appellants submitted that: (i) The sole eyewitness P.W.6 having been contradicted as to the specific role played by each of the accused persons, he is not a reliable witness and in absence of corroboration, learned Sessions Judge has committed error in recording conviction. (ii) Admittedly the occurrence took place at night and the prosecution having not disclosed about source of light, the identification of the accused persons by P.W.6 was doubtful for which the defence should have been given benefit of doubt. 8.a Mr. Saroj Kumar Das, learned counsel for the sole appellant Kaibalya Goudo submitted that informant P.W.6 having not implicated this accused Kaiblya either in the F.I.R. or in the statement recorded under Section 161 Cr.P.C., the presence of accused Kaibalya at spot is doubtful. For that the conviction of appellant Kaibalya Goudo is not sustainable and the same should be set aside. 9. Learned Additional Government Advocate supports the judgment on the grounds stated therein. For that the conviction of appellant Kaibalya Goudo is not sustainable and the same should be set aside. 9. Learned Additional Government Advocate supports the judgment on the grounds stated therein. With regard to appellant Kaibalya, it is submitted that such omission in the F.I.R. and Sec.161 Cr.P.C. statement cannot be considered when substantive evidence of the informant implicates him. 10. We carefully perused the lower court records having heard rival contentions. 11. There is no dispute that deceased Gopi had met homicidal death on 18.06.1996 at evening hour at village A.Raghunathpur. 11.a Doctor P.W.5 who conducted Postmortem found twenty external injuries including burn injuries. He has stated that injury nos. 15, 16, 17, 18 and 19 were possible by swords M.O.-VII and M.O.-VIII. He has also stated that the trouser and shirt of the deceased were burnt and such burn injuries could not be caused by explosion of bomb kept inside the pocket. Postmortem report and his opinion are Exhibits6 and 7. The cause of death was due to shock and haemerrrhage as a result of the injuries sustained by the deceased. The prosecution has not only proved the death of deceased as homicidal in nature but also use of explosive and sharp cutting weapons to cause injuries on the body of the deceased. 12. The prosecution rests on the testimony of the sole eyewitness P.W.6. Learned trial court has appreciated it but the same being questioned, we give a glance to that carefully. P.W.6 has stated that he and deceased left Berhampur at 7.00 P.M. On their way back at Ankusapara Chhak, Gopi Reddy and Ganesh Dora took liquor from a shop, Ganesh Dora stayed back. Gopi and he (P.W.6) returned on the scooter. He (P.W.6) was driving the scooter. On the way near village A.Raghunathpur they saw accused Bijaya Goudo and Saheb Goudo sitting on the culvert. Deceased Gopi Reddy asked him (P.W.6) to stop the scooter. He stopped the scooter. Gopi went towards those two persons, namely, Bijaya Goudo and Saheb Goudo and challenged them as to why they destroyed his liquor. Both Bijaya and Saheb ran towards the village. Gopi chased them. He (P.W.6) waited there for about five minutes and went towards village thereafter in his scooter. At the school, he found accused persons and one Kangaru (absconder) chasing the deceased Gopi and he was running towards him (P.W.6). Both Bijaya and Saheb ran towards the village. Gopi chased them. He (P.W.6) waited there for about five minutes and went towards village thereafter in his scooter. At the school, he found accused persons and one Kangaru (absconder) chasing the deceased Gopi and he was running towards him (P.W.6). 12.a He further testified that accused Bijaya and Pramod were holding one sword each, Prakash, Saheb and Kangaru were holding lathies. Accused Kaibalya threw a bomb which hit on the right leg of Gopi and exploded, and Gopi fell down, then all the accused persons and Kangaru surrounded Gopi. Bijaya dealt three blows with the sword on the back side of the neck of Gopi. Pramod dealt two blows on the back of the neck of Gopi. The rest of the accused persons dealt lathi blows. Kaibalya exploded a second bomb near Gopi. Seeing that, he drove away on his scooter and informed the matter to the father of Gopi. Thereafter the father of Gopi, Jayaram, Babi and Jadusudan came to the spot on a tempo and found Gopi lying about 20 cubits away from the spot where he was attacked and he was dead then. Thereafter others including police came and he submitted a report Exhibit-8. 12.b In cross examination he has stated that police personnel were camping as the Prime minister had to visit to their area. He denied the suggestion that he had enmity with Gopi Reddy and he with his associate killed Gopi Reddy. 12.c In para-7 of the cross examination he was contradicted regarding omission in his earlier statement under Sec. 161 Cr.P.C. and also in the F.I.R. that Bijaya and Pramod were holding a sword each while Prakash, Saheb and Kangaru were holding a lathi each and that accused Bijaya dealt three blows with his sword and Promod dealt two blows with his sword on the back of the neck of Gopi and accused Kaibalya exploded bomb and that rest accused persons dealt lathi blows on Gopi. The witness has admitted such omission. 12.d The witness having admitted such omission as contradiction, the defence did not put the same to the I.O. who has recorded his statement under Section 161 Cr.P.C. The procedure has sanction of law reiterated in the Constitutional Bench decision of the Hon'ble Apex Court; Tahsildar Singh and Another Vs. The witness has admitted such omission. 