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My maternal uncle after easing himself went to clean himself in the common pond of Gurubari Swain, Nisakar Swain and others on the southern side of the village and came out. Balakrushna Swain, Pranakrushna Swain and Laxmidhar Swain came out at once from the side of that tank with Lathis or some like weapon as was visible. Laxmidhar Swain at once gave a stroke on the head of Chakradhar Swain. Balakrushna Swain gave a stroke on the head of my maternal uncle Bhramar. I could not clearly see, in the moonlight, the weapon they held. My maternal uncle at once fell down just after the stroke on him. When Uttam Charan Swain came there hearing the cry of Chakradhar Swain, Panu Swain gave two strokes on his back Thereafter the F.I.R. records P.W. 1 as stating that 20 or 25 people who were standing there said 'kill him catch him'. He further says he was able to recognise by the voice seven accused whose names he gave. Apart from these seven persons he had also named five others who were standing there holding a lathi which he says was visible to him in the moonlight. The Investigating Officer Banambar Ray P.W. 19 started the investigation, went to the spot, held an inquest and collected blood stained mud M. O. XII from the paddy field where the incident is said to have taken place. He also went to the house of the deceased and searched for blood stained earth but did not find it. P.W. 19 says while he was going to the place of incident, he met P.W. 5 who was being carried in a basket, so he gave a requisition Ex. 11 to the Medical Officer, Ersama for examination and treatment. The body of the deceased was also sent on 8-1-66 to Cuttack for post-mortem examination, as carriers could not be arranged earlier. On 7-1-66 he arrested the Appellant and two others and the remaining accused were arrested on different dates. A wooden lathi M. O. IV was recovered from the house of the Appellant on 8-1-66 and M. O. V and VI, the blood stained Lungi and Ganji (Vest) of P.W. 5 was seized on 15-1-66. He then sent the blood stained articles to the chemical examiner. These articles bore a few brown stains of blood with respect to which the seriologist reported that the result of the test on the Ganji was inconclusive while the blood on the Lungi and blood stained earth had disintegrated and therefore it could not be ascertained that what was found on these articles was human blood.

1) Incised looking lacerated wound on scalp 3" x 3/4" x bone deep extending vertically from a point 2 1/2 " above the root of the nose, on the frontal bone and right parietal bone.

2) Ecchymosis on left fore-head extending over an area of 2" x 2".

3) Ecchymosis of left upper eye lid.

On dissection a linear fracture of the skull 7" long extending in the frontal bone from a point 3" above the root of the nose which after running 2" turns to left vertically downwards on the left temporal bone. There was also a crack fracture 4" long running through the pituitary fossa extending to left along the front margin of the left petrous temporal bone. The injury to the brain in his opinion was the cause of death and that a blunt weapon must have caused the head injury. He was asked in examination-in-chief whether the blunt side of a Katuri might also cause such an injury and his answer was that it could be so caused but in cross-examination he admitted that the head injury on the deceased was not an injury caused by a sharp cutting weapon by using its sharp edge. The evidence of P.W. 5 is that the Appellant gave a lathi blow on the waist of the deceased and after he fell down on the ground the Appellant gave a blow with the Katuri on his head. He further says he could see clearly the Katuri and that the Katuri blow on the deceased was given when P.W. 5 was still standing. According to this witness there was only one blow with a lathi and that too on the waist, if so this evidence is inconsistent with the Doctor's finding that the head injury must have been caused by a blunt weapon like a lathi. P.W. 5 however had stated in the Committal Court that one blow was given with lathi on the head and the other blow was on the waist and that too with a lathi. When confronted with his statement in the Committal Court that the Appellant had given a lathi blow on the head of the deceased, he denied that he made such a statement. When he was asked that in the Committal Court he had not said the Appellant had given a Katuri blow on the head of the deceased he said it is not a fact that he did not speak of a Katuri blow on the deceased. It was also put to him that he had not stated before the Police that a Katuri blow was given by the accused to the deceased but does not remember whether he stated before the police whether only one blow was given to the deceased. While the High Court noted this contradiction it appeared to it that the evidence of the Doctor that a blunt weapon must have caused the injury to the deceased was consistent with the statement of P.W. 5 in the Committal Court which statement was held to be substantive evidence since it was brought on record after due confrontation under Section 145 of the Evidence Act. The High Court further observed:

On the other hand the Trial Judge while referring to the contradiction in the Committal Court with the statement made by the Appellant before him observed that the outstanding fact is that the Appellant had both a lathi and a Katuri in his hand which fact was corroborated by P.W. 11 when he says he saw the Appellant running and holding in one hand a lathi and in the other a Katuri and since P.W. 16 the Doctor says the injury on the deceased could be caused by a lathi blow and also by the blunt edge of the Katuri he thought it was immaterial "whether some of the eye witnesses speak of a lathi blow being the cause of the head injury of Bhramar and Others speak of a blow given with a Katuri being the cause of the injury. Thus from the above evidence of the occurrence witnesses, P. Ws. 1, 2 and 5 corroborated by the evidence of P.W. 11 in a substantial degree, the irresistible conclusion must be that the accused Balakrishna caused the mortal head injury of the deceased by giving a severe blow with either a lathi or the blunt edge of a katuri and thus, the death of Bhramar was caused instantaneously"

