JUDGMENT Lakshman Uraon, J. 1. All the appellants have challenged the judgment and order of conviction and sentence dated 19th July, 2001 and 20th July, 2001 respectively, passed by the learned 2nd Additional Judicial Commissioner. Khunti, in Sessions Trial No. 79 of 2000, arising out of Arki P.S. Case No. 10 of 1999, whereby and whereunder, all the appellants have been convicted under Section 302/34 of the India Penal Code and sentenced to undergo imprisonment for life and to pay a fine of Rs. 1,000/- each. Pending disposal of this appeal, appellant No. 1 Lala Munda, having died in the month of July, 2003, while in judicial custody at Birsa Munda Central Jail, Ranchi, for which a supplementary affidavit has been filed on 5.4.2004, this appeal stood abetted against him. 2. The facts of the case, in short campus, is that on 20.3.1999 informant Abdullah (PW 1) along with his brother Md. Nasir, since dead, and Md. Kalim (PW 3) was returning home after attending the meeting at mosque and reached near the house of Amrit Puran at about 5.30 p.m.; deceased Md. Nasir was 15 to 20 steps ahead; Bhusan Singh Munda, Mangal Singh Munda, Shashi Munda, Lala Munda (since dead), Churu Pahan and Gulab Munda, who had concealed themselves in the house of Amrit Puran, came on the pitch road. Bhushan Singh Munda fired twice causing injury to Md. Nasir, who fell down on the pitch road. The other accused dragged him and took him under a nearby Gamhar tree and all of them cut him with farsa. The informant and Md. Kalim (PWs 1 and 3) were also chased, but they fled away and went to Village-Sindri. They informant Md. Kayum (PW 5), Md. Hasim Ansari (PW 4), Mainul (PW 6) and others about the alleged occurrence. When they returned back to the place of occurrence, they found Md. Nasir dead, having sustained bleeding injuries. They saw fire arm injuries on the left arm and left head of the deceased. The alleged occurrence took place only due to the land disputes in between Bhushan Singh Munda and the informant for which a case was pending in the Court of Circle Officer, Arki. 3. Nasir dead, having sustained bleeding injuries. They saw fire arm injuries on the left arm and left head of the deceased. The alleged occurrence took place only due to the land disputes in between Bhushan Singh Munda and the informant for which a case was pending in the Court of Circle Officer, Arki. 3. In course of trial, prosecution examined seven witnesses in order to bring home the charges, framed against the appellants under Sections 302 and 302/34 of the Indian Penal Code and under Section 27 of the Arms Act. PW 1 Abdullah (inform ant) and PW 3 Md. Kalim are the eye-witnesses, who were returning to their village Mahuadih after attending the meeting at the mosque. PW 2 Dr. Vijay Kumar Prasad conducted the autopsy on the dead body of Md. Nasir. PW 4 Md. Hussain Ansari is a hearsay witness, who was informed about the alleged occurrence by one Md. Salim (not examined). He is a witness of the inquest report on which he signed (Ext. 3). PW 5 Md. Kayum is also a hearsay witness, who was informed by Salim and the informant Abdullah (PW 1). He is also a witness of the inquest report on which he signed Ext. 3/1. PW 6 Moinum Ansari, who is also a hearsay witness, was informed about the alleged occurrence by Abdullah and Salim. The I.O. in this case has not been examined. Formal witness PW 7 Saligram Choubey has proved the formal First Information Report (Ext. 4), fardbeyan (Ext. 5) in the pen and signature of Sri S.N. Das, Officer Incharge, Arki Police Station, whereas the inquest report (Ext. 6) was prepared in the pen of literate constable Kesho Prasad. 4. The learned 2nd Additional Judicial Commissioner, Khunti, relied the evidence of PW 1 and PW 3 and found that although there is contradiction in the ocular evidence and the medical evidence regarding the injuries, sustained by the deceased, as the doctor (PW 2) did not find any lire arm injury on the dead body, convicted and sentenced these appellants, as stated above, having found that other injuries were caused by farsa. 5. 