12.d The witness having admitted such omission as contradiction, the defence did not put the same to the I.O. who has recorded his statement under Section 161 Cr.P.C. The procedure has sanction of law reiterated in the Constitutional Bench decision of the Hon'ble Apex Court; Tahsildar Singh and Another Vs. The State of Uttar Pradesh, (1959) AIR SC 1012 it is held as follows:- "xx xx xx. The procedure prescribed is that, if it is intended to contradict a witness by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. The proviso to s. 162 of the Code of Criminal Procedure only enables the accused to make use of such statement to contradict a witness in the manner provided by s. 145 of the Evidence Act. It would be doing violence to the language of the proviso if the said statement be allowed to be used for the purpose of cross-examining a witness within the meaning of the first part of s. 145 of the Evidence Act. Nor are we impressed by the argument that it would not be possible to invoke the second part of s. 145 of the Evidence Act without putting relevant questions under the first part thereof. The difficulty is more imaginary than real. The second part of s. 145 of the Evidence Act clearly indicates the simple procedure to be followed. To illustrate: A says in the witness-box that B stabbed C; before the police he had stated that D stabbed C. His attention can be drawn to that part of the statement made before the police which contradicts his statement in the witness-box. If he admits his previous statement, no further proof is necessary; if he does not admit, the practice generally followed is to admit it subject to proof by the police officer." 12.e On careful scrutiny of the evidence of P.W.6 in the backdrop of above omission brought out by defence, it is unfolded that he had not stated earlier the specific role played by each of the accused persons except Kaibalya though, he had implicated all the accused persons having chased the deceased with arms. He has stated earlier about explosion of bomb near the deceased but has not stated specifically that accused Kaibalya had exploded the same. 12.f The manner in which the incident took place in successive sequence, non-attribution of roles in exactitude to the participants qua specific blows by specific weapons has no propensity to negative the presence of accused persons, who were chasing the deceased with arms as stated in the F.I.R. and in the statement under Sec.161 Cr.P.C. This is an embellishment and if the same is culled out by separating grain from chaffs, P.W.6 can still be found to have consistently testified that all the accused persons except Kaibalya had chased with arms to the deceased and had inflicted the injuries by means of swords, lathies and bombs resulting his death. P.W. 6 has named all but Kaibalya in the F.I.R. and also other villagers. He cannot be said to have implicated the accused persons at the earliest opportunity falsely. The F.I.R. was lodged soon after the incident while the dead body was lying at the spot. Fortunately the police personnel were camping in nearby area. Defence has not disputed through D.W.1 that deceased and informant had been to Berhampur on that day. 12.g On the anatomical survey of the testimony of P.W.6, we find him truthful and reliable. If a party wishes to raise any doubt with regards to the correctness of statements of P.W.6 as to the presence of accused persons except Kaibalya, his attention should have been drawn specifically with regard to absence of accused persons not their specific role played during incident. The gap between the presence of a person and the specific role played there by him is so distinct that omission in one does not wipeout others. The presence of a person cannot be doubted because he is found to have acted in a particular manner not witnessed by others. There is no inherent repugnancy between two. The witness in course cross-examination should have been given an opportunity to explain the difference between the presence of the accused persons at the spot and the role they played. The presence of accused except Kaibalya in the testimony of P.W.6 has remained unchallenged. The kernel of the truth in the testimony of P.W.6 is that he had seen the incident where all the accused persons had participated with arms. 13. The presence of accused except Kaibalya in the testimony of P.W.6 has remained unchallenged. The kernel of the truth in the testimony of P.W.6 is that he had seen the incident where all the accused persons had participated with arms. 13. As the sole testimony of P.W.6 is to decide the fate of accused persons, we do not hesitate to test further as to its credibility and reliability. P.W.6 was not a stranger to the accused persons and the villagers of A.Raghunathpur. While naming accused persons and others he had omitted to state the name of Kaibalya Goudo. He had implicated one Kangaru Goudo along with the present appellants. He has stated that he waited and after five minutes when he approached on his scooter towards the village he saw deceased rushing back while the villagers including accused persons were chasing and thereafter the bomb was exploded and blows were given. Absent of electric light is immaterial because.W.6 had identified the accused persons in the scooter light and had seen Bijaya and Saheb earlier while they were sitting on the culvert. 13.a The plea that P.W.6 had killed the deceased basing upon the statement of D.W.1 that he had seen the deceased with a 'Kati' at Berhampur is not believable because the death of deceased was due to burn injuries as well as other injuries caused by weapons like sword and lathi. The plea is advanced to be rejected as improbable. 