JUDGMENT 1. - D.B. Criminal Appeal No. 61 of 1977, Har Lal & others and D.B. Criminal Appeal No.104 of 1977 (Jail). Har Lal & others are directed against the judgment passed by the learned Addl. Sessions Judge No. 1, Alwar dated 31st January, 1977. The learned Addl. Sessions Judge convicted the accused-appellants, Har Lal, Sham Lal, and Sardara under section 302/34, IPC and sentenced them to imprisonment for life. The third appeal is directed against the judgment of acquittal, passed by the learned Sessions Judge by his judgment dated State v. Shankar, 13th May, 1978, in Sessions case No 83 of 1977 . 2. In this case, the learned Sessions Judge disbelieved the testimony of the eye-witnesses, including PW/1 Sultan and PW/4 Dayaram. Accused Har Lal, Sham Lal and Sardara were convicted in Sessions Case No 225 of 76 and Shankar was acquitted in Sessions Case No. 83 of 1977. The evidence recorded by the Court below in different cases cannot be read in the other and, as such, we are deciding appeal Nos. 61/1977 and 104/1977 together and will decide the appeal No. 514 1978 separately. 3. The prosecution story unfolded during the trial is that on 26th Sept. 1975, at about 4 p.m., the accused-appellants Har Lal, Sham Lal and Sardara and one Shankar went to the field of Jug Ram and inflicted three injuries on the person of the deceased Jugram. Jugram died on account of the injuries sustained by him. The motive for the commission of the offence has been alleged to be that Shanti, who was the wife of Lalaram son of Phoosa Ram Ahir, was living as wife of the deceased Jugram for the last two-three years. To prove this, the prosecution has produced the affidavit of Shanti verified on 16th Sept. 1975 and has also produced PW/5 Mahendra and PW, 10 Smt. Shanti. So far as the incident is concerned, PW/1 Sultan and PW/4 Daya Ram have supported the case of the prosecution and they appeared as eye-witnesses. PW/3 Kishori, in whose field the occurrence is alleged to have taken place, has appeared as eye-witness. But. they have not supported the case of the prosecution. The learned Sessions Judge convicted the three accused appellants relying on the testimony of PW/1 Sultan and PW 4 Dayaram. The learned Sessions Judge has also disbelieved the testimony of the witness relating to dying declaration. But. they have not supported the case of the prosecution. The learned Sessions Judge convicted the three accused appellants relying on the testimony of PW/1 Sultan and PW 4 Dayaram. The learned Sessions Judge has also disbelieved the testimony of the witness relating to dying declaration. We are of the opinion that the learned Sessions Judge has rightly rejected the testimony of the witness relating to the dying declaration, as the Doctor has himself said that in the instant case the death may be instantaneous and, looking to the nature of the injuries the deceased cannot remain conscious. So far as the recovery of the weapon of offence is concerned, the evidence has been discarded by the learned Sessions Judge who has convicted the accused, appellants on testimony of PW/1 Sultan and PW/4 Dayaram. 4. The learned counsel for the accused-appellants has submitted that the testimony of PW/1 Sultan and PW/4 Dayaram should not be believed. According to him, the medical evidence is inconsistent with the ocular testimony. He further submits that there are contradictions in the ocular testimony and the same are so major that they go to the root of the case. He submits that the conduct of the witnesses is abnormal and they are interested witnesses. 5. On behalf of the State, the learned Public Prosecutor, Smt. Kamla Jain, has supported the judgment of the learned Sessions Judge and submitted that the learned Sessions Judge has rightly relied upon the testimony of PW/1 Sultan and PW/4 Dayaram. She has tried to reconcile the inconsistencies which have been pointed out by the learned counsel for the accused appellants argued that it was not feasible for the witnesses to show from which side of the weapon the injuries have been caused and as such they remained silent on the point. The learned Public Prosecutor has also submitted that the First Information Report has been lodged at 1 P.M. in the hospital and, for this reason the testimony of PW/1 Sultan and PW/4 Daya Ram should be accepted as they have been shown as eye-witnesses in the First Information Report. 