G. C. DE, J. ( 1 ) THIS appeal is directed against the order of conviction dated 27. 8. 99 and sentence imposed on 30. 8. 99 by the learned Additional Sessions judge, 5th Court, Alipore, South 24-Parganas in S. T. Case No. 4 (8) of 97 [s. C. Case No. 6 (5) of 97] arising out of G. R. Case No, 929 of 1990. By the said judgment the learned Sessions Judge found eleven accused persons, namely, 1) Adbul Hai Sk. 2) Sk. Munnaf Ali @ Munnaf Sk, 3) Sahalam Sk, 4) Sk. Bablu @ Bablu Sk, 5) Sk. Habibur Rahaman @ Habibur Rahaman Sk. 6) Mustakin sk, 7) Ibrahim Sk, 8) Salam Sk, 9) Sonalal Sk, 10) Abdul Rasid Sk, 11) Sarjed sk @ Sajet Sk. guilty under section 148/149/302 of the Indian Penal Code, convicted them thereunder and sentenced each of them to suffer imprisonment and to pay a fine of Rs. 1000/- i. d. to suffer S. I. for one month under section 302 read with section 34 of IPC. They were also sentenced to suffer R. I. for three years and to pay a fine of Rs. 500/-, in default, to suffer further S. I. for six months under section 148 of IPC. It was directed that all the sentences were to run concurrently. By the said judgment, the learned Sessions Judge found the remaining six accused persons, namely, Safiuddin Sk, Asraf Ali Sk, Musaraf molla, Alauddin Sk, Ali Hossain Sk and Illias Sk not guilty to the charges under section 148/149/302 of IPC and acquitted them. ( 2 ) PROSECUTION case in brief is that on receipt of a written complaint from one Sabeda Bewa Falta P. S. Case No. 112 dated 24. 8. 90 was started after filling formal FIR at 18. 20 hours on that date. In the written complaint it was alleged that at about 11. 30 a. m. of 24. 8. 90 Ramij Seikh for the purpose of joining jummanawaz went to village pond for a bath, when the accused persons asked him to play Kabadi with them in the nearby field. 20 hours on that date. In the written complaint it was alleged that at about 11. 30 a. m. of 24. 8. 90 Ramij Seikh for the purpose of joining jummanawaz went to village pond for a bath, when the accused persons asked him to play Kabadi with them in the nearby field. Ramij Seikh, however, did not respond to their call and went to take his bath when the accused persons forcibly lifted him from the pond and tied him by rope and thereafter they started assaulting him and brought him in the field in front of Sujapur Primary school, tied him with Coconut tree. At that time it was noticed that one Salekh molla, son-in-law of Yeasin, was tied up with another Coconut tree in the same field. All the accused persons started assaulting both of them by means of stick, rods etc. The complainant Sabeda Bewa requested the assailant to leave her son Ramiz Seikh but they did not pay any heed to such request and they also prevented her to give water to her son. So Sabeda Bewa started for the P. S. to give information but she was prevented by the miscreants and threatened that if the information was given to the P. S. they would kill her. The miscreants also went on assaulting both of the victims and as a result of which both of them became unconscious and subsequently died. On fear of assault the information was given to the P. S. at a belated stage. ( 3 ) POLICE started investigating the case, visited the place of occurrence, recovered the dead bodies after untying the rope, made inquest on the dead body, sent the dead bodies for post-mortem examination, seized articles at the locale, examined witnesses, arrested miscreants and on receipt of post-mortem examination report chargesheet was submitted on 29. 10. 92 against seventeen accused persons. The case was committed to the Court of Sessions on 19. 3. 97. Charge under section 148/149/302 IPC was framed against all the seventeen accused persons on 9. 7. 97. The accused persons, however, pleaded not guilty to the charge for which prosecution examined thirteen witnesses. However, no defence witness was examined and the defence case, as can be ascertained from the trend of cross-examination and the answers given while examined under section 313 of the Code of Criminal Procedure, is innocence. 7. 