A. R. TIWARI, J, J. ( 1 ) THIS appeal is directed against the judgment dated 30/7/1985 passed by the Second Additional Sessions Judge, Ujjain in ST No. 88/85 thereby convicting the appellant Govind under section 302/3 I. P. C. and sentencing each of the appellant to suffer imprisonment for life. Appellant Mangu has also been convicted under section 325 I. P. C and sentenced to suffer rigorous imprisonment for two years-and appellant Tolaram has also been convicted under section 323 I. P. C. and sentenced to suffer RI for three months with a direction that all sentences shall run concurrently. ( 2 ) BRIEFLY stated the facts of the case at the trial were that on 2/3/1985 at about 8. 00 or 8. 30 A. M. Mangu S/o Laxman (P. W. 3), Daryavbai (P. W. 4) and their son Rameshwar (deceased) were doing the work in their KHALA. Kanhaiyalal (P. W. 7) was grazing the cattle some 20 to 25 feet away from this KHALA. The younger brother of the appellant Govind aged 6 years came near the KHALA to answer the natural call. Rameshwar asked him not to do so and on that he went away. Thereafter, appellant Mangu S/o Rugga armed with lathi came on the KHALA and abused the mother of the deceased. He demanded to know as to why his son was asked to go away; Appellant mangu was followed by his son appellant Govind armed with an axe. The other accused persons also reached the KHALA. Mangu S/o Rugga were armed with lathies. Govind assaulted Raneshwar by an axe. The other accused persons also assaulted with axe and lathies. Mangu (P. W. 3) and Daeryabi (P. W. 4) attempted to intervene to save Rameshwar but they too were assaulted. On hearing shrieks, Geetabai (P. W. 5) and Surajbai (P. W. 6) also reached the KHALA. They also shouted and on this the accused persons filed away. Kanhaiyalala and Surajbai brought to the spot Mohan, Shankar and Hariram (not-examined in this case ). The deceased had become unconscious. Deceased Ramkeshwar was taken to Police Station I a bullock cart but he died near the police station. Mangu (P. W. 3) lodged F. I. R. at the police station, marked in this case as Exh. P17. Dr. Ratan singh John (P. W. 1) examined the injuries sustained by mangu Sb Laxman,. Injury report is Exh. Deceased Ramkeshwar was taken to Police Station I a bullock cart but he died near the police station. Mangu (P. W. 3) lodged F. I. R. at the police station, marked in this case as Exh. P17. Dr. Ratan singh John (P. W. 1) examined the injuries sustained by mangu Sb Laxman,. Injury report is Exh. P/i. He also examined the injuries sustained by Daryavbai. Injury report is Exh. P/2. The post mortem was conducted by Dr. Surendra Dubey (P. W. 2 ). The post mortem report is Exh. P/4. The alleged weapons were seized in pursuance to the information furnished under section 27 of the Evidence Act. Certain other articles were also seized and submitted for the examination by the State Forensic Science laboratory, Sagar. The report is Exh. P/35. The X-ray report to Daryavbai is Exh. P/36 and the x-ray plate was marked as Exh. P/37 showing the fracture in the right index finger. Spot map was drawn which is marked in this case as Exh. P/8. ( 3 ) AFTER completion of investigation, challan was filed in the Court. The appellants as also accused Mangu Sb Ruggaji, Ambaram and Dewa (since acquitted by the trial Court) were charged for offences punishable under section 147, 302, 302, 149, 323, 325, both read with section 149 I. P. C to which they pleaded not guilty. On trial they were convicted and sentenced as above. ( 4 ) WE have heard Shri jaisingh learned counsel for the appellant and Shri G. S. Ghouhan, learned Deputy Govt. Advocate for the respondent/state. ( 5 ) SHRI Jaisingh learned counsel has submitted that conviction and sentence have been wrongly recorded. Thy appellant are alleged to be armed with axes and the evidence has been led to show that they have been inflicted injuries by axe but according to the medical evidence produced in this case no such injuries were found on the deceased or on the injured persons. This inconsistency, counsel submitted, was sufficient to discard the evidence. He also submitted that all injuries caused in this case were described as being caused by hard and blunt objects but those armed with lathies have been acquitted by the trial Court. According to him, the conviction of the appellants on the same evidence is unwarranted in law. This inconsistency, counsel submitted, was sufficient to discard the evidence. He also submitted that all injuries caused in