JUDGMENT : Ray, J. - There are three Appellants in this appeal, viz, Swaran Singh, Alekh Narayan and Gyani Kalar. Swaran Singh has been convicted u/s 302/34, Alekh Narayan u/s 302 and Gyani Kalar u/s 302/34 of the Indian Penal Code, and all of them have been sentenced to R.I. for life by Sri R.C. Kar, Sessions Judge, in his judgment dated 27-2-1965 passed in Sessions Case No. 23-B/65. 2. Originally these three Appellants together with one Kaluram Agarwalla were sent up for trial to the Court of Sessions, under Sections 120-B, 302/34 and 109, Indian Penal Code. All the accused were acquitted of the charge u/s 120-B. Accused Kaluram Agarwalla was acquitted of all charges while the remaining three accused-Appellants were convicted and sentenced as aforesaid. 3. The prosecution came with the case that the aforesaid Kaluram had business rivalry with Gopi Singh, the deceased and it is alleged that various acts of enmity were committed by the deceased and his party against Kaluram. As a consequence of this long-standing enmity, Kaluram and the present Appellants conspired together to murder Gopi Singh and it is said, being instigated by Kaluram the three Appellants killed him on 13-8-1963 at about 3 p. m. 4. It is the case of the prosecution that on the date of occurrence, the deceased Gopi Singh in company with his servant (p.w.1) bad come to make some purchases from the Basti at Lethore. He purchased one tin of kerosene oil and a bundle of other articles from the shop of one Bhola Marwari. After making the purchases, while he was returning home and had crossed the railway level-crossing, be was accosted by the accused persons where weekly market is held, and was assaulted by all the Appellants. It is said that Appellant-I, Swaran Singh, who was armed with a Talwar first made the attack on Gopi Singh and there-after the other two Appellants, viz., Alekh Narayan, who was armed with a spear, and Gyani Kalar who was armed with a lathi, attacked the deceased simultaneously from behind. After the deceased fell down on the ground, the Appellants continued to assault him on his head. As a result of the assaults Gopi Singh died at the spot. 5. P.w.1 who was coming with the deceased watched the assault from a distance. After the deceased fell down on the ground, the Appellants continued to assault him on his head. As a result of the assaults Gopi Singh died at the spot. 5. P.w.1 who was coming with the deceased watched the assault from a distance. He left the place after the murder had been committed, and informed Hari Singh, (p.w.23) the brother of the deceased. On hearing about tile incident, p.w.23 accompanied by p.w.22, Jagat Singh, the son of the deceased, p.w.27 Bhramar Singh, his driver along with p.w.21 came to the spot, where the deceased was lying dead on the ground. Sometime thereafter the accused persons having appeared on the Scene, there was some altercation between this party and the accused-party, as a result of which a free-fight ensued in which both parties were injured. That is bow the accused persons, according to the prosecution story, received injuries on their persons. Thus the prosecution story divides the entire occurrence into two phases, both as regards time and place. 6. The defence case, however, is that there was only one transaction of the entire occurrence. According to the defence while the accused persons were coming from the village tank after answering their call of nature, they were attacked by the deceased and his party, viz., p.ws. 21, 22, 23, and 27 who were concealing themselves in the nearby shrubbery and they had to defend themselves as best as they could. Of the three Appellants Swaran Singh alone was armed with a Kripal and the other two Appellants, viz., Alekh Narayan and Gyani Kolar, were completely unarmed. 7. The aforesaid occurrence took place on 13-8-1963 at 3 p. m. as mentioned above in broad day light in a public place. The police station which is at a distance of 12 miles from the place of occurrence received information at 9 p. m. that very day from the beat-constable, p.w.26, who gave it in writing which was treated as the F.I.R. It is in evidence that the information (p.w.26) had gone to lodge the F.I.R. in the jeep of Bengal paper Mill, which was at a short distance from the place of occurrence. The 1. The 1. 0., (p.w.28) left the police station for the place of occurrence at about 11 p.m. on 13-8-1963 in the same jeep in which p.w.26 had gone to lodge the F.I.R., but halted on his way in an Ashram School, about five miles from the place of occurrence. He reached the place in the morning of 14-8-1963 and held inquest over the deadbody at about 9 a. m. He also made some seizures including the Talwar, seized from the Appellant Swaran Singh. He sent the deadbody for post-mortem examination to the Assistant Surgeon, Government Hospital at Kantabanji, at 11 a. m. and arrested the accused persons that very day. The dead body reached the morgue at 3 p. m. and the post-mortem examination was held at 5. 