5. Challenging the judgment and order of conviction and sentence, passed by the learned Court below, learned counsel for the appellants has submitted that the genesis of the alleged occurrence is regarding mortgage of the property, which was in dispute, pending in the office of Circle Officer, Arki. The said genesis could not be proved by the prosecution. The learned Court below has not properly assessed the ocular evidence and the medical evidence. The eye- witnesses PW 1 and PW 3 have deposed that the appellant Bhushari Singh Munda fired twice, causing injuries on the left arm and left temporal region of Md. Nasir on the pitch road, who fell down there. The doctor (PW 2) did not find any fire arm injury on the dead body of Md. Nasir. The learned Court below has relied a case, reported in 1984 Cr LJ 921, Punjab Singh v. State of Haryana, which is not applicable in the facts of this case. It was submitted that the learned Court below relying the said reported case, found that in the present case also ocular evidence will prevail over the medical evidence. The learned Court below has not appreciated the facts of the present case. The alleged occurrence took place on the pitch road near the house of Amrit Puran on Khunti- Tamar Road. There are other houses but none of the nearby persons has been examined by the prosecution. Due to non-examination of the I.O., prejudice was caused to the appellants, because the place of occurrence could not be established. The dead body was found under the Gamhar tree on the flank of the pitch road. There was no blood found on the pitch road where the injured Md. Nasir had fallen down. From the place, as PW 1 and PW 3 have deposed, other appellants dragged him upto the Gamhar tree and there they cut Md. Nasir, causing his death. The I.O. has purposely not been examined in this case, only because the fardbeyan of the informant Abdullah (PW 1) was recorded on 20.3.1999 at 22.30 hours at the place of occurrence i.e. Khunti-Tamar Road near the house of Amrit Puran. The informant Abdullah has signed on the fardbeyan and below his signature there is over-writing on the date, which was 20th March, 1999 and it was made 21st March, 1999. The informant Abdullah has signed on the fardbeyan and below his signature there is over-writing on the date, which was 20th March, 1999 and it was made 21st March, 1999. Similar is the position with respect to recording officer S.I. S.N. Das, which was made 21st of March, 1999 in place of 20th March, 1999. PW 1 and PW 3, the eye-witnesses, have deposed that the dead body of Md. Nasir was taken to the house of Md. Kayum (PW 5) on a cot but Md. Kayum (PW 5) has totally denied this fact that the dead body was taken to his house. The inquest report (Ext. 6) was prepared on 21st March, 1999 at 6.00 a.m. which was originally 20.3.1999. The S.I., who prepared the inquest report has signed on 21.3.1999. The learned counsel for the appellants has submitted that there is vast contradictions as to where the dead body was found. As per the inquest report it was found under the Gamhar tree on 21.3.1999 where the fardbeyan of PW 1 was recorded on 20.3.1999 at 22.30 hours but it was signed on the next page after over-writing 21.3.1999. On these grounds it was urged that the fardbeyan was changed and is alleged to have been recorded on 21.3.1999; whereas the police soon after the occurrence went to the place of occurrence, recorded the statement of the informant and also saw the dead body but no document was prepared in respect of the seizure of blood stained soil or inquest report at that very night of 20.3.1999. Learned counsel for the appellants has submitted that when there is doubt in the manner of the alleged occurrence that appellant Bhushan fired causing injuries on the left temporal region and left arm of Md. Nasir, who fell down on pitch road and thereafter, he was dragged and taken under the Gamhar tree, had the I.O. been examined he would have found blood fallen at the pitch road and also marks of dragging on the road with blood spots. Under the facts and circumstances of the case, the medical testimony should prevail over the ocular evidence, as there is contradictory evidence of the eyewitnesses i.e. PW 1 and PW 3 itself and has relied a case, reported in AIR 1950 SC 1873. Under the facts and circumstances of the case, the medical testimony should prevail over the ocular evidence, as there is contradictory evidence of the eyewitnesses i.e. PW 1 and PW 3 itself and has relied a case, reported in AIR 1950 SC 1873. It was also submitted that due to non-examination of the I.O., the place of occurrence where the dead body was found could not be established and has caused great prejudice to the appellant. On these grounds, it was urged that the appellants deserve acquittal, giving them benefit of doubt. 