JUDGMENT 1. - These two criminal appeals are directed against the judgment and order dated 13th December, 1988 passed by the Special Judge, Dacoity Affected Area & Additional Sessions Judge, Karauli in Sessions Judge No. 3/1988 hereby appellant Ram Charan (in D.B. Criminal Appeal No. 43/1989) was convicted under Sec 302 IPC and accused Rameshwar was convicted under Section 324, IPC. Ram Chara was sentenced to imprisonment for life and a fine of Rs. 500/- and in default of payment of fine to further undergo imprisonment for three months. Raraeshwa was sentenced to one years rigorous imprisonment and a fine of Rs. 100/- and in default of payment of fine to undergo further imprisonment for one month The rest of the accused persons namely, Jiwan Lal, Kanhaiyalal Hem Rai Sure h and Jagdish were acquitted by giving them the benefit of doubt. Since both the appeals are directed against the same judgment given in Sessions Case No 3/198xe by the aforesaid Court of Special Judge, Dacoity Affected Area and Addl. Sessions Judge, Karauli, both these appeals are being disposed of by this common judgment. 2. Appeal No. 43/1989 is the appeal filed by Ram Charan against hi conviction and sentence; as aforesaid; whereas appeal No. 240/1989 has been by the State of Rajasthan initially against Ramesh, Jagdish, Jiwan Lal, Kanhaiyalal Raj and Suresh. However, in this matter in State Leave to Appeal, on July, 1989, the Court refused to grant leave to appeal against Rameshwar, respondent No. 1 who had been convicted under Section 324, IPC and the Court did not find any substance in the leave to appeal against respondents No. 2 to 5 and. thus, the leave to appeal was refused against respondents No. 1 to 5. Hence, State appeal is against Suresh only. Thus, finally we are now concerned with the appeal of Ram Charan i.e. D.B. Cr. Appeal No. 43,89 and State Appeal against Suresh only in Cr. Appeal No. 240 of 1989. 3. The facts of the case may be succinct stated as under : 4. On 14th May, 1987, a report was lodged by one Khem Raj at 6.30 p. m. at Police Station Sapotra with regard to the alleged incident which had taken place at 4.30 p. m. on the same date in the village Badoda Gajrajpal. As per this report Ex. On 14th May, 1987, a report was lodged by one Khem Raj at 6.30 p. m. at Police Station Sapotra with regard to the alleged incident which had taken place at 4.30 p. m. on the same date in the village Badoda Gajrajpal. As per this report Ex. P/1 Bhola Ram son of Chitar Lal, the cousin of Khem Raj was married on Akhateej i. e. on 1st May, 1987 with Mithilesh daughter of Kanhaiyalal resident of Khandar. After the marriage, brother of the bride Mithilesh namely Suresh came down from Khandar to Badoda Gajrajpal on 5th May 1987 at the place of Bhola to take back bis sister namely Mithilesh; but Ram Charan son of Pooran Lal Joshi detained Suresh and Mithilesh at his place. It has been further stated that Suresh was told that the bride Mithilesh would not stay at anybodys house and that Suresh should straightway go to Khandar. Ram Charan felt annoyed on this and said that he would see them after three days & allowed Mithilesh to go. Thereafter on 12th May, 1987 Suresh, Hem Raj. Kanhaiyalal, Jiwan with family had come to the house of Ram Charan for some family feast (dharam). On 14th May, 1987 at 4.30 p.m. Ram Charan, Rameshwar, Jagdish, Hem Raj, Kanhaiyalal and Jiwan Ram after conspiring jointly came armed with Dharia, sword and lathi to the house of Khem Raj entered the house and while abusing said that catch hold of them and father of Khem Raj was dragged out and Ram Charan son of Pooran Lal inflicted a dharia blow on the head of Khem Rajs father. Suresh son of Kanhaiyalal resident of Khandar made another attack with sword and the father of Khem Raj became unconscious. Thereafter Hem Raj son of Jiwan Ram r/o Khandar attacked Bhola on his bands with sword and Jagdish sen of Pooran gave lathi injuries on the back and feet of Khem Rajs wife Shakuntala and Rameshwar son of Pooran Lal attacked Khem Rajs Baba Mool Shankar on his head while Mool Shankar was sitting and Mool Shankar became un-conscious. Kanhaiyalal son of Bhonrilal resident of Khandar gave lathi blows on the foot and back of Khemrajs uncle Ghanshyam. While Khem Raj was near the corpose of his father (Gyani Ram), Jiwan son of Bhonri Lal resident of Khandar gave three lathi blows in the hand and back of Khem Raj. Kanhaiyalal son of Bhonrilal resident of Khandar gave lathi blows on the foot and back of Khemrajs uncle Ghanshyam. While Khem Raj was near the corpose of his father (Gyani Ram), Jiwan son of Bhonri Lal resident of Khandar gave three lathi blows in the hand and back of Khem Raj. Thereafter residents of village, namely Prabhu Lai. Bhcron Singh son of Kedar Lal, Bacchu Singh, Rajendra and other residents of the village came to their rescue and brought Khem Raj along with his unconscious father and all other injured persons in the tractor of Prakash Pal and while they were on their way to Sapotra