P. K. PATRA, J. ( 1 ) THE appellant has challenged the judgment dated 26-8-1997 passed by Shri S. C. Misra, Sessions Judge, Puri in S. T. No. 401 of 1995 convicting him under S. 304, Part I of the Indian Penal Code (for short 'ipc') and sentencing him to undergo rigorous imprisonment for ten years. ( 2 ) BRIEFLY stated, the prosecution case runs as follows :on 25-4-1995 at about 8 p. m. the appellant (hereinafter referred to as 'the accused') due to a sudden quarrel assaulted deceased-Babula Das alias Bhoi in front of the grocery shop belonging to Bhagaban Sahu (P. W. 8) at Atharnala, at the outskirt of Puri Town by means of a bamboo stick on his head, as a result of which the deceased fell down sustaining profuse bleeding injuries on his head and also on his back and left leg. He was immediately removed to hospital for treatment. P. W. 5, father-in-law of the deceased, getting information about the occurrence rushed to the hospital and at about 12 midnight he lodged written report (Ext. 3) before P. W. 13, an S. I. of Police attached to Puri Sadar P. S. , who treated the same as FIR under S. 307, I. P. C. read with S. 3 of the S. C. and S. T. (P. A.) Act and directed P. W. 12, an A. S. I. of the said P. S. to take up investigation. During investigation P. W. 12 visited the spot, examined the informant and other witnesses and issued requisition for medical examination of the injured. The injured was shifted to the S. C. B. Medical College Hospital, Cuttack for treatment on 27-4-1995 where he succumed to the injuries. P. W. 13 took over charge of investigation from P. W. 12 on 27-4-1995 after receiving information from the I. I. C. of Mangalabag P. S. , Cuttack that the deceased succumbed to the injuries. P. W. 13 arrested the accused on 27-4-1995 and while in police custody the accused led P. W. 13 to recovery of the bamboo lathi, the weapon of offence, which he had concealed in the house of one Babaji Charan Patra. P. W. 13 seized the said lathi (M. O. I.) under the seizure list Ext. 2. He also seized a blood-stained napkin (M. O. II), sample hair of the deceased under the seizure-list Ext. P. W. 13 seized the said lathi (M. O. I.) under the seizure list Ext. 2. He also seized a blood-stained napkin (M. O. II), sample hair of the deceased under the seizure-list Ext. 5 on production by a Constable after the post-mortem examination of the deceased. P. W. 13 also seized one stone (M. O. III) under the seizure list Ext. 4 from the spot since it was alleged that the accused attempted to assault the deceased by means of the said stone, which had been snatched away by P. W. 9. He sent the seized lathi (M. O. I.) for examination and opinion by the Medical Officer as to whether the injuries found on the deceased could have been caused by the said lathi and the medical officer opined in the affirmative. The seized napkin (Lungi) and hair of the deceased were sent for chemical examination. After completion of investigation, P. W. 13 submitted charge-sheet under S. 302, I. P. C. and S. 3 (2) (v) of the S. C. and S. T. (P. A.) Act and the accused stood his trial. The learned Sessions Judge found the accused not guilty of the said charge, but found him guilty under S. 304, Part I of I. P. C. and inflicted the sentence as stated earlier. The accused pleaded not guilty to the charge and the defence plea was of complete denial. ( 3 ) IN order to bring home the charge against the accused, prosecution examinedthirteen witnesses in all, of whom P. W. 5 is the informant, P. Ws. 1, 8 and 9 are eye-witnesses to the occurrence and P. W. 2 is the medical officer who conducted post-mortem over the dead-boy of the deceased and submitted his report, Ext. 1. P. W. 10 is another medical officer who treated the injured at the Puri Headquarters Hospital after his admission. P. W. 3 was a witness to seizure of the lathi (M. O. I.) who turned hostile and was cross-examined by the prosecution. P. W. 4 was another witness to seizure of the lathi (M. O. I. ). P. W. 6 is the brother of the deceased who reached the spot after the occurrence and removed the injured for treatment to the District Headquarters Hospital, Puri. P. W. 4 was another witness to seizure of the lathi (M. O. I. ). P. W. 6 is the brother of the deceased who reached the spot after the occurrence and removed the injured for treatment to the District Headquarters Hospital, Puri. P. W. 7 was a witness to seizure of the stone (M. O. III) from the spot and the napkin (M. O. II) on production by a Police Constable. P. W. 11 is the A. S. I. of Mangalabag P. S. , Cuttack who conducted inquest over the dead-body of the deceased and sent the dead-body for post-mortem and also sent the wearing apparel and hair of