I. A. ANSARI, J Indian criminal jurisprudence rests on cardinal principle that an accused shall be presumed to be innocent until the time he is proved guilty beyond all reasonable doubt. This basic tenet must be borne in mind by every Court exercising criminal jurisdiction. 2. This appeal has been preferred against the judgment and order, dated 3.11.96, passed by learned Sessions Judge, Tinsukia, in Session Case No. 32(T)/89, convicting the accused-appellant under Section 302/34IPC and sentencing him to undergo imprisonment for life and pay a fine of Rs.50007- and in default, to suffer R.I. for a further period of 2 (two) years. 3. The case of the prosecution, as unfolded at the trial, may, in brief, be stated as follows:- On 7.3.87, one Sri Ajoy Chakraborty of Ledo lodged a written ejahar (Ext. 1), at Ledo Police Outpost, alleging, inter alia, that on that very day i.e., on 7.3.87 at 8.30 p.m., his elder brother, . Ashok Chakraborty, was found lying in a critical condition near his house with an iron arrow struck into his chest and, on being asked, the said injured disclosed that it was Budhuwa Mura, a resident of Natun Line of Ledo Tea Estate, who had shot him with arrow. Treating the said ejahar as First Information Report, Margherita Police Station Case No. 39/87 under Section 326 IPC was initially registered against the accused-appellant, namely, Budhuwa Mura. Later on, as the injured succumbed to his injuries, Section 302 IPC was added thereto and accused Mangra Mura was also impleaded as accused. Inquest was held over the said deadbody and post-mortem examination was also conducted thereon. During investigation, Police arrested the accused-appellant and, on completion of investigation, Police laid chargesheet against the two accused aforementioned under Section 302/34 IPC. 4. During trial, as accused Mangra Mura absconded, he was declared absconder and the trial proceeded against the present appellant when a charge framed under Section 302 read with Section 34 IPC was explained to the appellant, he pleaded not guilty thereto. 5. In all, prosecution examined seven witnesses including the Investigating Officer. When the appellant was examined under Section 313 Cr.P.C, he denied that he had committed the offence alleged to have been committed by him, the case of the defence being that of total denial. No evidence was, however, adduced by the defence. 6. 5. In all, prosecution examined seven witnesses including the Investigating Officer. When the appellant was examined under Section 313 Cr.P.C, he denied that he had committed the offence alleged to have been committed by him, the case of the defence being that of total denial. No evidence was, however, adduced by the defence. 6. The moot point, which has been raised in the present appeal, is this: whether the finding of guilt arrived at by the learned trial Court against the accused-appellant is justified on the basis of the evidence on record and law relevant thereto? 7. We have carefully perused the record including the impugned judgment and order. We have heard Mr P. Mahanta, learned Amicus Curiae, and Mr P. Bora, learned Additional Public Prosecutor, Assam. 8. Upon hearing the appeal and the perusal of the record, we notice that the post-mortem examination conducted, on 9.3.87 at 7 a.m., on the deadbody of deceased Ashok revealed, according to Dr. N. Sonowal (PW-3), as follows:- One penetrating wound l/2 x 1A cm size present 8 cm below and left to the zyphistenal point and 3 cm left to the median line skin, muscles and perforates the anterior abdominal wall enters the anterior surface of the stomach wall and then perforates the stomach and comes, out through the posterior wall of the stomach and enters into the first lumber vertebra at its lateral lumber vertebra at its lateral sight (left side). Total length of the track was 18 cm deep direction anterior posteriorly downward. 9. According to PW-3, the said injury was ante-mortem in nature and death, in his opinion, was caused due to shock and haemorrhage as a result of penetrating wound of the abdomen caused by a sharp pointed weapon (arrow), which was homicidal in nature. PW-3 has further opined that the said injury was sufficient, in the ordinary course of nature, to cause death of the person concerned. 10. We notice that the finding of PW-3 and the opinion given by him with regard to cause of death of the said deceased has not been disputed by the prosecution or the defence. This apart, we do not notice any inherent infirmity in the evidence of PW-3. 