7. Learned A.P.P. refuting the arguments, advanced on behalf of the appellants, has submitted that the learned Court below has properly scrutinized the evidence of the eye witnesses i.e. PW 1 Md. Abdullah and PW 3 Md. Kalim, who were returning home along with deceased Md. Nasir. They have given vivid descriptions about the manner of the alleged occurrence. They have deposed that Bhushan Singh Munda fired twice, causing injuries on the head and arm of Md. Nasir on the pitch road near the house of Amrit Puran. When he fell down, other appellants dragged him and took him under a Gamhar tree near the house of Amrit Puran and cut him with farsa. PW 2 Dr. Vinay Kumar Prasad, who conducted autopsy on the dead body of Md. Nasir has found six sharp cut injuries on the person of the deceased, caused by heavy sharp cutting weapon. The learned A.P.P. has submitted that the appellants cut Md. Nasir with farsa and the injuries found by the doctor, ante-mortem in nature, corroborated the ocular evidence to this extent, which was rightly believed by the learned Court below, who convicted and sentenced them accordingly. 8. In the present case, none of the independent witnesses of the nearby house of Amrit Puran has been examined by the prosecution. The house of Amrit Puran where the appellants had concealed themselves, sitting at verandah, is not inhabited by the members of the family of Amrit Puran. By the side of the house, there is Gamhar tree. At about 6.30 p.m. PW 1 and PW 3 were returning home as usual after attending the meeting at the mosque. While Md. Nasir was 15 to 20 steps ahead, all the appellants appeared on the pitch road from the house of Amrit Puran. Bhushan Singh Munda fired twice, causing injuries to Md. At about 6.30 p.m. PW 1 and PW 3 were returning home as usual after attending the meeting at the mosque. While Md. Nasir was 15 to 20 steps ahead, all the appellants appeared on the pitch road from the house of Amrit Puran. Bhushan Singh Munda fired twice, causing injuries to Md. Nasir, who fell down on the pitch road. There is no seizure list to show that any blood stained soil was seized from the pitch road where blood had fallen from the body of the injured Md. Nasir. The formal witness PW 7 has proved only the formal First Information Report, fardbeyan and inquest report. PWs 1 and 3 have deposed that when Md. Nasir fell down on being injured by fire arm, opened by appellant Bhushan Singh Munda, the other appellants, namely, Lala Munda (since dead) and Churu Pahan dragged Md. Nasir and took him under a Gamhar tree where appellants Mangal Singh Munda, Shashi Munda and Gulab Munda cut him with farsa. Appellant Mangal Singh Munda and Gulab Singh Munda chased both of them, who fled away and went to the house of Md. Hasim (PW 4). They informed Md. Hasim (PW 4), Md. Mainul (PW 6) and others about the alleged occurrence. The police arrived there soon after the alleged occurrence where the fardbeyan of PW 1 Abdullah was recorded on which he signed (Ext. 1) and PW 4 Md. Hasim also signed (Ext. 1/1). There are about 100 houses nearby the place of occurrence but PW 1 and PW 3 had developed the prosecution story and gave explanation for non-examination of the nearby independent witnesses, stating that the criminal exploded bombs hence out of fear, none of the nearby persons came out of their homes rather they remained confined inside their houses. Due to non- examination of the IO no splinter of bomb explosion has been brought on record. Had the bomb been exploded, splinters of bomb must have been found at the place of occurrence, PW 1 and PW 2 have deposed that the dead body was taken to the house of Md. Kayum on a khat (cot). PW 4 Md. Kayum was informed by Md. Salim about the alleged occurrence. As Md. Salim has not been examined, the hearsay evidence of this witness regarding the manner of the alleged occurrence and the assailants is inadmissible in evidence. Kayum on a khat (cot). PW 4 Md. Kayum was informed by Md. Salim about the alleged occurrence. As Md. Salim has not been examined, the hearsay evidence of this witness regarding the manner of the alleged occurrence and the assailants is inadmissible