10 p. m. by doctor, p.w.11, on the same day. The I.O. (p.w.28) who was camping at Lathore, the place of occurrence from 14-81963 to 22-8-1963, for investigation of the case, handed over the charge to the Circle Inspector, and ultimately the Appellants were charge-sheeted and committed to the Court of Sessions for trial. 8. The learned Sessions Judge while dismissing the charge u/s 120-B, Indian Penal Code, found that there was no evidence worth the name to connect Kaluram with the crime and that the charge of abetment against him had not been proved. He also found that Appellant Swaran Singh was armed with a Talwar, Appellant Alekh Narayan with a spear and Appellant Gyani Kalar with a lathi and they started the attack on deceased Gopi Singh all of a sudden which was witnessed by p. ws. 1, 2, 4 and 5. P.w.3 who came as an eye-witness to this part of the occurrence has been discarded by the trial court. He also found that the medical evidence was at such great variance not only with the inquest report (Ext. 10)" but 80180 with the story given by the eye-witnesses, that if such medical evidence is believed, it will completely demolish the prosecution case. So the learned Sessions Judge proceeded to decide the case on the basis of oral evidence, even though such evidence runs counter to the medical evidence. 9. With regard to the bonafide character of police investigation, the learned Sessions Judge says that the case diaries were not prepared on 14-8-1963 on which date they have been shown to have been done. 9. With regard to the bonafide character of police investigation, the learned Sessions Judge says that the case diaries were not prepared on 14-8-1963 on which date they have been shown to have been done. He also found that the prosecution has offered no explanation as to the presence of injuries on the body of accused persons. But believing that there was a second phase of the fight or occurrence, he comes to the conclusion that the injuries must have been given in course of the free tight in the second phase. 10. The defence has urged the following points in pressing for an acquittal; viz., (i) Medical report (Ext. 7) being inconsistent with the evidence of eye-witnesses, the latter must be discarded; and as such, there is a complete absence of evidence to bring the charge home to the accused. (ii) The prosecution has failed to give the true picture of the incident, and as such, the accused persons are entitled to an acquittal. (iii) The investigation by the police and the drawing up of the F.I.R. have not been made in a bonafide manner; and on this ground also, the accused-Appellants can claim acquittal; and (iv) It being the admitted case of the prosecution that there were some grievous injuries on some of the accused persons, and there being no explanation offered as to how and in what manner those injuries were caused the order of conviction and sentence passed upon the Appellants cannot be sustained. 11. The learned Sessions Judge categorically holds, as already stated above, that if the medical evidence is to be believed, it will completely demolish the prosecution case. He, however, relying on the evidence of p. ws. 1, 2, 4 and 5 has come to a finding that the Appellants are guilty of the offences aforesaid, and in doing so he believed that oral evidence in preference to medical evidence. It has, therefore, to be seen whether the learned Sessions Judge is justified in doing so. The principle to be followed in such cases has been laid down in a case reported in Thakur and Others Vs. It has, therefore, to be seen whether the learned Sessions Judge is justified in doing so. The principle to be followed in such cases has been laid down in a case reported in Thakur and Others Vs. State in the following terms: Where there is a conflict between the medical evidence and the oral testimony of witnesses, the evidence can be assessed only in two ways: a court can either believe the prosecuting witnesses unreservedly and explain away the conflict by holding that the witnesses have merely exaggerated the incident or rely upon the medical evidence and approach the oral testimony with caution testing it in the light of the medical evidence. The first method can be applied only in those cases where the oral evidence is above reproach and creates confidence and there is no appreciable reason