BILAL NAZKL, J, J. ( 1 ) THIS is an appeal against the conviction and sentence under section 302 of IPC. Two accused were tried in Sessions Case No. 525 of 1996 on the file of the Sessions Judge, Nalgonda. A1 and a2 were charged with an offence under section 302 read with Section 34 and A2 was also charged with an offence under section 324 of IPC. A2 was acquitted, whereas A1 was convicted of the offence under Section 302 of IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs. 100/-, in default he has to undergo simple imprisonment for one week. ( 2 ) THE allegations against the accused were that on a or about 16-1-1996 at about 7-00 p. m. , at Boorugadda village A1 committed the murder of Kastala Gopaiah by beating him with an axe on his head, when A2 caught hold of him. There was an additional charge against A2 that he voluntarily caused hurt to Kustala venkateshwarlu. When the charges were framed, the accused pleaded not guilty and they were tried. The prosecution examined 11 witnesses and exhibited 17 documents. ( 3 ) PW1 is the son of the deceased. He knew A2. He stated that while he was returning home after doing his job of restoring streetlights, as he has been employed by Sarpanch, when he found A1 and A2 quarrelling with each other. Bollepally Kanakamma and her son-in-law were also there watching the quarrel between the accused. When Bollepally Kanakamma intervened, they asked her to leave the place. A2 abused Bollepally Kankamma and pushed her. Kasiala Pedda Lachaiuh also questioned him as to why he was pushing the lady, while abusing him in filthy language. The A2 gave a slap to Kastala pedda Lachaiah. At that time his father was sweeping front yard of his house. On seeing A2 giving the slap to Kastala Pedda lachaiah, he intervened. Then A2 pushed the witness s father who fell down. Me got up and started questioning A2. A2"s brother A1 picked up an axe and axed his father on his head. A2 tried to beat his father with a stick. When he intervened, the below fell on his head. Both the accused went away. Then A2 pushed the witness s father who fell down. Me got up and started questioning A2. A2"s brother A1 picked up an axe and axed his father on his head. A2 tried to beat his father with a stick. When he intervened, the below fell on his head. Both the accused went away. The incident took place at about 7-00 p. m. The witness s mother kastala Venkamma, Kastala Veeriah and nandigama Nagaraju were also present at the time of incident. The deceased fell down and became unconscious. He was removed in an auto to Huzurnagar Hospital. He kept the body in the hospital premises and when to the Police Station. He handed over a complaint Ex. P1 to police. He got it written by an educated person who was available near the Police Station. He also received an injury. He was admitted to the hospital for treatment. Police examined him. His father sustained bleeding injury and he was removed to Osmania General hospital, Hyderabad from Huzurnagar hospital. On the way to Hyderabad his father died. He also identified MO 1 blue colour polyester full shirt and MO 2 white dothi as belonging to the deceased. He also identified the axe MO3 with which the deceased was axed by Al, and the stick mo4 by which A2 beat him on his head. His examination-in-chief was held on 6-10-1998. His cross-examination was deferred by the learned Sessions Judge at request till the examination of other eye-witnesses and eventually the cross-examination was made on 17-11-1998. In the cross-examination he stated that the accused were his nephews being his sister s children. He and the accused belong to the same village. He did not know the reasons as to why the accused were quarrelling with each other. At the time of occurrence it was dark and he was putting on the streetlights. By the time he came to the scene of occurrence, the accused were quarrelling. He went inside his house. He came out 15 minutes later. When he came out, he found his father lying on the ground. 20 people were present when the altercation took place. The accused and the people who gathered were under the influence of drinks. He removed his father who was lying on the ground in an auto and took him to the hospital. His father had received injury on his head. 20 people were present when the altercation took place. The accused and the people who gathered were under the influence of drinks. He removed his father who was lying on the ground in an auto and took him to the hospital. His father had received injury on his head. The doctors at Huzurnagar hospital refused to treat the deceased unless a case was booked, therefore, he went to the Police Station and got a report written by a Muslim. He got the names of the accused persons incorporated in Ex. Pl as they were fighting and quarreling. He suspected them for the injury. When he removed his father in the auto, he also came into contact with the auto and received injury on his head. At that time his father was not in a position to talk. He did not know whether his father was drunk at the time of occurrence. His father used to drink. He did not witness the occurrence and because of suspicion he had given report Ex. Pl to police. As it was dark, he was not able to know as to what was happening. After this cross-examination, the witness was declared Hostile. He was allowed to be cross-examined by the public Prosecutor. He stated that whatever he deposed in the examination-in-chief was at the instance of police and in cross- examination he had spoken the truth. He had brought a lantern to see his father was lying on the ground. The accused were present along with 20 persons there. When the had seen the accused quarrelling, his father was alive and standing. The accused were quarrelling with each other at a distance of 20 yards from his house. He had got Ex. P1 written on his own and the police was not present. The police had not used any force to make him write Ex. Pl. He had identified the accused in the