10. We notice that the finding of PW-3 and the opinion given by him with regard to cause of death of the said deceased has not been disputed by the prosecution or the defence. This apart, we do not notice any inherent infirmity in the evidence of PW-3. We, therefore, see no reason to disbelieve his evidence that the said deceased had sustained a penetrated wound, as described hereinabove, caused by an arrow, which led to the death of the said injured. 11. Keeping in view of the above aspects of the medical evidence on record, when we come to the evidence of PW-1 (Ajoy Chakraborty), who is informant in this case, we find that this witness has deposed that deceased Ashok Chakraborty was his elder brother and, on the night of the occurrence at about 8.30 p.m., when he was present inside his shop, his sisters, Tapashi and Atashi, informed him that somebody had hit Ashok with an arrow, whereupon he rushed to the spot and found * Ashok lying, at the backside of the house of Kanta Upadhyay (PW-2) with an arrow pierced into the middle of the chest and abdomen and that when he enquired from injured Ashok, the latter did not tell him as to who had hit him. It is in the evidence of PW-1 that he along with Haren Gogoi, Ranjit Sur and Pratap Barua took injured Ashok in a Jeep to Coal India Hospital and got him admitted there and when he, again, asked Ashok, just before the latter was taken on the operation theatre, Ashok said that Mangra and Badhua had hit him with an arrow. It is also in the evidence of PW-1 that he lodged with the Police an ejahar, which is Ext. 1, in the morning, of the following day, Police seized an arrow, at the place of occurrence, vide Ext. 2 (seizure list) and Police held inquest over the said deadbody and Ext. 3 is the inquest report. 12. PW-1 has clarified in his evidence that Haren Gogoi, Ranjit Sur, Mridul Barua and Dr. Dhim Baruah were present with him, when Ashok told him that Mangra and Budhuas had hit him. PW-1 has also clarified in his evidence that before he lodged the ejahar, Ashok had already died. 13. 3 is the inquest report. 12. PW-1 has clarified in his evidence that Haren Gogoi, Ranjit Sur, Mridul Barua and Dr. Dhim Baruah were present with him, when Ashok told him that Mangra and Budhuas had hit him. PW-1 has also clarified in his evidence that before he lodged the ejahar, Ashok had already died. 13. From the evidence of PW-1, it is clear that the deceased did not initially reveal the name of his assailant, but when he was being taken to operation theatre at Coal India Hospital, Margherita, he told PW-1 that Mangra Mura and Budhuwa Mura had hit him with arrow. If what PW-1 has deposed were true, then, there was no reason why the FIR, which PW-1 admittedly lodged after his said elder brother had died, did not mention the name of accused Mangra Mura too as an assailant. This omission shows that PW-1 cannot be treated as a wholly reliable witness and before his evidence is accepted as true, his evidence must be thoroughly examined in the light of the remaining evidence on record. 14. Keeping the above disturbing factor in mind, when we turn to the evidence of PW-4 (Smt Renuka Chakraborty), mother of the said deceased, we find that according to this witness, on the night of occurrence at about 8 p.m., carrying Ajoy's tiffin in her hands, when she was proceeding towards Phula's house (an old woman in their neighbourhood) she found lying, by the side of Phula's house her son, Ashok and Ashok told her that Mangria and Budhun Mura had hit him with an arrow. She has also deposed that she fdund an arrow struck into the left side of Ashok's waist with the bamboo shaft on the surface and its iron head inside the body. PW-4 has further deposed that she gave Ashok some water to drink and sent her daughters to call Ajoy (PW-1) and when Ajoy (PW-1) arrived, Ashok told Ajay also the name of Budhua and Mangra. 15. PW-4 has further deposed that she gave Ashok some water to drink and sent her daughters to call Ajoy (PW-1) and when Ajoy (PW-1) arrived, Ashok told Ajay also the name of Budhua and Mangra. 15. On a combined reading of the evidence of PW-1 and PW-4, what attracts our eyes prominently is that while PW-4 claims that the injured not only told her, but also PW-1 that Mangra Mura and Budhuwa Mura had shot him (injured) with arrow PW-1, surprisingly enough, belies this assertion of PW-4 by deposing that the injured did not reveal name of any assailant at the place, where PW-1 had found the injured lying. 