for the false implication of any accused; where the evidence is not of that character and the medical evidence is not open to any doubt or suspicion, the only safe and judicial method of assessing evidence is the second method. In the present case the oral evidence relied upon by the learned Sessions Judge is not above reproach, and does not inspire confidence. P.w.1 is a servant of the deceased and continues to be so in his house'; and besides, he is an opium-eater. He thus is an interested witness and tested in the light of evidence of p.w.7, and Englishman, and the only disinterested witness in the case, p.w.1 is found to be lying on many points. He also suppresses a part of the prosecution case by feigning ignorance as to how and in what manner the accused persons suffered the bodily injuries. p.w.4 has resiled in Court from his statement subscribed before the Magistrate u/s 164, Code of Criminal Procedure and he was not discovered by the police to be an eye-witness till eight days after the, occurrence. His evidence regarding commission of the assault also materially varies from that of p. ws. 1 and 2. p.w.5 does not state of having seen any assault by accused Swaran Singh. He deposed only to the assaults with lathis by Appellants Gyani Kalar and Alekh Narayan. Besides, p.w.5 .in cross-examination admits to have stated before the police that he had only, heard about the murder of Gopi Singh (deceased). 1 and 2. p.w.5 does not state of having seen any assault by accused Swaran Singh. He deposed only to the assaults with lathis by Appellants Gyani Kalar and Alekh Narayan. Besides, p.w.5 .in cross-examination admits to have stated before the police that he had only, heard about the murder of Gopi Singh (deceased). P.w.2 is .an ex-convict and is contradicted by p.w.70n some aspects of the case and cannot say how the accused persons suffered the injuries. P. ws. 21 to 23 and p. w 27 are, the batch of witnesses to the second phase of the occurrence. They differ to a great degree from p. ws. 1 to 5 as to bow the accused persons were armed. They also suppress the fact that some of, them had been armed with bow and arrow, as also sharp-edged weapons as will be apparent from the medical evidence (p.w.9) and the injury reports (Exts. 4 to 6), that, some of the injuries on the accused persons had been caused by arrows and sharp-edged weapons, and from the fact that blood.stained arrows were produced by the accused Swaran Singh. It thus appears that the prosecution witnesses tried to suppress a large and material part of the real occurrence so as to eliminate the making out of a case of right of private defence of person by the accused. In these circumstances, applying the legal dictum quoted above, and in view of the fact that medical evidence is not open to suspicion, the only safe method of assessing the evidence is to rely upon the medical evidence and to test the veracity of the oral evidence in the light of it. 12. Learned Counsel for the Appellants took us elaborately through the evidence of p. ws. 1, 2, 4 and 5 and their evidence as to assault is wholly discredited by the medical evidence (p.w.9) and cannot safely be acted upon. Hence, the prosecution has not unfolded the chain of events as they really happened and must be held to have fail ed to prove its case to the hilt against the accused persons. 13. As stated before, according to the prosecution, there were two phases of the occurrence. During the first phase, the Appellants assaulted the deceased and killed him. Hence, the prosecution has not unfolded the chain of events as they really happened and must be held to have fail ed to prove its case to the hilt against the accused persons. 13. As stated before, according to the prosecution, there were two phases of the occurrence. During the first phase, the Appellants assaulted the deceased and killed him. Sometime later, the brother and other relations of the deceased came upon the scene and there was a free-fight between the two parties in which both sides were injured and p.w.27 was so seriously injured that he fell down on the ground unconscious and had to be carried to the hospital later on. It is also in evidence that this second phase took place at a distance of about 150 cubits from the place where Gopi Singh was lying murdered. As against this, the defence case is that there was only one occurrence. The deceased and p. ws. 21 to 23 and 27 being armed had concealed themselves in the shrubbery near the road to the tank with the object of attacking the accused persons who had gone to the tank to meet the call of nature and when they were returning from the tank, they were attacked by the deceased and