97. The accused persons, however, pleaded not guilty to the charge for which prosecution examined thirteen witnesses. However, no defence witness was examined and the defence case, as can be ascertained from the trend of cross-examination and the answers given while examined under section 313 of the Code of Criminal Procedure, is innocence. ( 4 ) THE learned Sessions Judge practically relying on the ocular version of the eye-witnesses P. W. 1 Sabeda Bewa, P. W. 5 Sk. Serajul, P. W. 6 Bikash Ch. Kotal and P. W. 7 Yeasin Sk came to the conclusion that charge against eleven accused persons were proved beyond reasonable doubt and as such he found them guilty, convicted and sentenced them in the manner indicated hereinabove. However, the learned Sessions Judge contended that none of the witnesses did not name the remaining six accused persons for which they were found not guilty and acquitted. ( 5 ) MR. Dastoor, Id. Counsel appearing on behalf of the convicts/appellants argued at length pointing out that the Trial Court misread the ocular version of the allegedly four eye-witnesses and could not justify their testimony on the face of the medical opinion. It was further clarified from the post-mortem examination report that though the eye-witnesses claimed that Salekh Ali was killed first before killing of Ramiz Sk, the autopsy surgeon (PW 10) Dr. S. N. Sen detected the presence of rigor mortis in the dead body of Salekh Ali Molla. However, the autopsy surgeon did not detect such rigor mortis on the dead body of Ramiz Sk though the eye-witnesses claimed Ramiz Sk was killed after the killing of Salekh Ali. It was also pointed out that though undigested rice was detected in the stomach of Ramiz Sk, P. W. 1 failed to justify taking of rice by the victim Ramiz Sk before 11. 30 a. m. of 24. 8. 90. ( 6 ) MR. Dastoor also analysed the evidence of other witnesses to show that the alleged eye-witnesses practically deposed on a cooked up story and that none of the eye-witnesses had any occasion to see the incident of assault on the victim at about 11. 30 a. m. on 24. 8. 90. So Mr. Dastoor concluded that the prosecution hopelessly failed to prove the direct assault of the victims at the hands of the convicted persons at that hour of 24. 8. 90. Mr. 30 a. m. on 24. 8. 90. So Mr. Dastoor concluded that the prosecution hopelessly failed to prove the direct assault of the victims at the hands of the convicted persons at that hour of 24. 8. 90. Mr. Dastoor also argued that the circumstances coming out in course of evidence are sufficient to indicate that the witnesses had no occasion to see the actual assault and the dead bodies were detected long after their assault. ( 7 ) MR. Dastoor also placed reliance on the Apex Court judgment in Chanan singh vs. State of Haryana, reported in AIR 1971 SC 1554 , in support of the contention that vital discrepancies between the medical evidence and oral evidence indicate inherent improbabilities and infirmities. Reliance was also placed in Ram Narain vs. State of Punjab, reported in AIR 1975 SC 1727 to show that when prosecution evidence is inconsistent with medical evidence the case is to be approached with care and caution. It is also pointed out that where evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence it is to be construed to be most fundamental defect in the prosecution case and unless reasonably explained it is sufficient to discredit the entire case. ( 8 ) MR. Dastoor also placed reliance in three other judgments of the Apex court in Subhash and Anr. vs. State of U. P. , reported in AIR 1976 SC 1924 , purshottam vs. State of M. P. , reported in AIR 1980 S. C. 1873 and in Babu and ors. vs. State of Uttar Pradesh, reported in AIR 1983 SC 308 , in support of the contention that when there is contradictions between medical evidence and the eye-witnesses, the Court may proceed on the basis of the medical evidence if the evidence of the eye-witnesses is found to be unreliable and inconsistent with the medical evidence. So Mr. Dastoor concluded that the prosecution though established the place of detection of the dead bodies, they failed to prove the time and manner of assault. Accordingly, Mr. Dastoor prayed for acquittal of all the convicts after finding that the charge against them was not proved. ( 9 ) MR. Ghoshal, Id. Counsel, on the other hand, placed reliance on a decision of the Apex Court reported in 1977 Cr. LJ 642 (SC) in Narpal Singh and Ors. Accordingly, Mr. Dastoor prayed for acquittal of all the convicts after finding that the charge against them was not proved. ( 9 ) MR. Ghoshal, Id. Counsel, on the other hand, placed reliance on a decision of the Apex Court reported in 1977 Cr. LJ 642 (SC) in Narpal Singh and Ors. vs. State of Haryana, in support of the contention that when there is no inconsistency between ocular and medical evidence it cannot render the prosecution case unbelievable. Reliance was also placed in Dasan and Ors. vs. State of Kerala, 1987 Cr. LJ 180, to show that if evidence of eye-witnesses is clear, cogent and consistent, it can be accepted only if it does not demolish the medical evidence. It was also viewed in the said judgment that if the apparent difference between ocular evidence and medical