S. K. MOHANTY, J. ( 1 ) THE two appellants who are brothers challenge their conviction for the offence under section 302 read with section 34 of the Indian Penal Code and sentence of imprisonment for life, on the finding that they committed murder of a lady named Mirli in furtherance of their common intention. ( 2 ) MIRLI (deceased) and the appellants reside in the same village Dumatandi within Tiring Police Station of Mayurbhanj district. They are related in the following manner: Mirli is sisters daughter of one Mohan who died leaving behind two daughters named Pada and Oishi. The two appellants are sons of Oishi. While P. W. 2 was working as a retained labourer under Mirli, both of them got married. Mirlii had her house and property at village Dumatandi. After marriage she transferred some of those properties by registered sale deed in favour of P. W. 2 and applied for mutation. The two appellants objected. But ultimately mutation was allowed in favour of P. W. 2. On this account there was ill-feeling between Mirli and P. W. 2 on one hand and the two appellants on the other. ( 3 ) IN above premises it is alleged by the prosecution, that in 11. 12. 1988 at about 11. A. M. at village Dumatandi the two appellants assaulted Mirli by lathis when she entered the house of the Grama Rakshi Siba Munda. The appellants, however, reached her and further assaulted her to death. ( 4 ) THE appellants took the plea of denial and contended that on account of land dispute, the case has been falsely foisted, against them. ( 5 ) RELYING on the medical evidence of P. W. 3 and the oral evidence of P. Ws. ,4, 5 and 7, the two appellants have been convicted as above by the court below. ( 6 ) P. W. 3 held postmortem examination on the dead body of Mirli on 14. 12. 1988 at 11. 00 A. M. and found minor abrasions on both thighs, abrasion on the right fore-arm, extensive bruises accompanied by swelling on the back of both sides and subcutaneous emphysema on the back, neck and chest. On dissection he found haematoma on both sides back, fracture of 3 ribs on the right side and 2 ribs on the left side. 00 A. M. and found minor abrasions on both thighs, abrasion on the right fore-arm, extensive bruises accompanied by swelling on the back of both sides and subcutaneous emphysema on the back, neck and chest. On dissection he found haematoma on both sides back, fracture of 3 ribs on the right side and 2 ribs on the left side. The 7th rib on the right side which had fractured had pierced into the pleura and injured the lungs. Further the fractured ribs of left side pierced the lung causing massive contusions and laceration. The thoracic cavity was filled with blood. The doctor has opined that all the injuries were antemortem, death was homicidal and that cause of death was due to shock and haemorrhage resulting from the injuries to the lung. ( 7 ) MR. P. K. Misra for the appellants did not dispute that death of Mirli was homicidal. He, however, contended that evidence of P. Ws. 4, 5 and 7 are not at all reliable to convict the two appellants with death of Mirli. ( 8 ) P. W. 2 has stated that before the occurrence he had gone to village Pandiasahi in Bihar to cut peddy from the land of his maternal uncle and his wife Mirli had gone to her fathers house at village Radol in Bihar to cut paddy and that while he was at Pandiasahi he was informed by one Laxmidhar and a boy that Mirli had been done to death by the two appellants. He then went to Jhardiha Out Post under Tiring Police Station where First Information Report (Ext. 4) was lodged on 13. 12. 1988 at 1 P. M. by his sisters son Sahiram (P. W. 4) of village Redol. P. W. 2 claims to have tome with Police who recovered the dead body of Mirli at Bankapahad jungle in village Dumatandi. Thus P. W. 2 has no personal knowledge about the incident. Laxmidhar and boy who are said to have informed P. W. 2 about death of Mirli have been examined in the court. ( 9 ) P. W. 5 is brother of P. W. 4, Jairam P. W. 7 is their nephew. They reside in village Radol in the state of Bihar. Mirli was the fathers sister of P. Ws. 4 and 5. ( 9 ) P. W. 5 is brother of P. W. 4, Jairam P. W. 7 is their nephew. They reside in village Radol in the state of Bihar. Mirli was the fathers sister of P. Ws. 4 and 5. ( 10 ) P. W. 4 claimed to have learnt about death of Mirli from his mother who according to him was informed by his brother Usinder (P. W. 5) and nephew Jairam (P. W. 7) that the two appellants killed Mirli by assaulting her. P. W. 4 claimed that next morning while going to village Dumatandi, he saw the dead body of Mirli lying in the jungle and seeing the same he returned to his village Radol and after informing P. W. 2 went to Jharadihi Out Post and lodged the report (Ext. 4) there. Thus P. W. 4 has also no personal knowledge about the incident. ( 11 ) ACCORDING to P. W. 5, he along with Mirli and P. W. 7 had gone to village Dumatandi