JUDGMENT A.H. Saikia, J. 1. Heard Mr. A. K. Goswami, learned counsel for the appellants and Mr. F. H. Laskar, learned PP, Assam. 2. That the conviction of the accused/appellants under Section 304, Part-II, IPC and the subsequent sentence of 3 years rigorous imprisonment and to pay a fine of Rs. 1000 in default 2 months simple imprisonment imposed by the judgment and order dated 9.7.2001 passed by the learned Sessions Judge, Karimganj in Sessions Case No. 74/96 is the subject-matter of challenge in this Criminal Appeal. 3. The prosecution case, briefly stated, is that on the evening of 1.9.1995 when the 5 accused persons namely, Jamal Uddin, Kamal Uddin, the appellant No. 1, Jabbar Mian, Abdul Gafur, the appellant No. 2 and Kabir Uddin were playing carom in the shop house of Abdul Gafur, the appellant No. 2, at Telakona, the informant, P.W. 1, Makai Mia who, on hearing the Ajan, was on his way to offer Mugrib Namaj in the Masjid situated in the same bazaar seeing them playing carom, requested the accused persons named above not to play carom at that time and left for Namaj in the Masjid. On his way back after offering prayer in the Mosque, the accused persons mentioned above confronted with him charging that how it bothered him while they were playing carom. At this, an altercation started between PW1 and the 5 accused persons culminating in a mutual marpit amongst them. As a result, PW1 was assaulted. Seeing this, Sarab Uddin, (since deceased), Ajijur Rahman and Abdul Malik being the cousins and son of the informant respectively came to his help. All 5 persons thereafter assaulted them with the help of wooden lathi causing injury to them. Sustaining severe head injury, Sarab Uddin fell down on the ground unconscious and was taken alongwith others to Kabibari Primary Health Centre where Sarab Uddin succumbed to his injuries 2 days after the injury. P.W. 1 lodged a written Ejahar with the Kalibari Police Out Post on 3.9.1995 on the basis of which GR Case No. 1028/95 was registered. Investigation was initiated and on completion of the investigation, the police submitted charge sheet under Sections 147/148/149/323/302 IPC against the accused persons. The case was committed to the Sessions Court whereupon Sessions Case No. 74/96 was registered. 4. Investigation was initiated and on completion of the investigation, the police submitted charge sheet under Sections 147/148/149/323/302 IPC against the accused persons. The case was committed to the Sessions Court whereupon Sessions Case No. 74/96 was registered. 4. During the trial, the prosecution examined as many as 13 witnesses including P.W. 1, Makai Mia as eye witness, P. W. 5, Dr. Shibananda Roy who examined the injured persons namely, Makai Mia, P.W. 1, Ajijur Rahman, P.W. 4, the Investigation Officer, P.W. 10 and Dr. Ashit Mohan Shome, PW 12, who held the post mortem on the dead body of the deceased Sarab Uddin. 5. The learned Session Judge on appreciation of the evidence on record and after hearing learned counsel for the parties by his aforesaid judgment, acquitted Jamal Uddin, Jabbar Mian and Kabir Ahmed and convicted the appellants under Section 304 Part II and sentenced them each as noticed hereinabove. 6. I have carefully perused the materials available on record especially the depositions of P.W. 1, P.W. 2, P.W. 3, P.W. 4, P.W. 6, P.W. 7, P.W. 8, P.W. 10 and P.W. 12. From the close scrutiny of those evidence, it appears that it was a mutual marpit between the two groups on the ground of playing carom at the time of evening prayer (Magrib Namaj), P.W. 1, in his deposition, stated that while he was on his way to offer Magrib Namaj on hearing the Ajan, he saw the 5 accused persons playing carom for which he requested not to play carom at the time of prayer. While he returned after offering prayer in the Mosque, he was confronted by the accused persons and there was an altercation between himself and those accused persons. At this stage, his cousin, Sarab Uddin came to the place from his nearby shop to intervene. Then the appellants Kamal Uddin and Abdul Gafur hit Sarab Uddin with a wooden piece. As a result, Sarab Uddin fell down. When he tried to lift Sarab up, at that time he was also hit by some of the accused with wooden piece on his right arm. He could not recognize those accused persons who assaulted him. In his cross, this witness indicated that wooden pieces used for hitting Sarab Uddin were two different wooden pieces of 3" x 2" in size. He could not recognize those accused persons who assaulted him. In his cross, this witness indicated that wooden pieces used for hitting Sarab Uddin were two different wooden pieces of 3" x 2" in size. In chief, he clearly deposed that Kamal Uddin and Abdul Gafur struck Sarab Uddin with a wooden piece. Besides that, he also testified that he did state before the police that Abdul Gafur assaulted Sarab Uddin. But surprisingly his statement was controverted by P.W. 10, Investigating Officer who deposed in his cross that P.W. 1 did not state before him that the accused appellant Abdul Gafur assaulted Sarab Uddin. Though this witness happened to be the only eye witness, on proper appreciation of his evidence as noticed above, this deposition lacked trustworthiness and consistency and as such testimony of this witness in my opinion, cannot be relied upon. P.W. 2, in his evidence, went one step further saying that though he was not present at the time of occurrence, he saw both appellant Nos. 1 and 2 alongwith Kabir, were having 3 pieces of wood in their hands and the same is enough to create doubt in the prosecution story. 