in the tractor father of Khem Raj viz. Gyani Ram died and that the corpse of his father was lying in the tractor. On the basis of this written report, made by Khem Raj son of Gyani Ram, Cr. Case No. 32/198/ was registered at the police Station. Sapotra under Sections 147, 148,149.452.323, 324 and 302, IPC, after recording Khem Rajs version that his Baba Mool Shankar was injured in the hospital at Sapotra and Bhola, Ghanshyam Ram Prasad and Shakuntla had also sustained injuries. Ex. P/2 is the report which was written in the Police Station. After investigation, a challan was filed against the seven accused persons namely Ram Charan, Rameshwar, Jagdish, Jiwan Lal. Kanhaiya Lal, Hera Raj and Suresh. The report framed charges under Sections 452. 148, 302 read with section 323, 324 and 149, IPC against Ram Charan and the rest of the accused were charged under Section 452, 148, 302, 149, 323 and 324/149, IPC. The accused persons denied the charges. 5. In the trial 19 witnesses were examined in support of the prosecution case and 38 documents were exhibited. Out of these 19 witnesses PW/1 Shakuntala, PW/2 Mool Shanker, PW/3 Khem Raj, PW/4 Bhola, PW/5 Ghanshyam, PW/6 Bachu, PW/7 Ram Prasad PW/9 Rajendrapal, PW/17 Kaidar, PW/14 Prabhu, PW/15 Man Mohan and PW/16 Bheru Lal are eye-witnesses; but PW/13 Kaidar. PW/14 Man Mohan and PW/IO Bheru Lal were declared hostile. PW/8 Ram Sahai is the witness to whom the corpse of Gyani Ram was handed over. PW/10 Prakash Pal is the witness who carried Gyani Ram and other injured family members in his tractor from Badoda Gajrajpal to Sapotra and in the way near Zirota river Gyani Ram died. PW/14 Man Mohan and PW/IO Bheru Lal were declared hostile. PW/8 Ram Sahai is the witness to whom the corpse of Gyani Ram was handed over. PW/10 Prakash Pal is the witness who carried Gyani Ram and other injured family members in his tractor from Badoda Gajrajpal to Sapotra and in the way near Zirota river Gyani Ram died. PW/11 Shiv Mohan and Madan Pal are the witnesses in whose presence the place of occurrence was inspected and site-plan Ex. P/5 was prepared and blood-smeared sand was taken. PW/l7 Ramswaroop Meena is the Doctor who had conducted the post-mortem of deceased Gyani Ram and who had examined the injuries of Shakuntala, Ram Prasad, Ghanshyam, Mool Shankar, Bhola and Khem Raj. PW/19 Shri Narain is the Head Moharir of the Police Station, Sapotra with whom the blood-stained cloths of the deceased Gyani Ram, blood-stained sand and the weapons used in the offence which were recovered, were kept in the sealed packets in the Malkhana of Police Station, Sapotra, which were later on sent for chemical examination. PW/18 Tara Singh is the Investigating Officer who filed the challan. The statement of the accused persons were recorded under Section 313, Cr. P. C. and Ram Charan. and his brother Rameshwar and Jagdish said that Mithilesh wife of Bhola and Suresh brother of Mithilesh are sister-in-law and brother-in-law (Sala-Sali) of accused Ram Charan and Ram Charan had served food to them. Thereafter they went to Khandar. Ram Charan had given a family feast (Dharam-ka-khana) and the same was attended by Kanhaiyalal, Jiwan. Suresh. Hem Raj with family and at the time of the incident Ram Charan, Rameshwar and Jagdish. all the three brothers, had gone to the river for both and they do not know as to what happened in their absence. Ram Charan never got the dharia recovered from his house nor Rameshwar got the sword recovered, nor the lathi was got recovered by Jagdish. It was stated that Prabhu Nath was annoyed from accused Ram Charan because of some financial dealings, and all the three accused persons have stated that they were detained at the Police Station, Sapotra on 14th May, 1987, itself and were later on produced before the Court. The other four accused persons who are residents of Khandar i.e. Jiwan. It was stated that Prabhu Nath was annoyed from accused Ram Charan because of some financial dealings, and all the three accused persons have stated that they were detained at the Police Station, Sapotra on 14th May, 1987, itself and were later on produced before the Court. The other four accused persons who are residents of Khandar i.e. Jiwan. Kanhaiyalal, Hem Raj and Suresh stated that sister of Suresh i.e. daughter of Kanhaiyalal was married to Bhola and because of their relations with Ram Charan, they all had come with family from Khandar to Badoda Gajrajpal for the feast. The prosecution witnesses Rajendra, and Bachu Singh were annoyed from they because of some family dispute going on regarding partition. Bachu Singhs house is the mothers place of Khem Raj. On 8th May, 1987, accused Suresh had left with Mithilesh for Khandar from Badoda Gajrajpal and near the river the cousin sister of Suresh who is wife o1 Ram Charan and who had taken the accused Suresh in adoption had met them with Ram Charan and she told Suresh and Mithilesh that they should go after takin food although, during those days son of Suresh was