( 1 ) THIS Criminal appeal is brought from the judgment of the Sessions judge, Bidar, convicting the two accused-Baswarajappa and Sharnayya -for the offence under Ss. 307 and 447 read with S. 34 of the I. P. Code and sentencing them each to undergo 4 years rigorous imprisonment under S. 307 and 3 months rigorous imprisonment under S. 447-the two sentences to run concurrently. ( 2 ) THE prosecution case was, that Baswarajappa (A-1) assaulted tukaram (P. W. ,4) with a stick on 13-10-1975 and caused some injuries to htm. Tukaram reported that incident to Manikappa (P. W/8) and the latter suggested that a report should be lodged against A-1. It wap stated that both Baswarajappa (A-1) and Sharnayya; (A-2) did not like the suggestion of P. W. 8 for having instructed P. W. 4 to lodge the report for that incident. Therefore, on 14-10-1975 at about 8 a. m. when P. W. 8 was working in his sugar cane field, these two accused came armed with axes MOs. 4 and 5, assaulted PW. 8 and caused him multiple injuries. After the assault P. W. 8 fell down with injuries inside his field and the witnesses-Laxman, P. W. 5; Vaijinath, P. W. 6; and Vithal, P. W. 7- went and saw him there. According to P. W. 8 the incident was seen by ajmeer Bee. P. W. 9 a girl of 12 years who was said to be grazing her buffaloes and one another Thukaram (P. W. 10) who had gone to collect leaves for his goats. Siddappa (P. W. 12) the brother of the injured brought him to the hospital at Bidar. Dr. S. Kalavathi (P. W. 11) examined the injured at about 11-30 a. m. on that date. It was stated in the injury report of the Doctor, Ex. P-5, that one lacerated wound 5" x 4" x 1" was found over the lateral aspect of the right radius and ulna with muscles exposed. Multiple fractures of both radius and ulna were discovered as a result of that wound. Besides this lacerated wound, 7 other incised wounds were detected by the doctor. One of the wounds at No. 5 was the incised wound extending from the back of the left ear to the middle of the neck with muscles exposed, area 5" x 3" x 2". Besides this lacerated wound, 7 other incised wounds were detected by the doctor. One of the wounds at No. 5 was the incised wound extending from the back of the left ear to the middle of the neck with muscles exposed, area 5" x 3" x 2". Meanwhile, p. W. 12 had also gone to the police station at Bidar and instituted the first information report-Ex. P. 6. It was recorded at 12-45 a. m. on that date. However, the F. I. R. reached the Magistrate at Bidar only on the next day at 11-30 a. m. M. O. 4 and M. O. 5 the two axes with which the accused were stated to have assaulted P. W. 8 were subsequently recovered by the police Sub-Inspector, P. W. 14, at the instance of the accused. The necessary recovery memos were premred and panch witnesses stated about that recovery. After the usual investigation a case of trespass under S. 447 and attempt to murder under S. 307 of the I. P. Code was instituted agajnst the two accused. ( 3 ) THE prosecution produced 14 witnesses, of whom PW. 8 was the injured and PWs. 9 and 10 were the eye witnesses. Tukaram, PW. 4, was produced who stated about the motive that prompted the two accused to commit the assault. PWs. 5, 6 and 7 were produced as they had come to the spot immediately after the incident. PW. 11, Dr. S. Kalavathi came to prove the injuries. Siddappa, PW. 12, the brother of the injured was also examined. Besides these witnesses Lingangouda, PW. 13 and c. Mohammed Ismail, PW. 14 were the two Sub-Inspectors of Police who were the Investigating Officers. ( 4 ) THE defence of the two accused was that there were communal disputes between the lingayats and kurubarg in the village. The accused belonged to the community of lingayaths, while the complainant comes from the family of gurubars. The suggestion was that due to that communal animosity the two accused were implicated and the immediate reason for implication was a bund dispute that existed between PW. 8 and these accused. However, the accused did not produce any witnesses in defence. ( 5 ) THE learned Sessions Judge believed the prosecution version and convicted and sentenced the two accused in the manner stated above. They felt aggrieved of the decision and preferred the present appeal. 