the above witnesses forcing them to resist the attack in self-defence. This defence case has been suggested to the prosecution witnesses and has been put forward by the accused persons in their examination u/s 542, Criminal Procedure Code. The prosecution witnesses while speaking of the second phase of the occurrence have denied that they had any weapons in their hands except a lathi in the hand of Hari Singh (p.w.21). P.w.7 contradicts this evidence when he says that he saw a bow and arrow with Jagat Singh (p.w.22). P. ws. 2 and 27 state that the second phase of the occurrence was going on when p.w.7, the European witness arrived on the scene and according to p.w.2, p, w. 7 separated the parties. P.w.7, however, states that on all the three occasions when he went to the place of occurrence, he did not notice any fight between the parties. The place where. P.w.7, however, states that on all the three occasions when he went to the place of occurrence, he did not notice any fight between the parties. The place where. Bhramar (p.w.27) fell down wounded in course of the second phase of the incident, at a distance of about 150 cubits from the place where Gopi Singh was killed, must have been soaked with blood, but since the I.O. did not seize any blood stained earth from the place where p.w.27 was lying, the prosecution is evidently either supporting the truth or concocting a phase. The learned Sessions Judge himself holds that p.ws. 21, 22, 23 and 27 are not giving the true version of the occurrence. Thus, from all these it is impossible to hold that there was a second phase of the occurrence. 14. There are many suspicious features in this case which throw doubt on the bona fides of investigation. It is in evidence that the F.I.R. was lodged at 9 a.m. on 13-8-1963 and the I.O. started for the place of occurrence at 11 p.m. that very night in a jeep, and though the distance from the police station to the place of occurrence was only 12 miles, he thought it fit to stay the night at a place about five miles away from the place of murder and arrived there next morning at 7 a. m. This conduct on the part of the I.O. lends considerable strength to the defence criticism that the police officer had a motive in delaying. investigation. It has been found by the learned Sessions Judge, on the basis of overwhelming evidence on record, that the case-diaries were not prepared on 14.8.1963 on which date they have been shown to have been done. The case diaries from 14-8-1903 to 22-8-1963 were sent to Circle Inspector's office on 31-8-1963 in a bunch which shows that the case-diaries were not being sent dairy and were subsequently prepared. The I.O. (p.w.28) admits that he did not send copies of case-diaries to the S.D.M. and that his forwarding report to the S.D.M. despatched u/s 173(1)(a), Code of Criminal Procedure complied on 15-8-1963 did not contain names of persons who appeared to be acquainted with the facts of the case. This pointedly indicates that the prosecution witnesses whom he had examined by the time he despatched his forwarding-report, were not acquainted with the facts of the case. This pointedly indicates that the prosecution witnesses whom he had examined by the time he despatched his forwarding-report, were not acquainted with the facts of the case. He, however, states that he examined p. ws. 1 and 3 on 14-8-1963 and p.ws. 2 and 5 on 15-8-1963. The very fact that the names of these witnesses were not in the forwarding-report shows that they bad nothing important to say about the occurrence. The learned Sessions Judge, agreeing with the witnesses, believes that the eye-witnesses were not examined on 14-8-1963, but in course of two or three days of the occurrence. Therefore, it is clear that the I.O. has not hesitated to speak falsehood in the Court. Lack of bona fides in the investigation is further demonstrated when the I.O. holds inquest over the deadbody and fills up his inquest report. Evidence shows that the inquest was held at 9 a.m. on 14-8-1963 and the post-mortem examination was made that very afternoon at about 5-10 p.m. and the dead body was in charge of the police from the time of inquest till the time of holding the post-mortem examination. On a comparison of the inquest report (Exts. 10 and 10/1) with the postmortem report (Ext. 7), it appears that there were three injuries on the abdomen of the deceased of which two were penetrating incise-wounds as disclosed from Ext. 7, but these do not find mention in the inquest report. It is difficult to comprehend how the I.O. holding the inquest could miss these apparent injuries on the deadbody. That apart, no spot-map has been prepared which is an unusual