evidence is attributable to any acceptable reason which is capable of compromising the two apparently different versions, otherwise acceptable ocular evidence should not normally be rejected. ( 10 ) MR. Ghoshal also placed reliance in State of U. P. vs. Krishna Gopal and anr. , reported in AIR 1988 SC 2154 , to show that where eye-witnesses' account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. It is also viewed that eye-witnesses' account would require careful independent assessment and evaluation for their credibility. So Mr. Ghoshal pleaded that when there is conflict between conclusive opinion of medical expert and oral evidence of the eye-witnesses, the oral evidence is not to be rejected without careful independent assessment and evaluation for their credibility. ( 11 ) IT is already discussed above that the alleged eye-witnesses are P. W. I, p. W. 5, P. W. 6 and P. W. 7. P. W. 1, being the mother of the victim Ramiz Seikh, claimed that she was present at the place of occurrence from 11 a. m. till arrival of the police. She also claimed that her son Sk. Sirazul (PW 5) went to Calcutta on the previous day and did not return. She also stated that she found Salekh ali 'dead' and thereafter her son Ramiz Sk was assaulted to death. She further clarified that in the morning of 24. 8. 90 the members of his family took bread and tea as usual but she did not indicate that Ramiz Sk. She also stated that she found Salekh ali 'dead' and thereafter her son Ramiz Sk was assaulted to death. She further clarified that in the morning of 24. 8. 90 the members of his family took bread and tea as usual but she did not indicate that Ramiz Sk. also took bread and tea in that morning. On the other hand, from her cross-examination it appears that they finished their dinner on the previous night at 10 p. m. It is further stated that rice is served in the dinner. ( 12 ) IT is already indicated above that autopsy surgeon found remnants of rice in the stomach of Ramiz Sk. This important fact clarifies that Ramiz Sk died within four hours of taking rice which can only be possible at 10 p. m. of 23. 8. 90. So the time of death of Ramiz Sk can be fixed between 12 midnight and 2 a. m. of 24. 8. 90. P. W. 5 stated that hearing the news of assault of his brother Ramiz Sk he came to the spot after depositing the rickshaw van to its owner. P. W. 5 also claimed that in the morning he was carrying passenger in rickshaw van. P. W. 5, however, could not say the name of the owner of the rickshaw van. There is no corroboration of the evidence of P. W. 5 on the point of carrying passenger in a rickshaw van by P. W. 5. On the other hand, P. W. I claims that P. W. 5 was a green grocer and he had left for Calcutta on the previous date. So the evidence of P. W. 5 cannot be construed to be reliable on this point. P. W. 5 claimed that he came to the spot, found Salekh dead and his brother ramiz Sk was being assaulted. P. W. 5 tried to interfere when he was threatened and accordingly in fear P. W. 5 left the spot and did not disclose the incident to anybody else. This conduct of P. W. 5 is also unreliable. Moreover, if the P. W. 5 had actually arrived at the spot, there cannot be any reason as to why P. W. I did not see him there. So the presence of P. W. 5 at the spot cannot be believed. This conduct of P. W. 5 is also unreliable. Moreover, if the P. W. 5 had actually arrived at the spot, there cannot be any reason as to why P. W. I did not see him there. So the presence of P. W. 5 at the spot cannot be believed. ( 13 ) P. W. 6 Bikash Chandra Kotal claimed that he had a talk with Ramiz Sk in course of the assault. P. W. 1 does not corroborate this important fact. Moreover, P. W. 6 after leaving the spot did not convey the incident of assault to the police or to anybody else though it appears that he was a leader in the locality and contested the local election. P. W. 6 also claimed that he was not examined by the I. O. and the statement made by him before the Court was disclosed for the first time. So taking into consideration all these contradictions and improbabilities we have reason to disbelieve the evidence of P. W. 6. ( 14 ) P. W. 7 Yeasin Sk claims himself to be the father-in-law of the victim salekh. His evidence is that the assailants gave a blow of Katari on the neck of salekh that caused bleeding injuries. But the autopsy surgeon (P. W. 10) did not notice any such injury caused by Katari. P. W. 7 also did not take any step to intimate the police as regards the alleged incident. So his conduct is also not trustworthy and his ocular version is directly contradicted by medical evidence. ( 15 ) IN this connection it is to be noted from the evidence of P. W. 4, a local resident that police took P. W. 1 and P. W. 4 to the place of occurrence from their respective residences and after arrival at the spot the dead bodies were lifted. P. W. 2, a local tea stall owner did not see the incident of assault at 11. 