6. We have considered the rival contentions of the learned counsel for the accused appellants and the learned Public Prosecutor. Ex. P/10 is the post mortom report. The post-mortem was conducted by Dr. Vishnu Kumar Mathur. He has stated that the deceased sustained 17 injuries, out of which injuries Nos. 6. We have considered the rival contentions of the learned counsel for the accused appellants and the learned Public Prosecutor. Ex. P/10 is the post mortom report. The post-mortem was conducted by Dr. Vishnu Kumar Mathur. He has stated that the deceased sustained 17 injuries, out of which injuries Nos. 1 and 2 are fatal. He has further opined that there was fracture of bone of skull in the region of left nasal sinus. There was a slight blood collection in the remembrance in occipital region. Both the lungs were congested brownish discharge came out on cutting. He has opined that the cause of death was some due to the fracture of base of skull, and multiple abrasions. 7. All the injuries were anti-mortem. He has further stated that fracture of the base of skull can cause instantaneous death. After such a fracture and injury to brain matter, one cannot remain conscious. The injuries sustained by the deceased are as under - 1. Lacerated wound 2.5 x 1 cm x 1 cm on the left side of frontal region bleeding present in the wound. 2. Lacerated wound 2 x 1 - 5 x 1 cm is the centre of cocipiral region bleeding present in the wound. 3. Haematoma 5x4 cm. around the injury No. 4 multiple abrasions 6 cm. x 2 cm. to 2 cm. x 2 cm on the back and right side of neck. 4. Abrasion 10 x 2 cm on the right clavicular region. 5. Multiple abrasions 15x3 cm. to 5 x 2 cm. on the right side of back and right shoulders. 6. Multiple bruises 12x3 cm. to 3 x 2 cm. on its whole of back. 7. Multiple abrasion 6x2 cm. to 2x2 cm on the back and right side of neck 8. Lacerated wound 2 x 1.5 cm x 1 cm on the back of the right upper arm in lower ⅓ bleeding present in the wound, 10. Multiple abrasions 5x2 cm. to 2 x 2 cm. on the left upper arm. 11. Escoptomo 10 x 10 cm. on the back of left hand. 12. Lacerated wound 2 x 1.5 on the back of left upper arm, in the middle 1/4 bleeding was present. 13. Multiple abrasions 3 x 1.5 cm. to 1.5 x 1 cm on the chest wall. 14. Multiple abrasions and bruises 3 x 1.5 to lxl cm. 11. Escoptomo 10 x 10 cm. on the back of left hand. 12. Lacerated wound 2 x 1.5 on the back of left upper arm, in the middle 1/4 bleeding was present. 13. Multiple abrasions 3 x 1.5 cm. to 1.5 x 1 cm on the chest wall. 14. Multiple abrasions and bruises 3 x 1.5 to lxl cm. on the abdominal wall. 15. Two abrasions 11x3 cm. and 5x3 cm. on the lateral surface of left leg in upper ⅓. 16. Multiple abrasions 6x3 cm. to 3 x 1 cm. on the front and lateral surface of right thigh. 17. Bruise 3x3 cm. on the left cheek. 8. From a perusal of the injuries it is clear that all the injuries were caused to the deceased with the blunt weapon. The prosecution has also come with a case that Har Lal, Shamlal Shankar, and Sardara were giving beating to the deceased in the field of Jugram. It is also stated that Harlal had a seela in his hand and Shamlal had a Kulhari (axe). So far as Shanker and Sardara are concerned, it has been stated in the First Information Report they had Lathis. PW/1 Sultan who is the author of the First Information Report, has stated that all the four accused were giving beating to the deceased. PW/4 Daya Ram has stated that all the four accused-appellants have participated in the beating and they were giving beating one after another simultaneously. The learned counsel for the accused appellants submits that even if the version of the prosecution is accepted on its face value that at least there should be some injuries from the sharp side of the weapon. The prosecution has come with a case that one person had seela and the other persons had an axe. The prosecution witnesses have also not stated that the blunt side of the axe was used. Mr. Rastogi appearing on behalf of the accused appellants submits that if there was an intention to commit murder and if one wants to use a weapon, then he will use it from the sharp side in the normal way unless the intention is otherwise, or the injury has been caused accidentally from the back side of the weapon. Mr. Rastogi appearing on behalf of the accused appellants submits that if there was an intention to commit murder and if one wants to use a weapon, then he will use it from the sharp side in the normal way unless the intention is otherwise, or the injury has been caused accidentally from the back side of the weapon. He further submitted that though there are four accused and, it is alleged that all the four accused have participated and inflicted injuries and on an average four injuries can be attributed one to each and from each weapon. Under these circumstances, at least, there should be one injury, if not more on the person of the deceased caused by sharp weapon so all the weapons were used in the commission of the offence. He submits that the reasons have been planted and, for this reason the testimony is inconsistent with the post-mortem report Ex. P/10 and the statement of