and glaring omission in the police investigation. The prosecution case is that there were two phases of the fight and the second phase took place at about 150 cubits off from the place where Gopi Singh was killed, which is the first phase and it is at the latter place p.w.27 fell down bleeding as a result of assault by the accused, and it is from this place that he was removed for medical treatment. If that were so, the earth under the body of the injured must have been soaked with blood. Yet no earth was seized from the place for chemical examination. If that were so, the earth under the body of the injured must have been soaked with blood. Yet no earth was seized from the place for chemical examination. These lapses and omissions in police investigation coupled with the fact that false case diaries have been prepared show that the investigation was not bona .fide and that it is unsafe to hold that the case of the prosecution has been established beyond an reasonable doubt. Reliance in this connection was placed on Santa Singh Vs. The State of Punjab for two purposes, viz., (i) that the testimony of eye-witnesses, if contradicted, by medical evidence cannot be safely accepted; and (ii) that where investigation is not bona ;fide, it is unsafe to bold that the prosecution case has been established beyond reasonable doubt. 15. It appears from evidence that accused Swaran Singh bad three punctured wounds on his body and his arm had been fractured. Accused Alekh Narayan had Buffered three fractures and accused Gyani Kalar had minor injuries. The prosecution has given no explanation as to how and in what manner these injuries were inflicted on the accused. On the contrary, the witnesses for the prosecution who come to prove the case, plead complete ignorance about it. This failure on the part of the prosecution to afford any explanation, much less a reasonable explanation, as to the injuries on the persons of the accused, shakes the very root of the prosecution case. It is well-established that where the prosecution fails to give explanation about the injuries on the accused, whereby a part of the occurrence remains shrouded in mystery, the accused is entitled to an acquittal. It was the bounden duty of the prosecutor to voluntarily offer explanation as to how some of these accused persons received grievous injuries on their bodies; and this omission on the part of the prosecutor, appears to be deliberate. 16. There are also some other minor features in the case which indicate that the prosecution has tried to smudge the true picture of the incident and when that happens, as already stated above, the accused are entitled to the benefit of doubt. 16. There are also some other minor features in the case which indicate that the prosecution has tried to smudge the true picture of the incident and when that happens, as already stated above, the accused are entitled to the benefit of doubt. One such feature is that none of the relations of the deceased Gopi or his servants, who were either witnesses to the occurrence or participants therein, did come forward to lodge the F.I.R. The other feature is that the kerosene tin which had been purchased by the deceased Gopi Singh just before his murder was dropped at the place of occurrence. But the I.O. (p.w 28) has stated that the tin was seized from the house of Gopi Singh and the prosecution has not attempted to unearth as to how and in what circumstances the tin was removed from the place of occurrence to the house of the deceased. The kerosene tin was obviously a material object in the case and this unaccountable removal of the tin from the place of occurrence to the house of the deceased, amounts to tampering with the evidence. There were some key witnesses in the case like Bhola Marwari from whose shop the deceased Gopi is said to have purchased the kerosene tin and other articles and Chunilal Agarwalla and one Jogiram Bramha who, according to p.w.1, were at or near the place of occurrence. AU these three witnesses, by all standards, were important witnesses in the case, but unaccountably they have been omitted from the list of witnesses examined in Court. In the result, therefore, the prosecution must be held to have failed to prove its case beyond an reasonable doubt; and the Appellants are given the benefit of doubt and acquitted. The order of conviction and sentence passed by the learned Sessions Judge on the three accused-Appellants is set aside and the Criminal Appeal is allowed. The three accused- Appellants viz., Swaran Singh, Aelkh Narayan alias Alap Narayan, and Gyani Kalar, are directed to be set at liberty forthwith. Barman, C.J. - I agree. Final Result : Allowed