30 a. m. or thereafter. But he found the dead bodies of both victims lying behind his tea stall. P. W. 3 another local man was declared hostile by prosecution and from his evidence also it can be ascertained that both the victims were murdered. 30 a. m. or thereafter. But he found the dead bodies of both victims lying behind his tea stall. P. W. 3 another local man was declared hostile by prosecution and from his evidence also it can be ascertained that both the victims were murdered. P. W. 8 is another local man of Sujapur and his evidence is that both the victims were antisocial and one thousand people assembled at the spot and there was a mass assault on the victim. P. W. 8, however, did not name any of the accused persons as assailant. ( 16 ) AFTER a careful scrutiny of the evidence adduced by local witnesses it can simply be concluded that everybody saw the dead bodies of the victims but not the assault. So the ocular version of the alleged eye-witness is not only unreliable but is also opposed to the definite conclusion given by the autopsy surgeon. It is also to be noted from the report of the autopsy surgeon that Salekh Ali died after Ramiz Sk. So the claim of the alleged eye-witnesses that Ramiz was killed after Salekh is opposed to the medical evidence. Scanning the evidence on record and the circumstances, the only conclusion is possible that Ramiz Sk and Salekh Ali Molla were assaulted and as a result of which both of them died in the night between 23. 8. 90 and 24. 8. 90 and not at 11 or 11. 30 a. m. of 24. 8. 90. None of the witnesses had any occasion to see the actual assault of both the victims. Evidence clarifies that dead bodies of both the victims were detected in the morning of 24. 8. 90. In this connection it is to be noted that the I. O. did not examine any witness in the adjacent school which was functioning during the day hours of 24. 8. 90. If the actual assault was at 11 or 11. 30 a. m. it cannot be believed that none of the students or teachers of the adjacent school had no occasion to see the incident. On the other hand, the local persons like P. W. 2, P. W. 3, P. W. 4, P. W. 8, P. W. 9 claimed that they did not see the actual assault. 30 a. m. it cannot be believed that none of the students or teachers of the adjacent school had no occasion to see the incident. On the other hand, the local persons like P. W. 2, P. W. 3, P. W. 4, P. W. 8, P. W. 9 claimed that they did not see the actual assault. ( 17 ) SO after a careful consideration of the evidence adduced in this case, we are of the view that the Trial Court misdirected itself in assessing the evidence and came to an erroneous finding that the convicted persons had actually assaulted both the victims to death. In fact, time and manner of assault have not been proved beyond reasonable doubt in this case. The prosecution was able to prove the place of assault only, but completely failed to establish the time and manner of assault. Moreover, the evidence of the alleged eye-witnesses are not trustworthy as they contradicted each other and tried to project a cooked up story. It is also to be noted that the I. O. was aware of such cooked up story, but no attempt was made to ascertain the time and manner of assault. Basic ingredient in a criminal case is the linking of time, place and manner. But in this case prosecution has only been able to. prove the place of occurrence, but miserably failed to prove the time and manner of assault. Accordingly, the only irresistible conclusion that can be drawn is that prosecution has not been able to prove the charge levelled against the convicts/appellants. ( 18 ) IN view of the above discussion we come to the conclusion that conviction and sentence passed by the Trial Court cannot be sustained and those are liable to be set aside. All the eleven convicted persons are found not guilty to the charges under section 302/149/148 of the IPC and all of them are acquitted. ( 19 ) LET the convicts in custody be released forthwith, and the convicts on bail be released and discharged from their respective bail bond. The appeal is accordingly allowed. ( 20 ) LET an advance copy of this judgement be sent to the Superintendent, alipore Central Jail, Calcutta forthwith for necessary compliance. ( 21 ) LET a copy of this judgement be also sent to the Trial Court for information. Appeal allowed.