16. Coupled with the above, it is worth noticing that if PW-1 and PW-4 were telling the truth, then, on the very night of the occurrence, the informant knew not only that Budhuwa Mura but Mangra Mura too had shot Ashok with arrow, yet the FIR lodged by PW-1, who is none other than the younger brother of the deceased, did not reveal the name of accused Mangra Mura as an assailant. The conclusion, which is therefore, irresistible to draw is that Mangra Mura's name has been included as an assailant as a subsequent thought and witnesses, who can go to the extent of making such improvements, cannot be implicitly relied upon. 17. Bearing the above glaringly noticeable features of the case in mind, we, now, advert to the evidence of PW-2 (Kanta Upadhyaya) behind whose house, Ashok was found lying injured. This witness has deposed that when he was sleeping in his home, he heard Ashok crying saying that Mangra had assaulted him and, on hearing the cries, when he came out, he found Ashok lying at the backside of his (PW-2's)<house and on being asked, Ashok told him (PW-2) that Mangra had shot an arrow at him. It is in the evidence of PW-1 that he found an arrow struck into the body of Ashok in the midst of the chest and abdomen, whereupon he informed the inmates of Ashok's house, they brought a vehicle and took Ashok to the Coal India Hospital, at Margherita, but Ashok died there. 18. From the evidence of PW-:2, it is abundantly clear that he is a witness, who reached the place of occurrence before any one else or even before the family members of the injured had arrived therfe. 18. From the evidence of PW-:2, it is abundantly clear that he is a witness, who reached the place of occurrence before any one else or even before the family members of the injured had arrived therfe. From the evidence of this witness^ it clearly transpires that when he arrived, at the scene of occurrence, on being attracted by the cries of the injured, he heard the injured saying that Mangra Mura had assaulted him. Not only this, the evidence of PW-1 further shows that on being-pointedly asked, the injured replied by saving it was Mangra Mura, who had shot arrow at him. It is worth emphasising that it was PW-2, who went to the house of the injured and informed his family members about what had happened to Ashok. The evidence of PW-2 is, therefore, of immense importance and his evidence completely rules out the possibility of accused Budhuwa Mura having shot the said deceased with arrow. 19. While the evidence of PW-1 and PW-4, as indicated above, suffers from serious lack of credibility, the evidence of PW-2 has remained, we notice, unshaken and unimpeached. We,? therefore, find it wellnigh impossible to ignore the evidence of PW-2 and if his evidence is given the importance and credibility that it deserves, the vigorously shaken evidence of PW-1 and PW-4 cannot be relied upon. 20. When we turn to the evidence of PW-5 (Rangia Chouhan), we find that this witness has deposed on the night of occurrence, on hearing Ashok's cries that Mangra and Budhuwa had hit him, we went to call Ajoy, but before going to call Ajay, he had a look at Ashok and saw, in the light of lamp, Ashok lying with an arrow sticking into his body, he (PW-5) informed Ajoy and, then, went to the police station; police came, but he did not go to see Ashok, because ;he was feeling bad. 21. From the evidence of PW-5, it appears that he was the one, who went to the Police Station and, on receiving information from' him about the occurrence, Police came. 21. From the evidence of PW-5, it appears that he was the one, who went to the Police Station and, on receiving information from' him about the occurrence, Police came. This assertion of PW-5 is not at all supported by the I.O. (PW-7) inasmuch as the evidence of PW-2 gives no indication that PW-5 lodged any information with* Police about the occurrence; rather, belying the said assertions of PW-5, PW-7 has, in tune with the evidence of PW-1; deposed that it was PW-1, who had lodged the ejahar informing the Police about the occurrence and, on being so informed, Police arrived at the place of occurrence. Since a material portion of the evidence of PW-5, is, thus, belied by the evidence of the IO, we find that the discredited evidence of PW-5 cannot be used