sick, but he could no L avoid the request of his sister and, he along with Mithilesh took food at the house of Ram Charan. The complainant Khem Raj then lost temper upon Suresh and said that why did he take food with Ram Charan. Suresh told that it was his sisters place and further that he had already been insulted in Khem Rajs place. Thereafter accused Suresh along with his sister Mithilesh went to Khandar. These four accused persons stated that at the time of the incident Ram Charan and his brother Rameshwar and Jagdish had gone to river for bath. The complainant had told all these four accused persons of Khandar not to keep relations with Ram Charan nor Bholas wife Mithilesh should go to Ram Charans house and they said that both are sisters and if they have mutual love, she will go; stop if you can. Thereupon the complainant party came with swords at the chabutara of Ram Charan and gave beating to the accused persons and in this fight, all these four accused persons of Khandar i.e. Jiwan, Kanhaiyalal. Hem Raj, and Suresh who were all unarmed, sustained injuries. Dr. Nand Lal (DW1) and Dr. Thereupon the complainant party came with swords at the chabutara of Ram Charan and gave beating to the accused persons and in this fight, all these four accused persons of Khandar i.e. Jiwan, Kanhaiyalal. Hem Raj, and Suresh who were all unarmed, sustained injuries. Dr. Nand Lal (DW1) and Dr. Ramesh Chandra (DW2) had also been produced to prove injury reports of these four accused persons. Dr. Nand Lal proved the injury report Ex.D 10 and Dr. Ramesh Chandra has proved the injury reports Ex.D.11 to Ex.D.13. The statements of the prosecution witnesses Shakuntala, Khem Raj, Bhola, Ghanshyam, Bachu, Ram Prasad, Rajendra and Prabhu were also recorded under Section 161, Cr P C., which were exhibited as Exts D. 1 to D. 8. The accused party had also filed a complaint against the complainant party in the Court of Munsiff & Judicial Magistrate, Karauli with regard to the same incident, the certified copy of which was exhibited as Ex.D 9 By way of an application under Sec 311, Cr.P.C. some documents were also filed in relation to this case, including the photostat copy of the FR given in the case filed by the accused persons The Special Judge. Dacoity Affected Area & Addl. Sessions Judge, Karauli in Sessions Case No. 3/ 988 by his judgment and order dated 13th December, 1988 acquitted Jiwan, Kanhaiyalal, Hem Raj. Suresh and Jagdish by giving benefit of doubt. Ram Charan was convicted under Section 302, IPC and was acquitted of other offence by giving of doubt Accused Rameshwar was also acquitted by giving benefit of doubt of other offences, but was convicted under Section 324, IPC. Accused Ram Charan was sentenced to imprisonment for life for the offence under Section 302, JPC with a fine of Rs. 500/-, in default of which, to undergo further imprisonment for three months. Rameshwar was sentenced to one years rigorous imprisonment for the offence under Section 324, IPC and a fine of Rs. 100/- in default of which to further undergo imprisonment for one month. The Court gave the benefit of Section 428, Cr.P C. to Rameshwir and on the basis of the record found that he had already remained in jail for a period of more than one year and therefore, ordered that he may not be sent to jail and be released on the sentenced already undergone. 6. The Court gave the benefit of Section 428, Cr.P C. to Rameshwir and on the basis of the record found that he had already remained in jail for a period of more than one year and therefore, ordered that he may not be sent to jail and be released on the sentenced already undergone. 6. Now, there is an appeal No. 43/1989 filed by Ram Charan before us and the other is State Appeal No. 240/1989 against Suresh. 7. It is established that the incident took place on 14th May, 1987 in Badoda Gajrajpal at 4.30 p.m. in which Gyani Ram died and the prosecution witnesses had sustained injuries and that Gyani Ram died because of injuries sustained in this incident. There is no appeal before us against the acquittal of Ram Charan of offences other than the one under Section 302, IPC for which he has (illegible) and the story of house trespass, unlawful assembly, common object and conspiracy has already been disbelieved. There is no appeal against the acquittal of Ram Charan from offences under Sections 145, 148 and 149, IPC and leave to appeal against five out of remaining six accused has already been refused and hence the scope of appeal against Suresh is also limited. 