8. The above passage would show that the Sessions Judge was trying to reconcile the contradictions in the two statements of P.W. 5 by holding that the accused had both a Katuri and a lathi in his hands. This is so because P.W. 1 also says that the Appellant had a Katuri and a lathi when he attacked the deceased. It is in our view difficult to comprehend how he could carry a lathi in one hand and a Katuri in the other and still be free to give a Lathi or Katuri blow on the head of the deceased with such force and intensity as would cause the kind of injury which caused the death of the deceased. Be that as it may, the High Court as we have pointed out earlier relied on the statement of P.W. 5 made in the Committal Court in holding that the blow was given by a lathi. We however find that the Sessions Judge brought the deposition of P.W. 5 in the Committal Court on record under Section 288 of the Criminal Procedure Code not at the time when P.W. 5 was being examined but after the evidence for the prosecution was closed and after the statement of all the accused were recorded. The next day i. e., 8-12-66 it would appear the defence counsel tendered the deposition of P.W. 2 in the Committal Court but the Sessions Judge not only admitted that evidence but also the evidence of P.W. 5 in the Committal Court under Section 288, Criminal Procedure Code. Whether this is the proper procedure need not now concern us but even so the High Court failed to note that in the Committal Court the witness had not said that the Appellant was carrying a Katuri also, but none-the-less in the Sessions Court he insists that he had said so. Similarly he denied that he stated in the Committal Court that the blow on the head was given by a lathi. In any case if the statement in the Committal Court is to be taken the first blow which was given by the Appellant was with a stick and was on the head and the second blow was on the waist. In the Sessions Court however, he stated that the first blow with a lathi was on the waist and after the deceased fell down it was only then the fatal blow was given on the head. These contradictions ordinarily would by themselves not have much significance but where as in this case the witness for no justifiable reasons was not examined for nearly 10 days and he is found to be telling falsehoods on material aspects of the case it becomes difficult to place any reliance on such testimony particularly when he tries to conform to the evidence of P.W. 1 in the Sessions Court that the first blow was given by a lathi on the waist and the second by a Katuri on the head. When this very statement of P.W. 1 has not been relied on by the High Court there is no reason for taking a part of his statement from the Sessions Court and a part from the Committal Court to piece it as a whole for a narration as to how the deceased was killed. There are also other circumstances in this case which though may not support the defence version of how the incident took place none-the-less indicate that there have been confabulations and consultations between P.W. 5 and the other witnesses immediately after the death of the deceased. The fact that the dead body was put on a bamboo platform which was constructed for that purpose in the paddy fields would indicate that the incident may not have taken place as spoken to by the witnesses. The evidence of P.W. 1 shows that on the date of the occurrence he, Mahani, Uttam, Fakir, Nisakar had discussions for two hours in the house of Bharmar. The question naturally arises as to what they were discussing. Were they discussing as suggested by the learned Advocate for the Appellant as to what story must be told about the death of the deceased? This admission merely indicates that the version in first information was not spontaneous. P.W. 2 says that the Appellant dragged the deceased and Laxmidhar Swain caught hold of the neck of the deceased and threw him on the floor and then the Appellant assaulted him with a Katuri on the head. This caused bleeding injury and death on the spot The witness further says in cross-examination that there was a quarrel between the deceased and his brother-in-law (Sala) on the date of occurrence. This quarrel between Sala and Behnoi took place two ghadis before sunset. He also said that the deceased never used to stay in his - the witness's house but on the day of the occurrence he was going to stay in his house. On the evidence of P.W. 1 15 days before the incident, he, the deceased's mother and younger son came to live in the deceased's house at Nachhipura. When the deceased found that his house was broken down, he started to build it, on the day of the incident when there was a verbal wrangle and physical struggle between the deceased on one side and the Appellant and P.W. 5 on the other in respect of a rafter brought by the deceased from the house purchased from Fakir Swain In fact he admits at this time a wooden rafter fell down but it did not cause any injury to the deceased and P.W. 5. The witness also speaks of enmity between P.W. 5 and the deceased because P.W. 5 was supporting Sundari. There seems to have been a Criminal Case filed by the deceased against Sundari. P.W. 5 and the Appellant sometime before the incident and according to the witness on the day of the incident P.W. 5 and the Appellant were on one side when the physical struggle as spoken to by P.W. 1 took place against the deceased. Relying on this evidence the learned Advocate for the Appellant contends that on the day of the incident there was a quarrel and a physical struggle about the rafter brought from the house purchased by deceased from Fakir Swain, in which P.W. 5 and the Appellant were on one side and the deceased on the other. In this physical struggle it is contended that blows may have been exchanged between P.W. 5 on the one hand and the deceased on the other in which P.W. 5 caused a fatal injury to the deceased, while deceased was responsible for injuries on P.W. 5. Thereafter it is alleged that P.W. 5 with the help of P.W. 1 and others cooked up and concocted the story against the Appellant and others as they were also inimical and would have a motive for killing the deceased. Whether there is justification for this contention which is merely based on the testimony of P.W. 1 that there was quarrel and physical struggle between the deceased on one side and P.W. 5 and the Appellant on the other, there are several features in this case to which we have referred which will certainly create a doubt as to the veracity of P.W. 5's statement. If P.W. 1a's testimony about the occurrence cannot be relied on on the same parity of reasoning the evidence of P.W. 5 also is not dependable. The evidence to which we have referred would show that the eye witnesses have not come out with the truth as to how the occurrence took place and where it took place. In the circumstances it would be unsafe to rely on it, in convicting the accused. We accordingly allow the Appeal, set aside the conviction and direct the accused to be released.