in evidence. The later part of his evidence is that when he went near the house of Amrit. Puran, under a Gamhar tree, he saw the dead body, having sustained bleeding injuries near left ear and left ribs, due to fire arm injuries and the neck in the lower portion was cut completely. The police had gone to the place of occurrence but the inquest report was prepared on the next day i.e. 21st March, 1999. On the next morning i.e. 21st March, 1999 the dead body was lying under the Gamhar tree where it was seen on 20.3.1999 at 6.30 p.m. On that day as per the evidence of PW 4 police did not prepare any document rather in the morning on 21.3.1999 inquest report was prepared at 8.00 a.m. He has deposed that the dead body of Md. Nasir was never taken to his house. This statement belies the statements of the eyewitnesses i.e. PW 1 and PW 3. 9. Now I take up the issue as to whether the place of occurrence and the manner of occurrence find corroborated by the medical evidence of PW 2 Dr. Vinay Kumar Prasad, as deposed by PW 1 and PW 3. PW 1 and PW 3 have deposed that at the time of the alleged occurrence, deceased Md. Nasir was 15 to 20 steps ahead. It is not convincing to me as to why he alone was ahead at such a distance when they all were returning from mosque after attending the meeting together. The evidence of PW 1 and PW 3 is that appellant Bhushan Singh Munda fired twice, causing injuries on the left temporal region and left arm of Md. Nasir, who fell down on the pitch road. Thereafter, Lala Munda (since dead) and Churu Pahan dragged him 3 to 4 hands away from the pitch road under a Gamhar tree where all the appellants cut Md. Nasir, resulting his death. PW 1 and PW 3 claimed to have remained there till they were chased after cutting Md. Nasir. Nasir, who fell down on the pitch road. Thereafter, Lala Munda (since dead) and Churu Pahan dragged him 3 to 4 hands away from the pitch road under a Gamhar tree where all the appellants cut Md. Nasir, resulting his death. PW 1 and PW 3 claimed to have remained there till they were chased after cutting Md. Nasir. This part of ocular evidence of these eye-witnesses is also not convincing to me as to why they did not raise alarm and remained there as moot spectator, watching the entire occurrence. As per their evidence, there are houses of about 100 kumhars. The nearest houses are that of Shital Sao, Md. Abdul Rahman and Md. Samim. They were not informant about the alleged occurrence rather PW 1 and PW 3 fled away about 500 yards and reached Village-Sindri and informed Md. Kayum, Md. Hasim Ansari and Mainul, who are PWs 5, 4 and 6 respectively. From that Village-Sindri they came to the place of occurrence and saw the dead body under the Gamhar tree. The inquest report (Ext.) shows that the IO, who prepared the inquest report on 21.3.1999 at 6.00 a.m. found the dead body of Md. Nasir under the Gamhar tree, south of Khunti-Tamar pitch road. The evidence of PW 1 and PW 3 is that the dead body of Md. Nasir was taken to the house of Md. Kayum at the same night after preparing inquest report at the place of occurrence. When all these aspects are taken into consideration, the ocular evidence is totally contradicting about preparing of inquest report on 21.3.1999 at the place of occurrence and not at the house of Md. Kayum, as Md. Kayum (PW 5) has totally denied regarding taking the dead body of Md. Nasir in his house. The inquest report further shows that the IO found fire arm injuries at two places and also deep injury on his neck. He did riot find any mark of abrasion on the back of the dead body. PW 2 Dr. Vinay Kumar Prasad on 21.3.1999 at 4.30 p.m. conducted autopsy on the dead body of Md. Nasir and found the following injuries, ante- mortem in nature :-- (i) Sharp-cut injury 6" x 4" x 3-1/2" on back of neck apical region cutting the soft tissues, arteries vein and esophagus. PW 2 Dr. Vinay Kumar Prasad on 21.3.1999 at 4.30 p.m. conducted autopsy on the dead body of Md. Nasir and found the following injuries, ante- mortem in nature :-- (i) Sharp-cut injury 6" x 4" x 3-1/2" on back of neck apical region cutting the soft tissues, arteries vein and esophagus. (ii) Sharp-cut injury 2" x 1-1/2" x 1/2" on left temporal region 2" above left ear cutting the left temporal bone and brain matter. (iii) Sharp-cut injury 2" x 1/2" x 1/2" on right fact 1" below right