for.brushing aside the unimpeached and-unshaken evidence of PW-2, particularly, when belying the assertions of PW-5 that he (PW-5) had informed PW-1 about the occurrence, even the evidence of PW*1 shows that it was not PW-5, but it was PW-l's sisters' Tapashi and Atashi (none of whom have been examined) who had informed PW-1 about the occurrence and, on being so informed by them, PW-1 came to the place of occurrence. Neither the evidence of PW-1 nor the evidence of his mother (PW-4) gives any indication that PW-5 had found the injured lying or had informed anyone about the occurrence or about the fact that Ashok had been found lying injured by him. 22. To enable a Gojurt to place reliance on a dying declaration, the dying declaration has to inspire confidence and a dying declaration canot inspire confidence unless it is proved to be consistent. If there are different versions given by different witnesses as to whose name/names an injured had disclosed as his assailant/assailants, such a dying declaration will be highly unsafe to place reliance upon. 23. Thus, even; if, for a moment, we assume that the evidence given by PW-1, PW-4 and PW-5, on the one hand, and PW-2, on the other hand, are both true, the logical conclusion will be that while the said victim was lying injured with an arrow pierced in his chest, he, admittedly, made inconsistent statements indicating, sometimes, that it was Mangra Mura alone, who hadlinjured him, and, sometimes, indicating that Budhuwa Mura as well as Mangra Mura had both injured him. Since the deceased is shown to have made two distinctly different and irreconcilable assertions as regard the name/names of his assailant, it will be highly unsafe, in our view, to place any reliance on the so-called dying declaration of the. deceased that Budhuwa Mura too was involved in the occurrence, particularly, when at the initial stage, the deceased had named only Mangra Murtf as his assailant. 24. Coupled with the above, we have to also bear in mind that when prosecution adduces two sets of witnesses, one contradicting the other, and the Court is not a position to hold confidently as to which set of witnesses has told the truth, then, both sets of witnesses have to be discarded 'or, at least, the set of evidence, which goes-in favour of the accused shall be adopted by the Court. Reference may be made to Harchand Sigh and another-Vs-State-of Haryana ( AIR 1974 SC 344 ). Keeping in mind this salutary principle of criminal law in mind, when we revert to the case before us, we find that the evidence given by PW-2 not only projects Mangra Mura alone as assailant of the deceased Ashok but it rules out the possibility of the present appellant having shot the, deceased with arrow or having helped Mangra in killing the deceased by shooting the latter with arrow. Viewed from this angle too, we have no option but to discard the evidence of PW-1, PW-4 and PW-5 as unsafe to place reliance upon. 25. Since the trial against the accused Mangra Mura is still incomplete, we do not wish to make any comment on the evidence on record, which may point to Mangra Mura as a possible assailant. We, therefore, keep ourselves completely confined to the appreciation of evidence on record vis-a-vis the case of the accused-appellant. On a close and dispassionate analysis of the evidence on record, we are firmly of the view that depending upon the inconsistent evidence on record regarding the dying declaration it will be highly hazardous to place reliance on the evidence of PW-1, PW-4 and PW-5'to found conviction of the accused-appellant. 26. Situated thus, we hold that the evidence on record is not adequate to bring home the charge against the appellant beyond all reasonable doubt and the appellant deserves to be given benefit of doubt. 27. In the result and for the reasons discussed above, this appeal succeeds. 26. Situated thus, we hold that the evidence on record is not adequate to bring home the charge against the appellant beyond all reasonable doubt and the appellant deserves to be given benefit of doubt. 27. In the result and for the reasons discussed above, this appeal succeeds. The impugned judgment and order are set aside. The accused-appellant is held not guilty of the charge framed against him under Sections 302/34 IPC and he is acquitted of the same. 28. Let the accused-appellant be set at liberty forthwith unless he is required to be detained in connection with any other case.