this case were described as being caused by hard and blunt objects but those armed with lathies have been acquitted by the trial Court. According to him, the conviction of the appellants on the same evidence is unwarranted in law. Shri Chouhan, on the other hand, supported the impugned judgment -and stated that it was based on proper appreciation of evidence: ( 6 ) THE prosecution sought to prove the charges through the eye-witnesses PW- 3 Mangu (father of the deceased), PW -4 Daryavbai (mother of the deceased), PW- 5 Geetabai (wife of the deceased), PW- 6 Surajbai (Aunt of the deceased) and PW - 7 kanhiyalal (son of PW 6 Surajbai) to the incident as also other evidence furnished by disclosure, seizure of weapon and injuries and postmortem reports etc. However, the Trial Court itself on appreciation of the material recorded the findings extracted below from the impugned judgment: -. a) PW- 5, PW- 6, and PW- 7 have not seen the actual incident (para 15 ). b) PW- 3 and PW- 4 have given exaggerated account of the incident when they have deposed that appellants Tolar-am and Mangu have also dealt one blow each by axe on the decided Rameshwar. This version does not find place in earlier statement recorded by the police under section 161 of the Cr. P. C. and is also not consistent with the medical report as regards the number of injuries (para 16 ). c) The ocular version of PW - 3 and PW - 4 is not corroborated by medical evidence because the witnesses have stated the causation of injuries by sharp-edged side whereas the medical evidence shows the injuries as having been caused by hard and blunt objects (para 16 ). d) Except head injuries on the deceased, all other injuries arc possible by fall (para 16 ). e) PW-3 and PW-4 have deposed that injuries on the person of the deceased and on themselves were caused from the sharp-edged side (para 16) of the axe. f) There is no. evidence showing participation of Ambaram, Dewa and Mangu (para 20 ). ( 7 ) IT is, thus clear that the injuries found and proved in this case by PW-l Dr Ratan Singh Johh and PW - 2 Dr Surendra Dubey (Ext. f) There is no. evidence showing participation of Ambaram, Dewa and Mangu (para 20 ). ( 7 ) IT is, thus clear that the injuries found and proved in this case by PW-l Dr Ratan Singh Johh and PW - 2 Dr Surendra Dubey (Ext. P/i, P/2, P/4, P/36 and P/37 are Such which were not caused by the sharp-edged side of the axe as deposed to by both the witnesses- PW - 2 has deposes on oath that the injuries cannot be caused by the sharp-edged side of axe implying thereby that the same were not caused in the manner suggested by the eyewitnesses (para 6 ). ( 8 ) THE three accused persons, armed with lathis, have been acquitted. ( 9 ) IN Mohinder Singh v. The State1, it is held as under:in a case where death is due to injuries or wounds caused by a lethal weapon, it is always the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which and in the manner in which they are alleged to have been caused. It is elementary that where the prosecution has a definite, or positive case, it must prove the whole of the case. Following the aforesaid judgment, it is held in Ramnarain v. The State of Punjab, as under:where the direct evidence is not supported by the expert evidence, then 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 evidences. If the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence of the balistic expert, this is a most fund mental defect in the prosecution case and unless reasonably explained it is sufficient to discredit the entire case. To the same effect is the view rendered in Amar Singh v. State of Punjab. We extract:the medical report submitted by P. W. 2 shows that there were only contusions, abrasions and fractures, but there was no incised wound on the left knee of the deceased as alleged by P. W. 5. To the same effect is the view rendered in Amar Singh v. State of Punjab. We extract:the medical report submitted by P. W. 2 shows that there were only contusions, abrasions and fractures, but there was no incised wound on the left knee of the deceased as alleged by P. W. 5. If here evidence that all the accused inflicted infuriation the deceased with their respective weapons, has to be accepted, then there would be incised wounds all over the body of the deceased, but the medical report shows that not a single incised wound was found on the body of the deceased. Thus the evidence of P. W. 5 is totally inconsistent with the medical evidence. ( 10 ) THE oral evidence is