8. It has been argued on behalf of the appellant Ram Charan that the prosecution has changed the case materially during the course of trial and in support of this argument he has submitted as under:- (a) As per the first information report, Gyani Ram was given two injuries, one by Ram Charan with dharia and the other by Suresh with a sword. In the trial, the injury by Dharia only has been said and no witness has said that Ghani Ram was given any injury with sword by Suresh. As per the medical report there is one injury 22 cm x 2.7 cm. Even the author of the FIR namely Khem Raj (PW/3) who had mentioned in the FIR that Suresh had attacked his father with sword, has not deposed that any injury was caused to his father by Suresh with sword. In his statement, he stated that when Suresh wanted to attack his father with sword (illegible) and thereby his left palm was cut. In his statement, he stated that when Suresh wanted to attack his father with sword (illegible) and thereby his left palm was cut. At this juncture, Rameshwar had snatched the sword and Jiwan who was standing behind Rameshwar had sustained injury on his nose and with the same sword Rameshwar caused injury on the head of Mool Shankar. The whole statement of PW/3 as compared with the contents of FIR goes to show a considerable and marked change in the prosecution case at trial stage and it is unbelievable that the informant would have skipped reference to such glaring facts in the FIR. (b) As per the First Information Report. Mool Shankar was injured while he was sitting in the house, while PW/3 Khem Raj has stated before the Court that Rameshwar sword injury to Mool Shankar who was standing there. In the cross-examination, he has stated that he (Khem Raj) had caught hold of the sword when Suresh to attack his father with sword and thereby he (Khem Raj) suffered the left palm cut and that Rameshwar had snatched the sword, at that time and thereby Jiwan sustained injury on his nose while he (Jiwan) was standing behind Rameshwar. Such a case was not there in the FIR and this case was set up at the trial stage. PW/3 Khem Raj has tried to explain by saying that what he meant by mentioning in the FIR that injury was caused to Mool Shankar in the house was that the house was upto Chabutara and the injury was caused to Mool Shankar while he was standing in the way below the chabutari. (c) It was not the case earlier that Ram Prasad, Bhola and Khem Raj had weilded the lathi and sword and it appears that in order to explain the injuries caused to the accused persons it was set up at the trial stage that Ram Prasad. Bhola and Khem Raj had wielded lathi and sword. PW/9 Rajendra Kumar has deposed in the cross-examination that Bhola and Ram Prasad caught hold of Rameshwar and thereby he fell down. Then Ram Prasad picked up the sword and weilded the same in self-defence and this must have caused injuries to the accused persons. PW/7 Ram Prasad has also stated that he along with Bhola got the sword fell down from Rameshwar and that he wielded the sword. 9. Then Ram Prasad picked up the sword and weilded the same in self-defence and this must have caused injuries to the accused persons. PW/7 Ram Prasad has also stated that he along with Bhola got the sword fell down from Rameshwar and that he wielded the sword. 9. Learned counsel for the appellant, Ram Charan has submitted that when there is a material change in the prosecution case, the whole prosecution case stands self-condemned and must be looked upon with an eye of suspicion. From the statement of the prosecution witnesses, the material change in the prosecution case at trial stage is clearly made out and we find that at trial stage, the witnesses have changed the case & case which was never set up with regard to the manner in which the incident took place, the manner in which the exchange of weapons took place and the manner in which the injuries were sustained by the accused persons have been sought to be explained, has been set up at trial stage, which is sufficient to look at the whole prosecution story with an eye of suspicion and the prosecution case stands self-condemned. 10. It was then argued by Mr. S. R. Bajwa on behalf of the appellant that it is a case of tainted and unfair investigation and the investigating officer has taken a partisan view. His submission in this regard are as under:- (a) It is throughout the case of the prosecution witnesses that the weapon of offence had been snatched from the accused persons by them on the spot and vet the recoveries of the weapon of offence has been shown to have been made from the accused persons. One fails to understand that if the weapons had been taken by the prosecution witnesses from the accused persons on the spot itself, how the same leached back in the custody of the accused persons and how they could be recovered from them. (b) The prosecution did not make any investigation about the injuries sustained by the accused persons. (c) Mool Shankars place was not even visited by the police. (d) PW/1 Shakuntala has stated that the accused persons had broken open the door, marks of cut by dharia and sword were there on the doors and the accused persons entered the house when the gate was opened by push. (c) Mool Shankars place was not even visited by the police. (d) PW/1 Shakuntala has stated that the accused persons had broken open the door, marks of cut by dharia and sword were there on the doors and the accused persons entered the house