Dr. Vishnu Kumar Mathur (PW/9) should not be relied upon. Mrs. Jain submits that it was not feasible to see as to from which side of the weapon the injury has been caused. She submits that ocular evidence should be relied on and the medical evidence should be discarded so far as the nature of the injury is concerned. Mr. Rastogi has cited before us the case of Hallu v. State of W.B, AIR 1974 SC 2936 in which their lordships of the Supreme Court have held as under - "According to the High Court axes and spear may have been used from in blunt side and therefore the evidence of the eye-witnesses could safely be accepted. We should have thought that normally when the witness says that an axe or a spear is used there is no warrant for supposing that what the witness means is that the blunt side of the weapon was used. If that be the implication it is the duty of the prosecution to obtain a clarification from the witness as to whether a sharp-edged or a piercing instrument was used as a blunt weapon." The learned Public Prosecutor has also cited before us the case of Punjab Singh v. State of Haryana, AIR 1984 SC 1233 . In the above case, the Addl. In the above case, the Addl. Solicitor General pointed out that if the medical evidence is properly read, which only shows that two alternatives are possible, but not inconsistent. The Supreme Court accepted the argument of the learned Addl. Solicitor General and held that there is no inconsistency and accepted the ocular evidence. It is understandable that if one blow is given from a sharp weapon it is accidental that the blunt side may cause the injury and the sharp side may miss, but when two persons are using sharp-edged weapon and are causing injuries after injuries, it is natural that there should be at least one or two injuries which should be from the sharp side of the weapon. In the instant case, out of seventeen injuries sustained by the deceased, there is not a single sharp edged injury. Apart from that, there is one important factor which is also evident from a perusal of the post-mortem report. A number of injuries are of the dimension exceeding 5 cm. in length. Some injuries are of 15 cm. and 10cm. in length, some of which are injuries 5 cm. in length. This goes to show that mostly lathies have been used. Mr. Rastogi, learned counsel for the accused appellants, has also invited our attention to the injuries and submitted that from a perusal of the fatal injuries, Nos. 1 and 2, one cannot say that these injuries have been caused by axe and, especially from the blunt side of the axe. The medical evidence and the nature of the injuries sustained by the deceased are sufficient for creating doubt in the mind of the Court. 9. The other point which has been argued by the learned counsel for the accused-appellants is that there are contradictions in the testimony of the witnesses, PW/1 and PW/4 He has further stated that the statement of PW/1, Sultan, who stated that he reached the field before half an hour of the incident and he left the field for taking a piece of wood from the field, which is of a distance of half a mile. He has further deposed that he and Dayaram did not come in the field together. However, he changed his statement and stated that he went directly to the field and thereafter he came with Maz in his field. He has further deposed that he and Dayaram did not come in the field together. However, he changed his statement and stated that he went directly to the field and thereafter he came with Maz in his field. He has further stated that no one can hear the noise and cry of the occurrence from the field of Sohan Lal and the occurrence is not visible from there. Mr. Rastogi has also invited our attention to the fact that Dayaram (PW/4) has stated in his statement that Jug Ram cried and asked who is the person who is giving him beating. Then Jug Ram said that Har Lal, Sham Lal, Sardara and Shankar are giving beating. It is very surprising that Jugram was in his field and the occurrence has also taken place in his field, and he could not see the occurrence and the persons who were in the other fields had an opportunity to see the occurrence. The very fact goes that Jug Ram who is the author of the FIR has been tried to be mentioned as an eye-witness in the First Information Report and the learned Lower Court was justified in rejecting the testimony of Jug Ram. This part of the statement of Daya Ram creates suspicion in the mind of the Court whether the persons who were of a distance in the other fields were in a position to see the incident, especially when Jug Ram could not see. Mr. Rastogi has invited our attention to the statement of Daya Ram (PW/4) and submitted that Jug Ram and Kishori have not supported the case and this witness has stated that