the deceased to the I. O. P. Ws. 12 and 13 were the I. Os. Learned Sessions Judge placed reliance on the statements of P. Ws. 1 and 9 as also on other circumstancial evidence available on record and convicted the accused as stated above. ( 4 ) MR. Mohanty, learned counsel for the appellant, contended that the learned Sessions Judge has failed to properly appreciate the evidence on record and has come to the erroneous conclusion as to culpability of the accused and hence the impugned judgment is not legally sustainable and is liable to be set aside. Learned Addl. Standing Counsel for the State supported the impugned judgment contending that no interference in the impugned judgment is called for. ( 5 ) P. W. 2, who conducted the post-mortem found the following external injuries on the dead-body of the deceased :- (i) one lacerated and stitched wound of 6 cm. long with abraded margin situated on the left parietal eminence of the head 9 cm. above the left ear. (ii) one abraded contusion 12 cm. x 7 cm. situated on the front of left leg, 4 cm. below the lower border of left patella. (iii) one contusion 7 cm. x 4 cm. situated on the outer aspect of left arm. (iv) both sides eyes looked bluish black with black eye formation. On dissection, P. W. 2 found the following internal injuries :-THE under surface of the scalp was contused with extra-vasation and thick sub-scalpal haematoma, mostly on the left side of the head corresponding to external injury No. 1. A fissure fracture of 10 cm. long detected on the skull bone over left parietal bone which extended from a point of 2 cm. A fissure fracture of 10 cm. long detected on the skull bone over left parietal bone which extended from a point of 2 cm. behind the left parietal eminence running anteriorly over the left parietal eminence to join an area of depressed and communicated fracture of 6 cm. x 3 cm. being placed on the left frontal bone just in front of coronal suture. Another fissure fracture extended forward and medially from the depressed area over the frontal bone for 6 cm. to the medial end of left eyebrow, 2 cm. thick extradural haematoma was found on the left side mostly over left parieto tempero frontal area with flattening of underlying brain surface corresponding to fractures of the skull bone, left frontal lobe of brain found contused and lacerated. The inferior surface of left temporal, the tip of right frontal, outer aspect of right temporal and right parietal lobes of brain were found contused with intra-cerebral haemorrhage in the substance of left frontal lobe. The fracture lines extended to the base of skull over left orbital plate and left side middle cranial fossa, which contained extradural blood clots. In the opinion of P. W. 2, all the injuries as stated above were ante-mortem in nature. The death was due to the cranio cerebral injuries resulting from blunt force trauma on head. The time of death was within eighteen to twenty four hours of the post-mortem and that external injury No. 1 and its corresponding internal injuries were fatal in ordinary course of nature. ( 6 ) ADMITTEDLY the informant (P. W. 5), father-in-law of the deceased, was not an eye-witness to the occurrence and he rushed to the spot getting information about the occurrence and collecting information from the witnesses present, he lodged the FIR (Ext. 3) in which he alleged that the accused and one Pankaj Bhoi, a rickshaw puller of Puri Town, had enmity with the deceased and they had threatened the deceased with murder and were waiting for an opportunity. Further it is alleged that the accused threw away the bamboo stick at the spot after the assault and fled away. 3) in which he alleged that the accused and one Pankaj Bhoi, a rickshaw puller of Puri Town, had enmity with the deceased and they had threatened the deceased with murder and were waiting for an opportunity. Further it is alleged that the accused threw away the bamboo stick at the spot after the assault and fled away. There is no mentionregarding attempt of the accused to assault the deceased by means of a stone which was allegedly snatched away by P. W. 9, P. W. 1 has stated that the occurrence took place at about 8 p. m. in front of the grocery shop of P. W. 8 and she witnessed the occurrence as she had gone to purchase grocery articles from that shop. She has introduced a new story that the accused wanted to assault the deceased by means of a stone, but was prevented by P. W. 9. Immediately thereafter the accused brought a lathi and dealt a blow on the head of the deceased, as a result of which the deceased fell down on a bench lying there, whereafter the accused dealt another lathi blow on the left leg of the deceased and seeing the