thus totally inconsistent with the medical evidence. Obviously, this is most fundamental defect in the prosecution case. There is no reasonable explanation with regard to this inconsistency. In view of this, it is sufficient to discredit the entire case. Explanation ought to have been elicited from the witnesses. In Hallu and others v. State of M. P. 4 it is observed that:normally when a witnesses 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. In the case on hand, even the question of explanation did not arise because witnesses had emphatically Stated the used of sharp-edged side of the weapon of assault and thus imposed the unrepeatable dent on the prosecution story. ( 11 ) THIS is thus a serious infirmity which is fatal for the prosecution. Hariram, Mohan and Shankar were not examined. In Bejoy Singh and Vilay Narain Singh and Ors. v. State of West Bengal5, it is observed thus:in a murder case the prosecution case that some of the accused caught hold of the deceased and other he stabbed the deceased was belied by the medical evidence, as according to the doctor there were number of injuries on the hands, forearm and fingers of the deceased which were defensive in nature. In the circumstances conviction under section 302 was set aside. In the circumstances conviction under section 302 was set aside. As regards the attractibility of section 34 of the Indian Penal Code, there is no evidence with regard to that as well. In Vencil Pushpraj v. State of Rajasthan6, it is pointed out that: -. There is no material worth-mentioning even to draw an inference that the appellant and Kanna had acted in concert and/or there was existence of it are-arranged plan to commit the murder of the deceased. Therefore, we arc unable to infer the common intention on the part of this appellant with Kanna. ( 12 ) THERE is one more hurdle in the way of the prosecution PW-3 and PW-5 have been party disbelieved by the trial Court.-In this view of the matter, Such witnesses could not be believed unless corroborated. Here; instead of corroboration, they stood contradicted by the medical, evidence. The Division Bench of this Court took the in Mathura v. State of M. P. as under:the witness, therefore, have not been treated as wholly reliable even by the Trial Court. For this reason some other evidence to provide atleast some corroboration to the version of Budhman (PW 2) for convicting the appellant even for the third murder of Patiraj must be found in order to sustain his conviction. There is no Such corroboration available in the prosecution evidence. ( 13 ) UPON an analysis of the evidence, a feeling looms large in the mind that the injuries found on the persons of the deceased as well as injured persons (PW-3 and PW-4) were in all probability caused by the acquitted persons who were armed with the lath is. The state has, however, not chosen to assail their acquittal. In this view of the matter, other evidence is wholly inconsequential because the Inconsistency and acquittal of others pull the carpet below the feel of the prosecution. It is also not safe to sustain the conviction on the same evidence which led to the acquittal of others. In Puttan v. State of M. P8 it is observed that: Even otherwise Han Om and Badshah Singh having been acquitted on the same evidence there is no justification to sustain the appellants conviction. ( 14 ) WE thus, hold that the trial Court has mis-appreciated the fact and over looked the law. The judgment suffers from manifest illegality and thus, stands vitiated. ( 14 ) WE thus, hold that the trial Court has mis-appreciated the fact and over looked the law. The judgment suffers from manifest illegality and thus, stands vitiated. Consequently, the findings are liable to be reversed. The same infirmity is visible even for charges under section 323 and 325 of the Indian Penal Code because the version even in this respect remained the same. ( 15 ) FOR the fore going reasons, we allow the appeal, set aside the conviction and sentence and acquit the appellants of the charges levelled against them. The appellants are reported to be on bail. Their bail-bonds shall stand cancelled. ( 16 ) THE judgment is reversed, yet a word more. We should like to impress upon all concerned to, see that Such part-acquittals, having palpable potential to perish the part-convictions, are not viewed non-chalantly a and to ensure that suitable steps like leave to appeal arc taken in the interest of justice in an urge to salvage the situation. Appeal allowed. .