court, but he had not seen using of axe by anybody. He had told the doctor that he had sustained injury by coming into contact with an auto which he had not told the police. He denied having made a statement implicating the accused under Section 161 of Cr. PC. There were electric lights at a distance of 20 yards from the scene of offence. ( 4 ) PW2 s story is almost the same. He denied having made a statement implicating the accused under Section 161 of Cr. PC. There were electric lights at a distance of 20 yards from the scene of offence. ( 4 ) PW2 s story is almost the same. She also stated whatever had been stated by pw1 in examination-in-chief. While A1 and A2 were quarrelling, she intervened, when A2 pushed her. Then Kastala Pedda lachaiah came rushing and questioned the accused as to why they were assaulting the lady. A2 slapped Kastala Pedda Lachaiah. The deceased who was sweeping there came there and intervened. A2 pushed him down and thereafter A1 came rushing and dealt a blow with an axe on the head of the deceased who sustained a bleeding injury and fell down. A2 came rushing with a stick to beat the deceased. When PW1 tried to ward off the attack, he received an injury on his head. The injured were shifted in an auto to Huzurnagar Hospital. PW1 went to the Police Station and presented a report. The deceased Gopaiah died on the way to Hyderabad while he was being removed to Osmania General Hospital, hyderabad. She was present during the inquest. This witness s cross-examination was also deferred for similar reason for which PW1 s cross-examination was deferred. She was examined in chief on 6-10-1998 and then cross-examined on 17-11-1998. In her cross-examination she denied having seen the incident. She was cross-examined by the Public Prosecutor after she was declared hostile and she also stated that it was at the instance of police that she had made the statement when she was examined in chief on the previous occasion. She stated that on the day of examination in chief also she had been brought by the police to the Court and was asked to make a statement to their liking. She denied having made a statement implicating the accused under Section 161 of Cr. PC. ( 5 ) PW3 is also another witness who is the brother of the deceased. He also in his examination-in-chief on 6-10-1998 narrated almost the same story that has been narrated by PWs. 1 and 2. He stated that when A2 pushed a woman, the deceased intervened, took a broomstick and beat a2 with the broomstick. Then A2 pushed him down and A1 came there with an axe and dealt a blow on the head of the deceased. 1 and 2. He stated that when A2 pushed a woman, the deceased intervened, took a broomstick and beat a2 with the broomstick. Then A2 pushed him down and A1 came there with an axe and dealt a blow on the head of the deceased. He sustained bleeding injury and fell down. In the meantime PW1 came there and A2 beat him with a stick on his head. Then the deceased and PW1 were taken to the hospital in an auto. This man s cross-examination was also deferred and he was cross-examined on 17-11-1998. He also resiled from the statement made in examination-in-chief. He denied having been present at the place of occurrence. He stated that on the day of occurrence he was working as a farm servant under basvaiah and while he was returning home, he saw a gathering of 30 to 40 people at the place of occurrence. He was in his house when he saw A1 and A2 quarrelling with each other. All the people had taken liquor and were under the influence of liquor. He went to the place of occurrence and somebody slapped him. Then his daughter came there and took him inside the house. He came out again on hearing that somebody had axed the deceased on his head. Police examined him. He was declared hostile and cross-examined by the public Prosecutor. ( 6 ) PW4 is the wife of the deceased and mother of PW1. She knew both the accused. She did not know about any altercation between A1 and A2. She was not aware whether her husband was sweeping outside the house. She was not well and was running fever. Somebody came and informed her that her husband way lying there with an injury caused by an axe. Then he was removed in an auto. She boarded the auto and went to the hospital. Thereafter they went to the Police Station and gave a complaint showing suspicion on the accused. The deceased was admitted to the hospital from there he was referred to Osmania general Hospital, Hyderabad. On the way he died. The dead body was brought back and kept in Huzurnagar Hospital. Her son sustained injury due to fall while he was making an attempt to lift his father who was lying on the ground. This witness was declared hostile and cross-examined. On the way he died. The dead body was brought back and kept in Huzurnagar Hospital. Her son sustained injury due to fall while he was making an attempt to lift his father who was lying on the ground. This witness was declared hostile and cross-examined. In cross-examination she stated that PW1 gave a report to the police on the basis of suspicion against the accused. ( 7 ) PW5 is the person who engaged a jeep to take the deceased to Osmania general Hospital, Hyderabad. PW6 stated that while he was going, Sub-Inspector of police called him and asked him to sign a panchanama. Ex. P6 contains his signatures, but the witness stated that he did not see the dead body, he only signed the papers on instructions from the police. PW7 also did not support the prosecution story and was declared hostile. He was a witness to the scene of offence panchanama. PW8 also turned hostile. He was a witness to the alleged disclosure statement made by A1 and A2 on the basis of which the axe MO3 and stick MO4 were recovered. ( 8 ) PW9 is the doctor who examined PW1 and found a laceration 2" x 1/2" x 1/4" over the mid line frontal region. According to him, this injury was simple in nature and could have been caused by a blunt weapon. He identified Ex. P7 as the injury