when the gate was opened by push. There has been no investigation on this aspect of the matter. PW/18 Tara Singh, the investigating officer, has stated that the doors of the main gate were duly fixed. The investigation has not noticed any marks of hit and cut on the doors. (e) PW/10 Prakash Pal, in whose tractor Gyani Ram and other injured persons were taken to the Police Station, has categorically stated that Ram Charan, Rameshwar, Jagdish and Suresh had been arrested on that very day and were kept in the Police Station. But PW/18, Investigating Officer, Tara Singh has stated that from 14th May, 1987 to 24th May, 1987, Ram Charan was not traceable and that all the accused persons were found on 24th May. 1987 and were arrested at the canal near the village but it was not considered necessary by him to make a mention of this fact in the memo of arrest and all the recoveries are said to have been made on that very day. (f) It was not mentioned in the memo of recovery of dharia as to which part of the dharia was blood-stained. (g) The Investigating Officer has admitted that the complain of the cross-case was received by him before the arrest of the accused persons and yet the same was not investigated. The Investigating Officer has rest contented by saying that he had not conducted the complete investigation with regard to this complaint under Section 1563) Cr.P.C. upon which case No. 37/87 was registered and that he had been transferred. (h) No investigation was conducted with regard to the injuries sustained by the accused persons and as to how the accused persons received injuries does not stand explained by the investigation. May be that some prosecution witnesses have tried to explain at trial stage that the injuries persons had wielded the sword in their defence and thereby the injuries may have been caused. But this belated explanation given at trial stage can hardly be substituted for the lacuna in the investigation. (i) The blood was collected from one place only. May be that some prosecution witnesses have tried to explain at trial stage that the injuries persons had wielded the sword in their defence and thereby the injuries may have been caused. But this belated explanation given at trial stage can hardly be substituted for the lacuna in the investigation. (i) The blood was collected from one place only. According to the case, as set up by the prosecution, if 11 persons had bleeding injuries, blood should have been found at more than one place, but the site-plan Ex. P/5 does not show blood soil was there at more than one place and the blood smeared earth was collected from one place only. (J) In Ex. P/10, it was not even mentioned that there was blood on the sword which was used as a weapon of offence. On the contrary, PW/18 has stated that blood might not have been apparently visible on the sword. Therefore, it was not mentioned in Ex. P/10. 11. The analysis of the evidence lends strength to the aforesaid submissions and we find that for all these reasons it is clearly made out that it is a case of tainted investigation lacking in the sense of objectivity and, we are of the opinion that it will be unsafe to sustain conviction on the basis of such an investigation and the trial Court fell into error in recording the conviction of appellant Ram Charan under Section 302, IPC ignoring the aforesaid laconic and unfair investigation. 12. So far as the ocular evidence is concerned, the submission of the learned counsel for the appellant that there was an inherent contradiction on the question as to whether Gyani Ram died on the spot or in the way to the Police Station, Sapotra because as per the FIR Khem Raj was standing with the corpse of Gyani Ram at the spot itself. It has come in the statements of more than one witness that Gyani Ram had died while he was being carried .o the Police Station, Sapotra in the tractor. Whether Gyani Ram died on the spot or in the way to the Police Station, Sapotra is immaterial. This, of course, is a minor and immaterial contradiction. It has come in the statements of more than one witness that Gyani Ram had died while he was being carried .o the Police Station, Sapotra in the tractor. Whether Gyani Ram died on the spot or in the way to the Police Station, Sapotra is immaterial. This, of course, is a minor and immaterial contradiction. However, the testimony of the witnesses suffers from numerous infirmities and the trial Court has itself condemned the prosecution case qua the five other accused persons and in such a situation when the prosecution case has been condemned qua the five accused persons neither the conviction of the accused Ram Charan can be sustained on the basis of such an evidence which has been disbelieved qua the five out of seven accused persons for Suresh alone can be subjected to conviction in isolation The learned counsel for the appellant Shri S.R. Bajwa has cited Prem Singh v. State of Punjab ( AIR 1977 SC 673 ) and Chandubhai Shanabhai Parmar v. State of Gujarat ( AIR 