7. P.W. 3, Saib Ali, not being eyewitness, also did not depose substantially except Contradictory statement. He found Sarab Uddin lying in the place of occurrence. Incidentally, this witness stated that after hearing some halla in front of shop of accused appellant, Abdul Gafur, when he came to the place of occurrence where he saw all of the five accused persons and also deceased, Sarab Uddin lying on the ground in the injured condition and was bleeding from his head. Then he went further to say that before he proceeded to the place of occurrence from his shop, he saw that accused Jamal Uddin, Kamal Uddin, Abdul Gafur and Jabbar assaulted deceased hitting with wooden pieces. His deposition is totally contrary to the testimony of eyewitness, P.W. 1 who stated that it was only the appellants who assaulted Sarab Uddin with a wooden piece. That being so, in my opinion, no reliance can be placed on the evidence of this witness. 8. His deposition is totally contrary to the testimony of eyewitness, P.W. 1 who stated that it was only the appellants who assaulted Sarab Uddin with a wooden piece. That being so, in my opinion, no reliance can be placed on the evidence of this witness. 8. P.W. 4, Ajijur Rahman who also alleged to be injured, deposed that after a magrib namaj he heard some halla from the shop of Abdul Gafur and then he rushed to the place of occurrence and found that five accused persons were fleeing and they were having some wooden pieces in their hands. Thereafter, he saw Sarab Uddin was lying on the ground with bleeding on his head. In cross, he stated that on hearing halla his attention was drawn towards hall where he saw mutual marpit but he did not mention anything about the appellants being involved in the said marpit. 9. Now turning to the testimony of P.Ws. 6, 7, and 8, it is found that all these three witnesses stated that there was mutual marpit between the two groups taken place after the Magrib prayer. After hearing halla when the PW 6 went to the place of occurrence, he found deceased Sarab Uddin, P.W. 2 Abdul Malik, P.W. 4 Ajijur Raham and the appellant Kamal Uddin lying at the place of occurrence in injured condition. He categorically stated in cross that he found bleeding injury on the head of the appellant Kamaluddin. On the other hand, P.W. 7 was very specific in his deposition to the effect that there was a 'marpit' between two groups where he found injuries on the persons of the deceased, Sarab Uddin, P.W. 1, Makai Mian, the appellant, Kamal Uddin, Jamal Uddin (since acquitted). He found deceased, Sarab Uddin and Kamal Uddin lying on the ground with injuries. P.W. 8 supported the version of P.Ws. 6 and 7 stating that he found Jabbar and Gafur quarrelling with Makai Mia in front of their shop and thereafter fighting started between themselves as a result of which deceased, Sarab Uddin and Kamal Uddin sustained severe injuries and fell down on the ground. In cross, this witness revealed that when the occurrence took place, darkness was prevailing and attack was first made by P.W. 1 Makhai Mia and his associates who were armed with lethal weapons. In cross, this witness revealed that when the occurrence took place, darkness was prevailing and attack was first made by P.W. 1 Makhai Mia and his associates who were armed with lethal weapons. The appellant Kamal Uddin sustained injuries on his head and arm for which he became unconscious. 10. P.W. 12, the Doctor, after holding the post-mortem on the dead body of Sarab Uddin found as follows : Injury "1. One lacerated wound over left parietal region of the scalp, triangular in shape 7 cm x 1 cm x bone depth. The injury was fresh and caused by blunt object. 2. Abrasion over both elbow 1 cm x 1 cm. The injury was fresh and caused by blunt object. All other organs were healthy except membrane and brain which were ruptured." In his opinion, the death was due to shock and hemorrhage resulting from injuries sustained by blunt object. From the medical evidence, it appears that there was one lacerated injury on the scalp. 11. Now from the close scrutiny of the evidence of P.W. 1, P.W. 2 and P.W. 3, it is seen that the 5 accused persons including the appellants assaulted the Sarab Uddin with wooden pieces in their hand. If that story has to be believed and accepted, there would have been more other injuries on the head of the deceased, Sarab Uddin. That apart, the witnesses so examined by the prosecution failed to clearly state the actual participation of the appellants alongwith other 3 accused. They had also not stated who specifically assaulted Sarab Uddin on his head. Since it is admitted case of mutual marpit where both the parties participated and suffered injuries, it can be safely held that said appellants are entitled to benefit of doubt. 12. The Supreme Court in the case of State of Haryana v. Chandvir and Ors. reported in while dealing with the case of murder with unlawful assembly, ruled that in a case of free fight between the parties when no proper explanation is given by the prosecution for the injuries caused by the parties including the accused persons and the evidence of prosecution witnesses were also not reliable, the accused persons are entitled to acquittal and accordingly, the order of acquittal recorded by the High Court was confirmed by the Apex Court. 13. 13. Having regard to the above judicial authority and on proper and careful perusal of the evidence as stated above, this court is of the considered view that the case in hand is squarely covered by the ratio of Chandvir's case cited above. In the instant case also the evidences of prosecution's witnesses appear to be non-reliable and as such on the basis of such testimony, the appellants' conviction cannot be sustained. Besides the prosecution was silent as regards the distinctive part taken by each accused persons including the appellants in their individual capacity in causing the single injury on the scalp of the deceased, especially when there was a 'mutual marpit' as emerged from the testimony of the prosecution witnesses. Consequently, the appellants, being entitled to benefit of doubt, are hereby acquitted. 14. In the result, the appeal succeeds and stands allowed. The hail bonds of the appellants shall stand discharged. Send down the records immediately. No costs. Appeal succeeds