13.b After attack, P.W.6 had reacted in a normal way to rush for giving information to the father of the deceased Gopi. His conduct in not going to police first is not unnatural because when he himself could not save the deceased from the attack of accused persons, his reaction to inform the father of the deceased first was prognostic of ordinary human conduct. 13.c When the father and others were present near the dead body at the spot, the police reached there. The lodging of a report by P.W.6, who accompanied the deceased on that day till the incident cannot be viewed in a tainted eye to find fault in his credibility. In the circumstances, he was the only person to have direct knowledge about the whole incident. We believe his testimony. 14. The lodging of a report by P.W.6, who accompanied the deceased on that day till the incident cannot be viewed in a tainted eye to find fault in his credibility. In the circumstances, he was the only person to have direct knowledge about the whole incident. We believe his testimony. 14. In the decision reported in Kunju @ Balachandran V. State of Tamil Nadu, (2008) AIR SC 1381, it has been reiterated that the conviction can even be based on the testimony of a sole eyewitness; it is not the number of witnesses but quality of the evidence which is important. In the decision Kartik Malhar Vs. State of Bihar, (1996) 1 SCC 614 it is reiterated that the well known maxim that "Evidence has to be weighed and not counted" has been given statutory placement in Section 134 of the Evidence Act. 15. At this juncture, we also find corroboration to P.W.6 from the factum of the leading to discovery of M.O.-VII and M.O.-VIII by accused Bijaya Goudo and accused Pramod Goudo. The I.O. P.W.8 has categorically stated that on 30.6.1996 he arrested accused Bijaya Goudo, Pramoda Goudo, Saheb Goudo and Prakash Goudo. While accused Bijaya in police custody gave recovery of a sword concealed inside a bush of which statement was recorded vide Exhibit11 and the sword was seized under Exhibit-10. Similarly accused Pramod led him to recover one sword M.O.-VIII after giving statement under Exhibit-12 and the seizure was made under Exhibiti-9. P.W. 7, an independent witness, has corroborated such recovery admitting his signature in the statement. So the fact that accused Bijaya and Pramoda had knowledge about the two swords M.O.-VII and M.O.-VIII, is admissible under Section 27 of the Evidence Act. The chemical examination report Exhibit-16 proves that both the swords were found smeared with human blood. Doctor P.W.5 has opined that injuries on the deceased could have been caused by those two swords. The availability of human blood stain on the swords M.O-. VII and M.O.-VIII connects the same with the factum of causing injury on the body of the deceased. This part of circumstance leading to discovery at the instance of accused Bijaya and Pramod gives corroboration to the eyewitness P.W.6. 16. The availability of human blood stain on the swords M.O-. VII and M.O.-VIII connects the same with the factum of causing injury on the body of the deceased. This part of circumstance leading to discovery at the instance of accused Bijaya and Pramod gives corroboration to the eyewitness P.W.6. 16. On independent analysis of the evidence, we rely upon P.W.6 to the extent that accused Bijaya Goudo, Saheb Goudo (abated) Pramod Goudo and Prakash Goudo along with others had formed an unlawful assembly and in prosecution of their common object had attacked the deceased Gopi Reddy resulting his death which was culpable in nature. The members of unlawful assembly had exploded the bomb. The participation of accused Kaibalya Goudo being not stated at the earliest opportunity in the F.I.R. or in the 161 Cr.P.C. statements by P.W.6 appears to be doubtful. He should be given benefit of doubt. 17. Even after acquittal of Kaibalya Goudo, the four appellants along with others having participated as member of an unlawful assembly, offence under Sections 148 and 302/149 I.P.C. are found to have been established beyond reasonable doubt. The defence plea advanced during argument in the lower court that accused persons had right to private defence as it is evidenced that deceased Gopi Reddy had chased Bijaya and Saheb and had threatened them, is not acceptable because when deceased was attacked by the accused persons with villagers he was running away from the village and had no weapon with him. Much earlier to that he had threatened Bijaya and Saheb while chasing them near the bridge. So the apprehension of danger to the lives of the villagers including accused persons was not in the arena of their comprehension. Learned trial court has rightly appreciated the evidence in this regard to discard such defence plea and we do not find any reason to run contrary. To say the least, the probability of defence plea lacks its luster. 17.a Consequent upon re-appreciation of the evidence on record, we find sufficient force to give benefit of doubt to accused Kaibalya Goudo and his conviction and sentence are to be set aside. We confirm the conviction and sentence of appellants Bijaya Goudo, Pramod Goudo and Prakash Goudo and the appeal in respect of them stands dismissed. 18. In the result, CRA No. 10 of 1998 stands dismissed. We confirm the conviction and sentence of appellants Bijaya Goudo, Pramod Goudo and Prakash Goudo and the appeal in respect of them stands dismissed. 18. In the result, CRA No. 10 of 1998 stands dismissed. CRA No. 12 of 1998 is allowed and the conviction and sentence in Sessions Case No. 15 of 1997 passed by the learned Sessions Judge, Ganjam-Gajapati, Berhampur with regard to accused-appellant Kaibalya Goudo is hereby set aside. Appellant Kaibalya Goudo is on bail vide order dated 10.04.2003 passed in Misc. Case No.73 of 2003 of this Court. Bail bond of Kaibalya Goudo be cancelled. 19. Return the L.C.R. immediately to the lower court.