where Mirli went inside the house of Siba Munda and the two appellants following her. He also entered the house and saw the two appellants assaulting Mirli with lath is. According to him, P. W. 7 also saw the assault and then both of them came back to their village Radol where P. W. 5 informed about the assault to his mother. ( 12 ) P. W. 7, a child witness, aged about 10 years, has stated that he along with P. W. 5 and Mirli came to village Dumatandi where the two appellants chased Mirli when she entered the house of Siba. There the two appellants assaulted Mirli with lathi is in the inner court-yard of Siva. As a result of the assault, Mirli was groaning when both P. Ws. 5 and 7 out of fear came away. ( 13 ) NOW it is to be examined how far the above evidence of P. W. 5 and 7 are acceptable. P. W. 5 did not state before the police that he and P. W. 7 had gone inside the house of Siba Munda and on the other hand, had stated there that appellant Shibna assaulted Mirli with a lathi near a Kusum tree. Further P. W. 5 claimed that as a result of assault Mirli sustained profuse bleeding injury and the earth was soaked with blood. Further P. W. 5 claimed that as a result of assault Mirli sustained profuse bleeding injury and the earth was soaked with blood. Curiously enough the Investigating Officer P. W. 9 categorically admitted that he did not find blood mark inside the house of Siba Munda. On the other hand, he has stated that he visited the house of Mirli and found stains of blood on her verandah. It may he mentioned here that neither P. W. 5 nor P. W. 7 has stated about any assault by any of the appellants on the verandah of Mirli. P. W. 5 has stated in cross-examination that Mirli sustained bleeding injuries, on her head and face. But the doctor P. W. 3 who held postmortem examination does not claim to have noticed any injury either on the head or on the face of Mirli. ( 14 ) P. W. 7, the child witness, has admitted in the very first lines of cross-examination that a day before his examination in court P. W. 5 had told him what to depose. He further admitted that his uncle Sahiram (P. W. 4) had told him as to what he should depose in the case and he was similarly told by P. W. 2. In contrast to his evidence in court P. W. 7 had stated before the Police that appellant Shibna assaulted Mirli with a lathi under a Kusum tree. P. W. 7 also claimed that inside the house of Siba Munda, he saw blood coming out from the mouth of Mirli and falling on the ground. But as already stated, the Investigating Officer did not locate any blood-stain inside the house of Siba: Munda. P. W. 7 claimed that Mirli sustained injuries on her head, but as already stated the medical evidence does not support him. ( 15 ) ACCORDING to the Investigating Officer he went to the house of the deceased and found stains of blood on her verandah and there from he seized blood-stained and unstained earth and a Charpoy, under the seizure list Ext. 2. There is no evidence whatsoever to indicate that there was any assault by any of the appellants on the verandah. From the house of Mirli, the Investigation Officer proceeded to Dumatandi forest and found the dead body of Mirli lying on the foot-path. 2. There is no evidence whatsoever to indicate that there was any assault by any of the appellants on the verandah. From the house of Mirli, the Investigation Officer proceeded to Dumatandi forest and found the dead body of Mirli lying on the foot-path. There is no evidence whatsoever to indicate as to how the dead body was lying in the forest although the assault took place in the village. ( 16 ) ON the over all appraisal of the aforesaid evidence, we are of the view that they are unsatisfactory and quite deficient to fasten the guilt on the appellants for the crime charged. Although according to the direct evidence, the assault took place inside the house of Siba Munda and as a result of the same Mirli sustained profuse bleeding injuries, no blood-stain was detected by the Investigating Officer from that place during his spot visit. On the other hand, he detected bloodstains on the verandah of the house of Mirli. Thus there is so satisfactory evidence regarding the place of assault. Further, evidence is lacking to indicate as to how the dead body was located in the jungle when the assault took place in the village. P. Ws. 5 and 7 claimed that Mirli sustained head and face injuries, but their evidence does not find any support from the medical evidence. P. W. 7, as it seems, has deposed in court as told to him by P. Ws. 2, 4 and 5. . In such circumstances we are satisfied that on the above evidence an order of conviction of the appellants for even having merely assaulted Mirli cannot be sustained. ( 17 ) IN the result, the appeal is allowed and the order of conviction and sentence is set aside. The appellants, if in custody, set at liberty forthwith. Appeal Allowed .