JUDGEMENT 1. Both these Crl. Revn. and Crl. Appeal are directed against the same judgment of Addl. Sessions Judge, Nagaon, passed in Sessions Case No. 166 (N)/97 on 23-9-98. The revision-petition filed wrongly was substituted by Crl. Appeal later and both have been tagged together for disposal. 2. By the impugned judgment and order of conviction and sentence the appellant was convicted u/Ss. 457 and 323 of IPC and sentenced to undergo S.I. for one year and to pay a fine of Rs. 500, in default of fine, to further S.I. for one month for offence u/S. 457, IPC. He was also sentenced to one year S.I. for offence u/S. 323, IPC. Both sentences were ordered to run concurrently. Being aggrieved this appeal has been presented. 3. I have heard learned lawyer for the appellant, None appeared for the respondent. Perused the materials in the Lower Court Records, that was called for, including the impugned judgment and evidence on record in particular. 4. The quintessence of the allegations against the appellant Shri Siddique Hussain, aged 45, a school teacher by occupation, is that he entered the living room of Md. Mansur Ali, another retired school teacher and his own uncle on 11-4-97 at midnight with an axe in hand by breaking open the door with help of the said axe and started hitting the walls, roofs of the room in a haphazard manner as a result of which acts Mansur Ali sustained injuries on his leg. That the accused appellant fled away due to cries and alarm raised by inmates of the house and neighbours although from his action it could be guessed that he came to murder the said Mansur (FIR version). 5. The written FIR being lodged by Abdul Hussain, the son of the victim on 12-4-97 at about noon on the following date at Juria P.S. it was registered as case No. 71/97 u/Ss. 457/307/323, IPC of the same P.S. and S.I. Ibrahim Ali, I/c of Dagaon was entrusted with the charge of investigation by the then O/C of the Police Station, S.I. Hazarat Ali. The investigation finally ended in submitting charge-sheet against the appellant u/Ss. 457/307/323/427, IPC and in due course, observing the formalities, the case was committed to Court of Sessions at Nagaon, which transferred it to Court of Additional Sessions Judge, Nagaon, for disposal etc. 6. Trial began against the appellant framing charges u/Ss. The investigation finally ended in submitting charge-sheet against the appellant u/Ss. 457/307/323/427, IPC and in due course, observing the formalities, the case was committed to Court of Sessions at Nagaon, which transferred it to Court of Additional Sessions Judge, Nagaon, for disposal etc. 6. Trial began against the appellant framing charges u/Ss. 307/457/323 of IPC. The charges when read over and explained to him, he pleaded not guilty to them and trial proceeded ahead. 7. Prosecution examined 7 witnesses to substantiate the charges, P.W. 1, Musstt. Ramisha Khatoon (aged 65) is wife of the victim, PW. 2 Haji Mansur Ali (aged 62), (retired). P.W. 3 Rafique (aged 28), a lower primary teacher, PW. 4 Saidul Islam (aged 16), domestic servant of victim, PW. 5 Dr. Habibur Rahman (aged 48), SDM and HO, Dagaon PHC, PW. 6 Abdul Hussain (aged 30) an advocate, the informant and son of PW. 2, and PW. 7 Md. Ibrahim Ali (aged 38), the I.O. (investigating Police Officer) are the other witnesses examined. Defence is denial simplicitas and no defence witness was examined. 8. Trial Court, however, recorded an order of acquittal, in so far the charge u/S. 307, IPC was concerned, in favour of the appellant on the grounds recorded as hereunder, I quote :- "The crux of the whole case lies in the question whether the accused attempted to commit the murder of Mansur Ali. The evidence is that he gave two axe blows one of which fell on the mosquito net stand and the other no doubt fell on the foot of Mansur Ali. But the evidence is also that the accused used the blunt side of the axe and the resultant injury was simply a bruise. Therefore, if the assailant had the intention to commit the murder of Mansur Ali he would definitely have used the sharp edge of the hatchet and the resultant injury would have been grievous in nature. But nothing like that happened. Therefore, the accused cannot be held guilty of committing an offence of 307 of the IPC." 9. Very many grounds have been raised by the appellant spreading over eleven pages of the petition of appeal but most of them are by way of repetitions with change of words