8 and these accused. However, the accused did not produce any witnesses in defence. ( 5 ) THE learned Sessions Judge believed the prosecution version and convicted and sentenced the two accused in the manner stated above. They felt aggrieved of the decision and preferred the present appeal. ( 6 ) THE foremost contention of Sri M. M. Jagirdar, the learned counsel for the appellants centered round the serious medical discrepancy that was detected between the direct version of the 'witnesses and the expert version of the medical officer. Basing his contention on the observation of their Lorsdhip in Ram Narain v. State of Punjob, AIR 1975 SC 1727 . the learned Counsel submitted thaj in a case where the direct evidence is not supported by the expert evidence, then it must be held that the evidence is wanting in the most material part of the prosecution case and it would be difficult to convict the accused on the basis of such evidence. It could not be disputed that if the evidence of the witnesses for the prosecution was totally inconsistent with the medical evidence, that was a most fundamental defect in the prosecution case, and unless reasonably explained it was sufficient to discredit the entire case. In that connection the learned Counsel pointed out, that there were aspects, of two serious discrepancies between the direct version and the expert version of the medical officer. The first discrepancy pertained to the lacerated wound, injury no 2 which caused much of the damage because the case under S. 307 of of the IPC essentially depended upon that injury. Except injury No. 5 the rest of the incised wounds were small and superficial as adverted to by dr. S. Kalavathi, PW. 11. Injury No. 2 being the lacerated wound according to dr. S. Kalavathi caused the multiple fractures and according to the eye witnesses PWs. 8 and 9, the injured had placed his hands on his head and thereafter blows were administered by the two axes MOs. 4 and 5. If that was a fact, the injury No. 2 being a lacerated wound could not have been caused. The eye witnesses viz, the injured PW. 8 and the other two PWs. 9 and 10 have all stated that blows were administered by axes and according to the prosecution the two accused had arrived with the intention of committing murder. If that was a fact, the injury No. 2 being a lacerated wound could not have been caused. The eye witnesses viz, the injured PW. 8 and the other two PWs. 9 and 10 have all stated that blows were administered by axes and according to the prosecution the two accused had arrived with the intention of committing murder. That being so, it is difficult to believe that the blows by axes were not administered in their normal manner, but wooden handles of the axes were utilised for causing injury No. 2. None of the three witnesses even stated for that abnormal user of the two axes. As such, when there was absolutely no suggestion by the eye witnesses themselves that the wooden handles of the axes were used, I fail to understand how could the Sessions Judge, adopt that explanation to explain injury No. 2. But, this is what the learned Sessions Judge has done and to my mind the medical discrepancy is not reasonably explained. The other aspect, in this connection, pointed out by Sri M. M. Jagirdar pertains to injury No. 5 for which some intensive cross-examination was conducted upon Dr. S. Kalavathi, PW. 11. This is what the doctor stated for that injury.-" It is possible to trace out the dragging of the weapon. At the place of drag lacerations will be found on the edges of the wound. In the case of injury No. 5 there was no dragging. The length of the sharp edges of these two axes MOs. 4 and 5 is not more than 3". It is true that injury No. 5 could not be caused by the axes MOs. 4 and 5. If twice used at the same spot it is possible to cause such injury by two hits. The two blows will have to be dealt at the same place. Slight deviation can be traced I out. Injury No. 5 is not possible by one stroke and that too when the assailant is standing in front of the victim while dealing that blow. "dr. S. Kalavathi, therefore, was emphatic, when she stated, that there was no trace of dragging of the weapon at injury No. 5 because otherwise lacerations at the edge? would have been found. She was again emphatic that injury No. 5 could not be caused by the axes MOs. 4 and 5. "dr. S. Kalavathi, therefore, was emphatic, when she stated, that there was no trace of dragging of the weapon at injury No. 5 because otherwise lacerations at the edge? would have been found. She was again emphatic that injury No. 5 could not be caused by the axes MOs. 4 and 5. She further stated that if at the same spot two blows were administered one after the other, perhaps injury No. 5 could have been caused. It is rightly contended by Sri M. M. Jagirdar, the learned Counsel for the appellant that it would be somewhat improbable to believe that when the victim was all along in the process of saving the assault and the two accused were supposed to be assaulting him from all directions; any part of the body of the victim was so much stationary, that two repeated blows were inflicted at one and the same place. The chances are almost nil although a possibility may not be ruled out. Criminal cases are not decided on possibilities but on probabilities. It may, therefore, be stated that the explanation offered for this discrepancy relating to injury No. 5 could not be probable. Dr. S. Kalavathi was emphatic when she stated that due to the length of the blades of MOs. 4 and 5 a wound