certificate. He also conducted post-mortem examination over the dead body of the deceased on 17-1-1996 at 11-45 a. m. He found only one injury on the dead body i. e. , laceration 4" x 1/2" x 1/2" over the posterior parieto occipital region. On internal examination, he found fractures of frontal bone, parietal bone, left temporal and right temporal. There is extra dural haemorrhage present. The cause of death, according to the doctor, was cardio respiratory failure due to head injury. The injury could have been caused by an axe like MO3 and stick like MO4. The laceration found could have been caused with a blunt object and could not be caused with a sharp edged weapon. MO3 axe could not have caused the injury. ( 9 ) THERE were four eye-witnesses who turned hostile. Although in the examination-in-chief they supported the prosecution story, but in the cross-examination which was held after sometime they resiled from their original statements. MO3 axe could not have caused the injury. ( 9 ) THERE were four eye-witnesses who turned hostile. Although in the examination-in-chief they supported the prosecution story, but in the cross-examination which was held after sometime they resiled from their original statements. The learned Sessions judge ha convicted A1 on the ground that the eye-witnesses had supported the prosecution story in examination-in-chief and their statements were corroborated by the medical evidence. This view is supported by the learned Public Prosecutor who submits that it is a clear case in which the witnesses resiled after supporting the prosecution story when they were examined in chief and since the cross-examination was deferred for a long period of time, it can be inferred that they were won over by the accused which resulted in their resiling from the earlier statements She places reliance on a decision of the Supreme court reported in Koli Lakshmanbhai chanabhai v. Stale of Gujarat, (1999) 8 scc 624 . In para 5 the Supreme Court said, "it is well settled law that evidence of hostile witness also can be relied upon to the extent to which it supports the prosecution version. Evidence of such witness cannot be treated as washed off the record. It remains admissible in the trial and there is no legal bar to base conviction upon his testimony if corroborated by others reliable evidence". There is no quarrel with this principle of law. But here is a case in which there is no evidence other than the evidence of four eye-witnesses who have resiled from their original statements. The learned trial Court fell in error by stating that the medical evidence has corroborated to the version given by the eye-witnesses in their examination-in-chief. It was the case of the witnesses in their examination-in- chief that A1 had given a blow by an axe on the head of the deceased, whereas the doctor was of emphatic view that the injury sustained by the deceased would have not been caused by an axe. He found only one injury which was lacerated injury on the head of the deceased and according to the doctor, it could have been caused by MO4 stick and the prosecution case, which was supported by the eye-witnesses in examination-in-chief, was that stick was used by A2. He found only one injury which was lacerated injury on the head of the deceased and according to the doctor, it could have been caused by MO4 stick and the prosecution case, which was supported by the eye-witnesses in examination-in-chief, was that stick was used by A2. A2 has already been acquitted by the learned Sessions Judge and the allegation against him was that he beat PW1 with the stick. There was not even an allegation against A2 that he beat the deceased. A reference is made to the judgment of the supreme Court reported in Hallu v. State of m. P, AIR 1974 SC 1936 , there was eye-witness account that the deceased had been attacked with lathis, spears and axes. The medical report was that the injuries were bruises, hematoma and lacerated wounds which could not have been caused by a spear or an axe. The High Court, however, refused to attach any importance to this aspect of the matter by saying that, the witnesses had not stated that, "the miscreants dealt axe blows from the sharp side or used the spear as a piercing weapon". But the supreme Court held, "we should have thought that normally when the 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. " Another judgment of the Supreme Court reported in Bhola singh v. State of Punjab, AIR 1999 SC 767 , is pressed into service. In this case, allegation was that injuries had been caused with a sharp edged weapon, but the injuries found by the doctor were lacerated injuries. The supreme Court went slightly further than what it had stated in Hallu v. State of M. P. (supra ). It stated that if the two eye-witnesses had really witnessed the occurrence, they would have certainly described the weapons used in causing injuries to the deceased leading to his death. It is highly improbable and unlikely that when the accused armed with sharp weapons they had used only the blunt edged side and not the sharp edged side of the said weapons. It is highly improbable and unlikely that when the accused armed with sharp weapons they had used only the blunt edged side and not the sharp edged side of the said weapons. These two eye- witnesses had set out this version only to fit in what had been found in the post-mortem report. Therefore, Supreme Court held that it is highly unlikely that the two eye-witnesses could have seen the incident and it gives rise to serious doubt as to their presence at the time of incident. ( 10 ) SINCE the medical evidence also does not corroborate no the version given by the eye-witnesses in their examination-in-chief, we feel that benefit of doubt should have gone to the appellant. Therefore, the appeal is allowed, conviction and sentence is set aside and the appellant is acquitted. He shall be released forthwith from custody, if not needed in any other cases.