occurrence she raised alarm. She has not specified whether it was a bamboo stick or a wooden stick with which the accused assaulted the deceased and from where he brought that stick. In her statement in cross-examination P. W. 1 has stated that she was 'bhauja' (sister-in-law) of the deceased by village courtesy, but has hastened to add that she was not related to the deceased in any way. She has stated that the grocery shop of P. W. 8 is situated on the left side of the road from Bhubaneswar to Puri, which is contrary to the statement of the I. O. P. W. 12, who has stated that the grocery shop of P. W. 8 is situated on the left flank of the road from Puri to Bhubaneswar and he has prepared the spot map, Ext. 11, showing the spot. 11, showing the spot. ( 7 ) P. W. 9 has stated that while he was going towards Puri in a rickshaw at about 5 p. m. he found the accused and the deceased exchanging hot words against each other and the accused lifting a stone, seeing which he jumped from the rickshaw and snatched away the same from the accused and thereafter left the spot. He has stated that the stone (M. O. III) was not the stone which he snatched away from the accused. In his statement in cross-examination P. W. 9 has stated that the accused picked up a stone lying on the road side and after the stone was snatched away from him, the accused left the place and the deceased proceeded from the spot while abusing the accused. P. W. 9 has not stated about assault on the deceased by means of the bamboo stick by the accused. The other eye-witness to the occurrence, i. e. P. W. 8, who is a material witness for the prosecution, has not supported the prosecution case and has resiled from his earlier statement made before the I. O. and has been cross-examined by the prosecution. ( 8 ) THUS it is found that the statements of P. Ws. 1 and 9 are bristling with discrepancies and infirmities with regard to the time of occurrence and the assault on the deceased. Though P. W. 1 has stated that the accused picked up a stone to assault the deceased and being prevented by P. W. 9 threw the same and brought a lathi and dealt a blow on the head of the deceased and another blow on the left leg after the deceased fell down on a bench and that it was 8 p. m. , P. W. 9 has stated that it was 5 p. m. when he found the accused and the deceased exchanging hot words and the accused attempting to assault the deceased by means of a stone picked up from road side when he jumped from the rickshaw and snatched away the said stone. P. W. 9 is completely silent regarding assault on the deceased by the accused by means of a bamboo stick. P. W. 9 is completely silent regarding assault on the deceased by the accused by means of a bamboo stick. In view of the discrepancies and infirmities noticed in the statements of the two eye-witnesses to the occurrence, namely, P. W. 1 and P. W. 9, which cannot be ignored as minor ones, it will be quite unsafe to place reliance either on P. W. 1 or P. W. 9. ( 9 ) P. W. 11, who held inquest over the dead-body of the deceased, has mentioned in the inquest report, in Col. 6 thereof, that the deceased was assaulted by means of an iron pipe. As per the statement of P. W. 1, the accused threw the stick on the spot and fled away after assaulting the deceased, but the I. O. (P. W. 13) has stated that the accused while in police custody led him to recovery of the weapon of offence, i. e. the lathi (M. O. I.) stating that he had concealed the same and M. O. I. was seized under the seizure list Ext. 2 in presence of witnesses. P. W. 3 has stated that police seized one lathi from the house of one Babaji Patra, but he has not stated that the accused while in police custody made any statement or led the I. O. to recovery of the said lathi. P. W. 4 has stated that the accused while in police custody brought out a bamboo lathi from the house of one Patra and that bamboo lathi was seized under the seizure list Ext. 2, but in his statement in cross-examination he has stated that there was a gathering of about twenty persons near the house of the aforesaid Patra besides the Police Officers and the bamboo lathi was also there at the time ofhis arrival and police informed him that the accused brought out the said lathi from a dilapidated house. P. W. 4 did not identify the bamboo lathi seized in this case. Though the I. O. (P. W. 13) has stated that he sent the said lathi to the medical officer for his examination and opinion, the medical officer (P. W. 2) has stated that he did not remember if the weapon of offence was produced before him at the time of conducting the post-mortem. Though the I. O. (P. W. 13) has stated that he sent the said lathi to the medical officer