JUDGMENT A. R. Tiwari, 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 IPC and appellant Mangu S/o Babru and the appellant Tolaram under Sec. 302/34 IPC and sentencing each of the appellants to suffer imprisonment for life. Appellant Mangu has also been convicted under section 325 IPC and sentenced to suffer rigorous imprisonment for two years and appellant Tolaram has also been convicted under Sec. 323 IPC 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 of the trial were that on 2.3.1985 at about 8.00 or 8.30 AM. Mangu S/o Laxman (PW3), Daryavbai (PW4) and their son Rameshwar (deceased) were doing the work in their KHALA. Kanhaiyalal (PW7) 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 nature's 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 Babru, Tolaram and Govind were armed with axes wheras Dewa, Ambaram, Mangu S/o Rugga were armed with lathies. Govind assaulted Rameshwar by an axe. The other accused persons also assaulted with axe and lathies. Mangu (PW3) and Darayavbai (PW4) attempted to intervene to save Rameshwar but they too were assaulted. On hearing shricks, Geetabai (PW5) and Surajbai (PW6) also reached the KHALA. They also shouted and on this, the accused persons fled away. Kanhaiyalal and Surajbai brought to the spot Mohan, Shankar and Hariram (not examained in this case). The deceased had become unconscious. Deceased Remeshwar was taken to Police Station in a bullock cart but he died near the police station. Mangu (P.W.3) lodged FIR at the police station, marked in this case as Exh. P/7. Dr. Ratansingh Johri (PW1) examined the injuries sustained by Mangu S/o Laxman. Injury report is Exh. P/1. The deceased had become unconscious. Deceased Remeshwar was taken to Police Station in a bullock cart but he died near the police station. Mangu (P.W.3) lodged FIR at the police station, marked in this case as Exh. P/7. Dr. Ratansingh Johri (PW1) examined the injuries sustained by Mangu S/o Laxman. Injury report is Exh. P/1. He also examined the injuries sustained by Daryavbai. Injury report is Exh. P/2. The post mortem was conducted by Dr. Surendra Dubey (PW2). The post mortem report is Exh. P/4. The alleged weapons were seized in pursuance to the information furnished under S. 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 of 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 S/o Ruggaji, Ambaram and Deva (since acquitted by the trial Court) were charged for offences punishable under sections 147,302,302/149,323,325 both read with S. 149 IPC, 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 appellants and Shri G.S. Chouhan, learned Deputy Govt. Advocate for the respondent/State. 5. Shri Jaisingh, learned counsel has submitted that conviction and sentence have been wrongly recorded. The appellants are alleged to be armed with axes and the evidence has been led to show that they have 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. Shri Chouhan, on the other hand, supported the impugned judgment and stated that it was based on proper appreciation of evidence. 6. 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 weapons and injuries and post mortem reports etc. However, the Trial Court itself on appreciation of the material recorded the finding 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 Tolaram and Mangu have also dealt one blow each by axe on the deceased 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 regard the number of injuries. (Para 16). c) The ocular version ofPW-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 are 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 injures found and proved in this case by PW-l Dr. Ratan Singh 10hari and PW-2, Dr. Surendra Dubey (Ex. P/1, 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. P.W.2 has deposed on oath that the in juires cannot be caused by the sharp-edged side of axe implying thereby that the same were not caused in the manner suggested by the eye - witnesses. (Para 6) 8. P.W.2 has deposed on oath that the in juires cannot be caused by the sharp-edged side of axe implying thereby that the same were not caused in the manner suggested by the eye - witnesses. (Para 6) 8. The three accused persons, armed with lat his, have been acquitted. 9. In Mohinder Singh v. The State ( AIR 1953 SC 415 ) it is held as under :- "In a case where death is due to injuires or wounds caused by a lathal 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 ( AIR 1975 SC 1727 ) 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 evidence. If the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence of the ballstic expert, this is a most fundamental defect in the prosecution case and unless reasonbly explained it is sufficient to discredit the entire case." To the same effect is the view rendered in Amar Singh v. State of Punjab ( AIR 1987 SC 826 ) 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 PW.6. If here evidenced that all the accused inflicted injuries on the deceased with their respective weapons, has to be accepted, then there would be incised wound all over the body of the deceased, but the medical report show that not a single incised wound was found on the body of the deceased. Thus the evidence of PW5 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. Thus the evidence of PW5 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. ( AIR 1974 SC 1936 ) it is observed that :- "Normally when a 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". In the case on hand, even the question of explanation did not arise because witnesses had emphatically stated the use 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 Shanker were not examined. In Bejoy Singh & Vijay Narain Singh & Ors v. State of West Bhopal [1990 (II) MPWN 38 = AIR 1990 SC 814 ], it is observed thus :- "In a murder case the prosecution case that some of the accused caught hold of the deceased and other one 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 S. 302 was set aside." As regards the at tractability of section 34 of the Indian Penal Code there is no evidence with regard to thatas well. In Vencil Pushpraj v. State ofRajsthan ( AIR 1991 SC 536 ), it is pointed out that :- "There is no material worth-mentioning even to draw an inference that the appellant and Kannu had acted in concert and/or there was existence of a pre-arranged plan to commit the murder of the deceased. Therefore, we are unable to infer the common intention on the part of this appellant with Kannu." 12. Therefore, we are unable to infer the common intention on the part of this appellant with Kannu." 12. There is one more hurdle in the way of the prosecution. PW-3 and PW-5 have been partly 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 or this Court took the view in Mathura v. State of M.P. (1982 WN 396) as under "The witnesses, therefore, have not been treated as wholly reliable even by the Trial Court. For this reason some other evidence to provide at least some corroboration to the version of Budhman (PW2) 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 lathis. 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 feet 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 U.P. ( AIR 1992 SC 1032 ) it is observed that :- "Even otherwise Hari Om and Badshah Singh having been acquitted on the same evidence there is no justification to sustain the appellant's conviction." 14. We thus, hold that the trial Court has misappreciated the facts 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 sections 323 and 325 of the Indian Penal Code because the version even in this respect remained the same. 15. For the foregoing reasons, we allow the appeal, set aside the conviction and sentence and acquit the appellant of the charges leveled against them. The appellants are reported to be on bail. Their bail bonds shall stand cancelled. 16. 15. For the foregoing reasons, we allow the appeal, set aside the conviction and sentence and acquit the appellant of the charges leveled 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 se~ that such part-acquittals, having palpable potential to perish the part-convictions, are not viewed non-chillingly and to ensure that suitable steps like leave to appeal are taken in the interest of justice in an urge to salvage the situation.