1982 SC 1022 ) in support of his submission that when the trial Court itself has condemned the prosecution case with regard to the five accused persons out of seven accused persons who were involved in the case. Neither Ram Charans conviction can be sustained nor the acquittal of Suresh can be interfered with on the basis of the very same evidence. In Prem Singh v. State of Punjab (supra), the Supreme Court observed as under:- "Now, if the evidence of these two witnesses was disbelieved by both the lower courts in regard to participation of the four other accused in the incident, it is difficult to see how it could be accepted so far as the role assigned to the appellant is concerned. The conviction of the appellant is founded solely on the evidence of these two witnesses whose testimony cannot be said to inspire confidence in the mind of the Court." In Chandubhai Shanabhai v. State of Gujarat (supra) the Supreme Court observed as under : "Be that as it may, we cannot persuade ourselves to hold that although the ocular evidence was not trustworthy enough for a conviction of accused Nos. 1 to 10, implicit reliance can be placed on it in the case of the appellant who, in our opinion, must be given the benefit of the same doubt which made it imperative for the two courts below to acquit his co-accused." 13. The ocular testimony which suffers from numerous infirmities and which has been disbelieved qua other co-accused persons cannot be made the basis of conviction, and, in our opinion, the submission made by Shri Bajwa has great force and is worthy of receptance. In our considered opinion, when the whole basis of the prosecution case has been knocked out, no case can be built up either to sustain the conviction of Ram Charan or to set aside the acquittal of Suresh. 14. Besides this, it has been argued on behalf of the appellant that no proximate cause has been given which could give rise to such an incident on 14th May, 1987. The motive which has been suggested i. e. the enmity between the parties is also vague and inadequate. PW/1 Shakuntala has stated that there was no enmity prior to the marriage of Bhola and, it appears that the total dispute was that Bholas wife Mithilesh was sought to be entertained at Ram Charans house before her return to Khandar immediately after the marriage because Ram Charan was her sisters husband and Bhola and her family members did not like the staying of Mithilesh at Ram Charans house because they looked at the character of Ram Charan with an eye of suspicion. This by itself could not have precipitated such a situation; more so, when it is the common case of the parties that Ram Charan had given a family feat on 12th May, 1987 i. e. just two days before the date of the incident and no untoward incident is said to have taken place either on 12th May, 1987 or on 14th May, 1987 till 4.30 p m. i. e. the date of the incident which can be taken as the immediate and proximate cause for the commission of offence. The absence of marks of cut on the doors of the house of Khem Raj; absence of blood at more than one place despite the blood injuries said to have been sustained by 11 persons and the manner in which the incident is narrated to have taken place read with the contemporaneous record does not lend corroboration to the prosecution case and, it also puts a question mark as to whether the occurrence had taken place in the same manner as stated by the prosecution witnesses, or in some other manner. It has been stated by PW/4 Bhola that at the time of the incident ladies were throwing stones from the terrace of Ram Charan, but no stones have been recovered nor the factum of available of any stones has been recorded, or is made cut from Ex. P/5. Ram Charan was the leader of the whole team of assailants and he has not received any injury. Besid s this, it was pointed out by the counsel for the appellant that material witnesses viz Mithilesh. carrier of material exhibits to the Forensic Science Laboratory and no independent persons from the neighbour-hood had been produced and examined. The blood group was also not matched and, thus. the links to bring the prosecution case to establish the guilt against any of the accused persons are missing and it renders the whole prosecution case to be improbable and doubtful. We called upon the Public Prosecutor to explain all these infirmities pointed out by the counsel for the appellant. Ram Charan and respondent Suresh, but no plausible much less convincing explanation could be given by him. 15. The learned Public Prosecutor has submitted that it is clearly made out from the prosecution evidence that the accused persons had threatened to kill. He has invited our attention to the statements of PW/1, PW/3, PW/4, PW/5 to PW/7 and has submitted that the commission of offence had been thoroughly premeditated by the accused persons. There was enmity because Ram Charans character had been doubted and opportune time was chosen on 14th May. He has invited our attention to the