mandible. (iv) Sharp cut injury 1-1/2" x 1/2" x 1/2" on left shoulder joint (v) Sharp cut injury 2-1/2" x 1" x 1/2" on left face at the level of middle on ramous of mandible. (vi) Sharp cut injury 2-1/2" x 1" x 1/2" on front part of the neck 1/2" above sterner clavicular joint. All the injuries were caused by heavy sharp cutting weapon. He neither found fire arm injury nor any mark of dragging on the person of the deceased nor the clothes were found torn due to abrasions or scratching. The inquest report (Ext. 6) and the Post Mortem Report (Ext. 3), when taken together, totally contradict the ocular evidence of PW 1 and PW 3, the only eyewitnesses. In the facts and circumstances of the case, the ocular evidence of PW 1 and PW 3 can not override the medical evidence of PW 2. The other independent nearby villagers have purposely not been examined by the prosecution only because the fardbeyan was recorded on 20.3.1999 at 10.30 hours and the dead body was shifted to the house of Md. Kayum at that very night, as the police had arrived about 7.30 p.m. On that day inquest report, as per the evidence of PW 1 and PW 3, was prepared at the place of occurrence and then the dead body was shifted to the house of Md. Kayum, which is contradictory statement and could not be believed. Non- examination of the independent witnesses has suppressed the real fact of this case as to whether Md. Nasir was first shot with fire arm and when he fell down on the pitch road, where blood oozed out, he was dragged at a distance of 3 to 4 hands under a Gamhar tree where he was cut with/area PW 1 Md. Nasir was first shot with fire arm and when he fell down on the pitch road, where blood oozed out, he was dragged at a distance of 3 to 4 hands under a Gamhar tree where he was cut with/area PW 1 Md. Abdullah (informant) has deposed that Bhushan Singh Munda cut the neck of Md. Nasir through and through with farsa This statement is also belied by the medical evidence of PW 2. The inquest report (Ext. 6) and the Post Mortem Report (Ext. 3) also belie the evidence of PW 1 that the neck of Md. Nasir was cut through and through. 10. Due to non-examination of the IO it is not clear as to whether the first place where Md. Nasir fell down, is the pitch road where blood has fallen down. There is also no mark of dragging or blood drop from pitch road to the flanks of the road up to the distance of 3 to 4 hands upto a tree. However, no seizure was made with regard to the blood stained soil from the place of occurrence i.e. under the Gamhar tree where Md. Nasir was cut with farsa and as such, no seizure list regarding blood stained soil is on the record. This creates doubt in my mind as to whether actually Md. Nasir was first fired where he was on the pitch road where he fell down. It also gets strengthened by the evidence of PW 1 and PW 2 that the dead body was taken to the house of Md. Kayum (PW 5) at the same night. On the other hand, the inquest report shows that the dead body remained throughout the night under the Gamhar tree. PW 3 has further addd a lie in his evidence by deposing that the dead body of Md. Nasir was watched throughout the night at the house of Md. Kayum by one Village chowkidar and one constable. The chowkidar and that constable have also not been examined. As I have mentioned that Md. Kayum (PW 5) has totally denied regarding taking of the dad body of Md. Nasir to his home. Nasir was watched throughout the night at the house of Md. Kayum by one Village chowkidar and one constable. The chowkidar and that constable have also not been examined. As I have mentioned that Md. Kayum (PW 5) has totally denied regarding taking of the dad body of Md. Nasir to his home. The suppression of the truth seems to be that at night when the police reached at the place of occurrence at 7.30 p.m., he did not find the involvement of these appellants and hence the fardbeyan was also recorded in the morning, although the alleged occurrence took place at about 5.30 p.m. on 20.3.1999. There was sufficient time for PW 1 and PW 3 to gain over the IO to concoct the prosecution case and deliberately after embellishment, in the morning, the fardbeyan was recorded afresh, implicating these appellants only due to land dispute. In my view, this is the reason that none of the independent villagers of the place of occurrence was examined by the IO. The explanation given by PW 1 and PW 3 that there was bomb explosion and out of fear the nearby persons remanded inside their homes, could not be corroborated due to non- examination of the IO as to whether there were splinters of bomb explosion hear the place of occurrence or not. In the fardbeyan it has not been mentioned that the assailants also exploded the bombs but later on they developed the prosecution case by adding that bomb was also exploded only because no other neighbouring witness has been examined by the IO. The IO seems to be in connivance with PW 1 and PW 3 and hence he purposely avoided to appear in Court for his evidence. 