or sentences here and there. But nothing like that happened. Therefore, the accused cannot be held guilty of committing an offence of 307 of the IPC." 9. Very many grounds have been raised by the appellant spreading over eleven pages of the petition of appeal but most of them are by way of repetitions with change of words or sentences here and there. The substance of the same being that there was a case of mis-appreciation of evidence, non-examination of disinterested persons and neighbours of the victim and non-reading of evidence etc. etc. 10. Whatever may be the nature of the commission or the gravity of the crime, the perpetrator of it cannot be convicted for the crime unless there is cogent evidence to rule out innocence and positive assertion of fact with plausible explanation for his involvement in the commission of it beyond doubts, which under the particular facts and circumstances of the case, are but reasonable. We cannot remain oblivious of the view expressed by Hon'ble Apex Court in this regard :- "A miscarriage of justice that may arise from the acquittal of the guilty is no less than from the conviction of the innocent" AIR 1973 SC 2622 : (1973 Cri LJ 1783) : AIR 1988 SC 2154 : (1989 Cri LJ 288). In accordance with the definition of the word "proved" in Evidence Act the credibility of the witness deposing to prove the fact must be assured because it is another cardinal principle of the law of evidence that witness may lie but circumstances do not. We decide facts only on evaluation of evidence of credible witnesses. 11. In the instant case the ocular testimonies adduced from prosecution are of the close relations, may be natural witness, and hence an invincible corroboration will be demanded to procure any order of conviction for the appellant, who is also a relation of the victim seeking justice in this appeal. The FIR, Ext. 1, was lodged by PW. 6. It mentions that on forging his entry inside the living room of the alleged victim PW. 2, the appellant took immediate recourse to an act of brandishing his axe indiscriminately and haphazardly striking against walls, roofs of the room as a result of which PW. 2 sustained injuries on his leg. In other words, there is no mention of any direct striking of hitting on the person of PW. 2, the appellant took immediate recourse to an act of brandishing his axe indiscriminately and haphazardly striking against walls, roofs of the room as a result of which PW. 2 sustained injuries on his leg. In other words, there is no mention of any direct striking of hitting on the person of PW. 2 by the appellant soon after effecting his entry inside by breaking open the doors by means of an axe. 12. There is no evidence who wrote the FIR, PW. 6 stated in his deposition on oath that he heard cries coming from the living room of his father "Siddique has beaten" along with sound of breaking of door and after opening the door he saw Siddique coming out of the room. It was moon-lit night and electric bulb was burning outside. Coming to the evidence of PW. 2 he stated that there was no enmity with the accused/appellant, who is his nephew residing 11/2 K.M. apart from his house. On the date of occurrence on 11-4-97 lamp was burning inside and electric bulb outside his living room and about 12 O'clock in the mid-night, he was awakened by sound at the door. The door gave way on three strokes and one person got in with an axe in hand and aimed a stroke on his body which fell on the stand of mosquito net and it got broken. He dogded off from the second stroke which would have killed him and it hit on his leg. He identified the assailant as Siddique (appellant). Further statement of PW. 2 on oath is that he asked appellant what he wanted and raised an alarm crying out. "I am being killed why none of you are coming forward". That at that time the appellant said - "give me the articles". That his wife was stunned to silence out of fear and due to the alarm raised by them appellant fled away and thereafter his sons Abul (PW. 6) and Khayer appeared. During his cross-examination PW. 2 stated further that he initially thought there were dacoits but he raised no alarm. That P.W. 6 was watching T. V. at that time, that the appellant was identified when he came closer and that thereafter he raised the alarm. That he was hit by blunt side of the axe etc. etc. 13. During his cross-examination PW. 2 stated further that he initially thought there were