of the length of 5" could not be caused. All this leads us to a state of extreme doubt and the benefit will have to be given to the accused. According to Sri M. M. Jagirdar because of this acute variation between the version given by the eye witnesses and the description of wound given by Dr. S. Kalavathi, the medical discrepancy of a serious nature developed. The eye witnesses, it appears, were not stating the whole truth and the incident itself might have taken place in some other manner. In that connection, the learned counsel rightly pointed out that the delay caused, for the FIR having reached the Magistrate, assumed some importance. Although the FIR was lodged at 12-45 P. M. on 14-10-1975 (Ext. PG), yet the same could reach the Magistrate at 11-30 A. M. on 15-10-1975. The Magistrate is stationed at that very place where the FIR was lodged. The police Sub-Inspector, pw. 13, attempted to give an explanation for the delay. Although the FIR was lodged at 12-45 P. M. on 14-10-1975 (Ext. PG), yet the same could reach the Magistrate at 11-30 A. M. on 15-10-1975. The Magistrate is stationed at that very place where the FIR was lodged. The police Sub-Inspector, pw. 13, attempted to give an explanation for the delay. But the difficulty , is that he was supposed to write about that explanation in his station diary, which he never did. According to the police Sub-Inspector, he had taken care to go to the Magistrate along with the FIR no sooner it was "written by him at the police station. He could not find the Magistrate at his residence and so he had to come back. Thereafter, he attended to other duties connected with the investigation. He could take the FIR next time to the Magistrate only on,15-10-1975 at 11-30 A. M. Unfortunately all that explanation remained at the oral stage and some record in respect thereof should have been maintained at the police station. When the police Sub-Inspector departed from the police station for this very purpose, he was bound to make the entry in the station diary, which he never did. That apart, he did not submit a written explanation to the Magistrate why the FIR could not reach him on very first day. Such an explanation was rather necessary. The learned counsel, therefore, rightly contended that whatever explanation the investigating Officer, now gives at a later date would not be of much use to the prosecution. As I have stated before the mariner in which the assault was administered itself was rendered doubtful due to the medical discrepancy and that doubt is further deepened by another feature concerning the FIR which was delayed and not sent to the Magistrate at the earliest opportunity. ( 7 ) FROM the statements of PWs. 4, 5, 7, 8 and 10 it is evident tha,t the suggestions were made regarding the communal enmities between the lingayaths and the kurbars. The accused also stated that there was a "bund" dispute between them and PW. 8. From this, it was suggested that it was quite probable that the incident took place somewhere else in the dark hours and the beating was administered not in the manner as stated to by PWs. 8, 9 and 10. The accused also stated that there was a "bund" dispute between them and PW. 8. From this, it was suggested that it was quite probable that the incident took place somewhere else in the dark hours and the beating was administered not in the manner as stated to by PWs. 8, 9 and 10. It appears and probable that sticks were used, so that the lacerated wound injury No. 2 was caused. It was an effective blow as it resulted in the multiple fractures. Besides the sticks, some sharp edged weapons other than MOs. 4 and 5 were also used to cause the incised wounds. When the witnesses played upon their imagination it is difficult to say where the realm of imagination ended and where the realm of reality began. The eye witnesses, it appears, discredited themselves because of the medical discrepancy as pointed out above. No explicit reliance could be placed upon this version of the incident. ( 8 ) THE learned Counsel further pointed out that from the statement of PW. 8, it appears, one Shiromani was his servant and questions were asked regarding him that he left the village on the very date of incident and that his whereabouts were unknown. It was stated that perhaps shiromani might have been involved in this incident of beating. It was specifically suggested to PW. 8 that he was assaulted in dark hours by some persons and that these two accused were implicated because of enmities. ( 9 ) THE upshot of all that I have stated above is that the prosecution case could not inspire that much confidence. The benefit of a reasonable doubt ought to have been extended to the two accused. The appeal is therefore allowed and the conviction and sentence passed under Ss. 307 and 447 read with S. 34 of the IPC are set aside. These accused are on bail and their bonds are cancelled. --- *** --- .