11. In a case reported in AIR 1998 SC 2852 , Kochu Maitheen Kannu Salim v. State of Kerala, it was laid down that "Evidence of eye-witness that he saw the assault made on deceased when he was accompanying him. Conduct of eye-witness in not informing anyone and disappearing till next day evening, found inconsistency with the act of his accompanying the deceased. Fact of his having seen the incident highly doubtful besides person filing First Information Report as per his own saying claiming certain statements in First Information Report also found doubtful. Moreover recovery of weapon of offence also found unreliable since it was uncorroborated by independent witness. Fact of his having seen the incident highly doubtful besides person filing First Information Report as per his own saying claiming certain statements in First Information Report also found doubtful. Moreover recovery of weapon of offence also found unreliable since it was uncorroborated by independent witness. Thus order of conviction of accused not proper". 12. The authority quoted above is quite applicable in the present case. PW 1 and PW 3, who were accompanying deceased Md. Nasir, have not informed the nearby persons, who might have been independent and reliable witnesses rather they watched the dragging of Md. Nasir by the appellant and taking him under the Gamhar tree and cutting him with farsa. Till that moment PW 1 and PW 3 never raised any alarm nor fled away immediately to knock the door of the nearby persons rather after Md. Nasir was cut and they were alleged to have been chased by the appellants, they dared to flee away at a distance of 500 yards to Village- Sindri. PW 4, PW 5 and PW 6, who are witnesses on the inquest report and fardbeyan did not find the assailants rather they saw only the dead body of Md. Nasir, PW 1 informed them that the assailants are the appellants. The police arrived at 7.30 p.m. soon after the occurrence at the place of occurrence but the assailants, who are named in the First Information Report, were not apprehended at night nor any arm.(farsa) was traced out nor any seizure of blood stained soil from the pitch road or from the place where the dead body was found under a Gamhar tree was seized. There are so many contradictory statements in all the spheres regarding establishment of place of occurrence and the manner of assault. The ocular evidence of PW 1 and PW 3 are also contradictory to the medical evidence of PW 2. Recording of fardbeyan, preparation of inquest report and non- examination of the IO, in my view, are due to the fact that PW 1 and PW 3 were in collusion with the IO, who has not been examined after falsely implicating these appellants, due to land dispute in between them. The learned Court below has not considered meticulously all these aspects, resulting erroneous finding of conviction and sentence, passed against these appellants, which can not be sustained in view of my above reasonings. 13. The learned Court below has not considered meticulously all these aspects, resulting erroneous finding of conviction and sentence, passed against these appellants, which can not be sustained in view of my above reasonings. 13. In the result, I find merit in this Criminal Appeal, which is hereby allowed and the impugned judgment and order of conviction and sentence, passed by the learned 2nd Additional Judicial Commissioner, Khunti, in Sessions Trial No. 79 of 2000, arising out of Arki PS case No. 10 of 1999, is hereby set aside and all the appellants are acquitted of the charges. As all the appellants are in custody, they are ordered to be released forthwith from custody, if not wanted in any other case. S.J. Mukhopadhaya, J. 14. I agree.