for his examination and opinion, the medical officer (P. W. 2) has stated that he did not remember if the weapon of offence was produced before him at the time of conducting the post-mortem. The other medical officer (P. W. 10) has stated that on 14-7-1995 at 5 p. m. one bamboo lathi was produced before him for his examination and opinion as to whether the injuries found on the deceased could have been caused by the same and that his opinion was in the affirmative as per Ext. 8. But P. W. 10 is not definite whether the bamboo lathi (M. O. I.) had been sent to him for his examination and opinion. In his statement in cross-examination P. W. 10 has stated that the lathi M. O. I. did not contain his signature. That apart, the two medical officers, P. W. 2 and P. W. 10, differed on the question as to whether the injuries found on the deceased were possible due to fall or not. The opinion of P. W. 2 is in the negative, whereas the opinion of P. W. 30 is in the affirmative. Thus from the disquietening features noticed in the investigation, the recovery of the bamboo lathi (M. O. I.) cannot be considered as an incriminating material against the accused and the discrepancies in the statements of the two medical officers as well as the discrepancies and infirmities in the statements of the two eye-witnesses to the occurrence would lead to the inevitable conclusion that prosecution has not been able to prove the guilt of the accused beyond all reasonable doubts by leading cogent, convincing, credible and unimpeachable evidence. ( 10 ) IN the case of State of Punjab v. Sucha Singh, reported in 1973 Cri App R (SC) 393 : (1974 Cri LJ 364), it was held that interference was not called for in the acquittal of the accused when there were infirmities in the prosecution case and the witnesses examined by the prosecution were interested and their evidence was such upon which implicit reliance could not be placed. In the case of Salveraj v. State of Tamil Nadu, reported in AIR 1976 SC 1970 : (1976 Cri LJ 1541), it was held that when the evidence led on behalf of the prosecution was wholly unsatisfactory and it could not be regarded as sufficient to base the conviction of the appellant for the murder of the deceased, the appellant was entitled to an acquittal. In the case of Ram Ashrit Ram v. State of Bihar, reported in (1983) 1 Crimes 131 : (1981 Cri LJ 484) (SC), it was held that when the prosecution witnesses are either inter-related or otherwise interested in the prosecution, before their testimony could be safely acted upon, it had to pass the test of close and severe scrutiny and that it is extremely hazardous to convict the accused persons on the basis of the testimony of the highly interested, inimical and partisan witnesses, paticularly when it bristles with improbable version and material infirmities. In the case of Akhaya Naik v. State of Orissa, reported in (2000) 19 OCR 199, it has been held that when there are discrepancies in the evidence of eye-witnesses as regards the weapon of offence held by the accused and the statements of the witnesses are not consistent with each other and with the medical evidence on record, presence of witnesses at the spot at the time of occurrence was doubtful. In the case of Rudra Patra v. State, reported in (2000) 90 Cut LT 576 : (2001 Cri LJ 220), it has been held that when the evidence of the eye-witnesses to the occurrence is not consistent with each other, it would be quite unsafe to place reliance on them and would be hazardous to convict the accused. ( 11 ) IN view of the discussions made above, and keeping in view the principles enunciated in the cases referred to above, the accused will be entitled to the benefit of doubt and cannot be convicted under S. 304, Part I of I. P. C. and will be entitled to an acquittal. The learned Sessions Judge arrived at an erroneous conclusion and convicted the accused. Hence, the impugned judgment convicting the accused cannot be legally sustained and is liable to be set aside. ( 12 ) IN the result, the Jail criminal appeal is allowed. The learned Sessions Judge arrived at an erroneous conclusion and convicted the accused. Hence, the impugned judgment convicting the accused cannot be legally sustained and is liable to be set aside. ( 12 ) IN the result, the Jail criminal appeal is allowed. The impugned judgment of the learned Sessions Judge, Puri dated 26-8-1997 in S. T. No. 401 of 1995 is set aside. The conviction of the accused and thesentence passed thereunder are set aside. The accused is given the benefit of doubt and is acquitted. He be set at liberty forthwith if his detention in jail custody is not required in connection with any aother case. Appeal allowed.