dacoits but he raised no alarm. That P.W. 6 was watching T. V. at that time, that the appellant was identified when he came closer and that thereafter he raised the alarm. That he was hit by blunt side of the axe etc. etc. 13. A cautious study and curious look into his oral testimony will convince any person of ordinary prudence that PW. 2 is not giving the natural sequence of any events. It is difficult to believe he counted the strokes, had knowledge of his son watching T.V. when he was asleep. His not reacting till the culprit came closer to him is unnatural. Then again, it is not natural that the assailant making the first stroke with sharp edge of an axe will just reverse it and hit with blunt side, if he entered intending to kill and mysteriously the second stroke resulted only in a bruise of size 1" x 1" on middle part of left leg as per the medical evidence given by doctor (PW. 5). PW. 5 during cross-examination admitted that such injury may result from dashing against hard substance. A blow from a middle aged man of 45 with an axe is not likely to cause only a bruise of 1" x 1" when a similar stroke had broken the wooden stand of mosquito net. As per medical jurisprudence bruise is an injury to the underlying tissues and may occur due to varied reasons. If PW. 2 is to be believed, for absolutely no reason the appellant attacked him at dead of night with an axe by breaking open the door. I am afraid it does not come under normal human conduct. Then again, the contents of FIR have not recorded any such version of the incident, even if there was any. P.Ws. 2 and 6 have failed to corroborate the facts given in the FIR briging infirmity in the story. The FIR specifically stated that accused fled when inmates and neighbours raised alarm. FIR omitted to mention any direct hitting to PW. 2 by the accused/appellant. 14. PW. 1 stated on oath that she and PW. 2 were sleeping on the same bed and both of them woke up hearing sound from the door and noticed the door open. The FIR specifically stated that accused fled when inmates and neighbours raised alarm. FIR omitted to mention any direct hitting to PW. 2 by the accused/appellant. 14. PW. 1 stated on oath that she and PW. 2 were sleeping on the same bed and both of them woke up hearing sound from the door and noticed the door open. That appellant entered breaking the door with axe and broke the stand of mosquito net and hit PW. 2 injuring him on leg. On alarm being raised appellant fled away and her sons Abul (PW. 6) and Khayer came and they (PW. 1/2) reported the incident to them. P.W. 1 during cross-examination stated that later Aimul. Maniruddin and Baharuddin came and were also reported about the incident. During her cross-examination she stated that for last one year they were not on visiting terms with the appellant and for ten minutes the act of breaking the door continued and they cried out that 'dacoits have attacked' etc. Thus, one can argue that PW. 1 failed to corroborate the later part of the statements of PW 2. However, her corroboration is not a must and the minor contradictions may be overlooked. 15. PW. 3 is the only independent witness examined. PW. 2 stated that Ainnuddin and Rafiqu (PW. 3) came after the incident and were told about the incident. PW. 3 in his statement on oath stated that somebody awakened him from sleep and he heard hue and cry coming from the house of Mansur. That Mansur told him that appellant entered his (PW. 2) room and assaulted him. During his cross-examination PW. 3 stated that his house was adjacent to that of PW. 2 but he could not find the appellant near about the place of occurrence. So, PW. 3 will have importance if and when PW. 2 is believed. PW. 3 is only a reported witness who cannot improve the prosecution version. Moreover I.O. proved serious contradiction in his statement (to be discussed later). PW. 3 omitted to mention use of assault by any axe. 16. PW. 4 is a minor boy of 16 and domestic servant PW. 4 stated that he noticed appellant going out of living room of PW. 2 from beneath his bed upon 'chang' (a bedstead made of bamboos) and through the hole in the wall made of jute plants. PWs. 3 omitted to mention use of assault by any axe. 16. PW. 4 is a minor boy of 16 and domestic servant PW. 4 stated that he noticed appellant going out of living room of PW. 2 from beneath his bed upon 'chang' (a bedstead made of bamboos) and through the hole in the wall made of jute