they ride on the camel and left the field after seeing the occurrence. Mr. Rastogi has further submitted that the incident took place in the field of Jug Ram which is an admitted position. The learned counsel for the accused-appellant has also invited our attention to the statement of Daya Ram (PW/4). This witness has stated that all the persons were giving beating to the deceased in his own field and thereafter left the field of Jug Ram on the advice given by Jug Ram. There should be marks of incident. The learned counsel for the accused appellants has also invited our attention to Ex. P/2 and submitted that there should be marks of quarrel in the field. There should be marks of incident. The learned counsel for the accused appellants has also invited our attention to Ex. P/2 and submitted that there should be marks of quarrel in the field. He further submitted that crop of bajra was there and, if the incident has taken place as alleged by the prosecution, then there should be damage to the crop of bajara, and there should marks of quarrel also. He has further assailed the judgment of the Court below and submitted that the possibility of the accident might taking place somewhere in a different way cannot be ruled out and submitted that the earth which was taken from the alleged place of occurrence could not be proved by the prosecution to be blood-stained earth. He has also invited our attention to end and submitted that this statement has been recorded by the investigating office at the hospital at about 1 p. m. on 26th September, 1975, wherein it is alleged that the incident has taken place at 4 a. m. It has also come on record that the deceased was shifted to the hospital and during the process of shifting the deceased died in the way. PW/7 Shiv Ram has stated that they left for the hospital and in the way the deceased died. It has also come on the record, that they reached the hospital at about 10 and subsequently, Jitu has not come in the hospital at about 11-12 with the deceased. The dead body was handed over to the Doctor and the Doctor declared him dead. Then the Doctor sent a letter to the Police authorities informing about the fact that a dead body has been brought in the hospital and there is every likelihood that the death may be a case of some quarrel. No report has been forwarded by the Doctor. Mr. Rastogi submits that there is possibility that this report might have been prepared subsequently. He has also invited our attention to the fact that in the case of Shankar, which was tried by the Court below out of two eye-witnesses namely, PW/1 Sultan and PW/4 Dayaram has not been believed and Shankar has been acquitted, but that cannot be considered. Rastogi submits that there is possibility that this report might have been prepared subsequently. He has also invited our attention to the fact that in the case of Shankar, which was tried by the Court below out of two eye-witnesses namely, PW/1 Sultan and PW/4 Dayaram has not been believed and Shankar has been acquitted, but that cannot be considered. In the instant case, as we have seen, the file of this case, and taking into consideration submissions made by Shri Rastogi, we are of the view that the medical evidence is not consistent with the ocular evidence. There are also contradictions in the statements of the witnesses. It would not be safe to maintain the conviction of the accused-appellants on the solitary evidence of the two eye-witnesses PW/1 Sultan and PW/2 Dayaram. We extend the benefit of doubt in favour of the accused-appellants. We hereby set aside the judgment of conviction and sentence passed by the trial Court on 31st January, 1977. The accused may be set at liberty if not required in any other case. Shri Rastogi submits that the accused-appellants are on bail and their sentence has been suspended by this Court. The accused need not surrender. Their bail bonds are cancelled. 10. We have perused the statements of PW/2 Vishnu Kumar Mathur, PW/4 Daya Ram PW/5 Sultan and other witnesses. The evidence of the Doctor is clear and it has been specifically mentioned that the injuries sustained by the deceased were by blunt weapon. PW/4 Dayaram and PW/5 Sultan have come with a case that the two persons had sharp weapons and injuries have been inflicted with the sharp weapon. Thus, there is inconsistency between the medical evidence and the ocular evidence. The Learned Judge found that the evidence is not reliable and has acquitted the accused. We are of the view that the learned Sessions Judge has rightly rejected the evidence. If two views are possible, it is always safe to accept the view which is in favour of the accused. We do not find any force in this appeal. The appeal is dismissed.Conviction Set aside and Appeal allowed. *******