statements of PW/1, PW/3, PW/4, PW/5 to PW/7 and has submitted that the commission of offence had been thoroughly premeditated by the accused persons. There was enmity because Ram Charans character had been doubted and opportune time was chosen on 14th May. 1987 because the helping hands were available to Ram Charan after the day of the family feast when the persons from Khandar were there to help him and has submitted that in view of the statement made by the prosecution witnesses, the case against Ram Charan and Suresh is still made out for conviction and that the infirmities pointed out by the counsel for the appellant were inconsequential. The learned Public Prosecutor was at pains to meet the infirmity of non-production of material witnesses like Mithilesh, the carrier of material exhibits to the Forensic Science Laboratory and non-examination of any independent witness from the neighbourhood and absence of investigation of the complaint of the accused persons; as to when no incident had taken place on 8th itself and as to what was the immediate cause to precipitate the incident of 14th May, 1987 and the infirmities in the investigation; but he failed to answer and we find that the cumulative effect of the aforesaid infirmities, lacunas and attendant and proceeding circumstances coupled with the contemporaneous record is sufficient to render the whole prosecution story to be suspicious. 16. Having examined the evidence, including the evidence of 12 eyewitnesses, out of which three are close relations and 9 others are also closely related witnesses, keeping in view the want of corroboration by the independent witnesses which could be available in the facts of this case if we go through the medical evidence, in this case, it will be sufficient to observe that the scientific data is the very basis of test the veracity of such evidence. Here is a case in which no scientific date has been given by PW/17 Dr. Ram Swaroop Meena. Here is a case in which no scientific date has been given by PW/17 Dr. Ram Swaroop Meena. He ha- deposed in the cross-examination that he had not recorded as to whether the injury which had been sustained by Gyani Ram on his head had clean margin, he has stated that the depth of the wound was 2.5 cm and also that the depth of such injury is measured in the centre, head and tail of the bead injury sustained by the deceased, Gyani Ram, has not been specified. It is also stated that the head injury sustained by deceased Gyani Ram was 22.5 cm x 2.5 cm & which was skin muscle bone deep. It was a case of injury caused by a curved sharp weapon and hence the depth of 2.5 cm in the centre does not stand expiated on the basis of any scientific data and the medical evidence is not at all compatible with the principles of medical jurisprudence. Reference may be made to Jhalas Medical Jurisprudence, Vth Edition, at page 309,311 and 321. Regarding incised wound and head, the Author has commented as under:- "The edges of the wound are clear out and straight and offer a confirmatory characteristic. The other features are the head and the tail. It is thus the straight and dear cut characteristic which enables one to differentiate it from the incised like wound. It is very necessary to know look for, and understand the differentiation because of legal significance attached to the wound. As the weapon is usually a straight blade, the wound is a straight wound. But if the blade is curved or sickle shaped as in the case of Dharia of Danti the edges would be curvilinear or crescentic. If the surface is convex, as the top of the head, bodging of shoulder, buttock or thigh, even a straight blade may produce a crescentic wound. But usually the wound is inflicted with the blade at right angles to the skin plane. If for any reason, the blade becomes inclined, a flap would is caused. In these cases the edges conform to the characteristics but the other properties viz. the head, the tail, the depth or the floor are not the same as in the commonly encountered incised wound. The head of an incised wound is the portion where the wound commences. If for any reason, the blade becomes inclined, a flap would is caused. In these cases the edges conform to the characteristics but the other properties viz. the head, the tail, the depth or the floor are not the same as in the commonly encountered incised wound. The head of an incised wound is the portion where the wound commences. This is the point where the sharp cutting weapon has an initial impact and maximum force (unused). At this point, as a rule, the wound is deepest. The tail of the wound is the tapering/end, where the weapon leaves the skin. It is the most superficial portion of the wound. The head and tail are very useful from criminological point of view. They point to the direction of the movement of the weapon. Hence, they are very useful in judging the position of the fictim, vis-a-vis the assaillant. This information often scientifically confirms, corroborates or contradicts the