plants. PWs. 3, 4, 6 can have impact only when PW. 2 and PW. 1 can be believed. I.O. proved contradiction in evidence of PW. 4 also. 17. PW. 6 stated that he found on entering the room of his father that his father was lying (where he did say) and both (PWs. 1 and 2) of them were crying. there was no such statement either from PW. 2 or PW. 1 that they ever cried during or after the incident. They only raised alarm before the accused fled away. PW. 6 also stated that he, on opening the door, noticed appellant coming out with axe in hand and they were face to face but he made no attempt to catch him (during cross-examination) nor asked anybody to apprehend Siddique. It does not sound natural and probable human behaviour. He failed to corroborate FIR and his statement before I.O. was contradictory to what he was giving on oath. 18. Lastly, coming to the evidence given by the I.O. (PW. 7), he stated that informant (PW. 6) was examined on 12th at 1.00 p.m. by him at the Police Station itself and thereafter he visited the P.O. and that PW. 6 did not state before him that his father told him that he cried out saying "Siddique has beaten me". Not only that PW. 7 stated further that PW. 6 did not state before him that appellant gave a second stroke, that Saidul (PW. 3) told before him that he could identify appellant, that a lamp was burning inside the room of his father and that while escaping the appellant was face-to-face with him etc. So, all the facts given by PW. 6 suffer from material contradictions by way of omission while making statement before I.O. u/S. 161 of Cr. P.C. thus shaking the very genesis of the prosecution case because it was PW. 6 who was examined before examining any other witness. Then again, PW. 6 miserably failed to corroborate the facts given by him on his FIR. PW. 6 suffer from material contradictions by way of omission while making statement before I.O. u/S. 161 of Cr. P.C. thus shaking the very genesis of the prosecution case because it was PW. 6 who was examined before examining any other witness. Then again, PW. 6 miserably failed to corroborate the facts given by him on his FIR. PW. 7 also admits he prepared the sketch-map of P.O. but thereupon he did not show house of the servant PW. 4. That he did not seize any lamp or lantern nor the broken stand of mosquito net, PW. 7 also admitted that PW. 3 did not state before him that P.W. 2 told him (PW.3) that he (PW. 2) was assaulted by the appellant. This being the position PW. 2 is isolated in his statements. So far his credibility is concerned it is not there as per discussions made before hand. A person coming at dead of night armed with an axe to kill is not expected to leave inflicting a bruise of 1" x 1" on leg missing his aim on any vital part of the body of the victim, particularly when the evidence is that he was not confronted by anyone even with the slightest resistance. If there was truth in the story the alarm of "attack by dacoit" would have attracted the neighbouring people. PW. 3 being close neighbour made an indifferent statement with contradiction, proved by I.O. Therefore, under all probability the case was false and vindictive in nature. FIR stated accused left when alarm was raised by inmates of house and neighbours which fact is in direct conflict with evidence of PWs. 2/6. 19. It will be quite significant to note here that learned trying Court found no truth in the other part of the story with accusation of offence u/S. 307, IPC and incidentally commented :- "......if the assailant had the intention to commit the murder of Mansur Ali he would definitely used the sharp edge of the hatchet and the resultant injury would have been grievous....." If that is not there, it is difficult to believe that the appellant entered the room at midnight only to commit an offence u/S. 323 of IPC. The finding of trying Court is therefore, unwise, even if not perverse. Evidence, I repeat, is to be weighed as a whole and not in piece-meal. 20. The finding of trying Court is therefore, unwise, even if not perverse. Evidence, I repeat, is to be weighed as a whole and not in piece-meal. 20. In the result, I find there is merit in the appeal. Appeal is allowed. Judgment of conviction and order of sentence passed upon the appellants are set aside. 21. Appellant Siddique Hussain is acquitted of the charges u/Ss. 457 and 323 of IPC and set at liberty at once. Bail bond stand is discharged. Appeal allowed.