story or the circumstances of the case." X X X X "A genuine incised wound, unless it gapes, should have no breadth. But gaping is an inevitable sequel of incised wounds affecting subcutaneous tissues. The existence of gaping depends on cutting across the elastic fibre layer under the skin This phenomenon, dependent as it is on the elasticity of the fibres, disappears with the death of the tissues. It is for this reason that gaping is considered an important characteristic of an ante-mortem incised wound. One fact should be born in mind before heavy reliance is placed on gaping or its absence. If the wound is cut along the direction of fibres, and not across the longitudinal places, gaping is absent even in incised wounds caused before death." X X X X "Head. Even though not adherent to skull, the scalp is attached at the periphery and that too firmly. This gives it a stretched condition against the convex skull. This has an applied medico-legal bearing Any injury on this stretched scalp even by a blunt weapon leads to tear. This results in injury apparently looking like incised wound, but in reality is a lacerated wound. It is important to bear in mind and lock for the difference, as it has bearing on the way in which it is caused. This has an applied medico-legal bearing Any injury on this stretched scalp even by a blunt weapon leads to tear. This results in injury apparently looking like incised wound, but in reality is a lacerated wound. It is important to bear in mind and lock for the difference, as it has bearing on the way in which it is caused. Al incised like lacerated, wounds can be caused by blunt impact including a fall dash or stick blow, while with incised wound there is no other causative weapon but sharp cutting weapon. Multiple injuries on scalp specially when deep are not likely to be self inflicted. Due to peculiar vascularity of the scalp scalp wounds tend to bleed freely and heal rapid. This has a medico-legal bearing. The amount of bleeding blood stained environments, clothes, furnitures, flooring etc. also reflect this phenomenon." X X X X x The skull has a peculiar two-layered structure with spongy bone intervening. This imparts strength as well as capacity to absorb shock. But this multi-layered structure of an adult skull with its shape full of convesities or eminences has another bearing." 17. Such a medical evidence in the absence of scientific data cannot be safely relief upon. 18. This imparts strength as well as capacity to absorb shock. But this multi-layered structure of an adult skull with its shape full of convesities or eminences has another bearing." 17. Such a medical evidence in the absence of scientific data cannot be safely relief upon. 18. The analysis of the whole evidence, as we have done herein above, make out a case of mutually contradictory version and in such a case when there are mutually contradictory versions, both the versions have to be discarded as per the law laid down in Harchand Singh v. State of Haryana ( AIR 1974 SC 344 ) relied upon by the learned counsel for the appellant and in a case like this, in which truth and falsehood are not distinctly divisible, no true picture has been depicted; medical evidence is shaky and incomplete in want of scientific data; he origin of the fight is not given, the benefit of doubt must go to the accused on the basis of the principle laid down by their Lordships of the Supreme Court in para 12 of Harchand Singhs case (supra), which is quoted as under:- "If in a case the prosecution leads to two sets of evidence, each one of which contradicts and strikes at the other and shows it to be unreliable, the result would necessarily be that the court would be left with no reliable and trustworthy evidence upon which the conviction of the accused might be based. Inevitable, the accused would hive the benefit of such a situation." 19. The net result of the aforesaid discussion is that neither the conviction and sentence of Ram Charan as recorded and ordered by the trial Court under Section 302, IPC can be sustained nor the acquittal of Suresh ordered by the trial Court warrants any interference. 20. Consequently, the appeal of Ram Charan i.e. D B. Cr. Appeal No. 43/1989 is allowed. Ram Charans conviction under Section 302, IPC and sentence for life imprisonment and fine of Rs. 500/- as ordered by the trial Court is set aside. Appellant Ram Charan is acquitted of the offence under Section 302, IPC by giving him the benefit of doubt. Ram Charan is in jail. He be released forth with if not required in any other case. The appeal against Suresh (D B. Cr. Appeal No. 2t0/ 1989) is dismissed. His bail bonds are cancelled. Appellant Ram Charan is acquitted of the offence under Section 302, IPC by giving him the benefit of doubt. Ram Charan is in jail. He be released forth with if not required in any other case. The appeal against Suresh (D B. Cr. Appeal No. 2t0/ 1989) is dismissed. His bail bonds are cancelled. He need not surrender to his bail bonds. *******