JUDGMENT P.G. Agarwal, J. 1. In Sessions Case No. 42(J-J) of 1991 the Addl. Sessions Judge, Jorhat held trial against as many as 11 accused persons under Section 148/149/302 IPC. During trial, prosecution examined as many as 13 witnesses mid thereafter vide impugned judgment dated 27.10.1993 the learned Addl. Sessions Judge acquitted all the accused persons. The present appeal against the order of acquittal has been preferred by the State of Assam. 2. We have heard, the learned Public Prosecutor Mr. P Bora for the appellant State and the learned counsel. Mr. T.J. Mahanta for the respondents. 3. On 25.11.1989 Dilip Rajowar lodged a written FIR Ext. 3 before the Police stating, inter alia, that on that day at 2.30 PM while his brother Pati Rajowar along with one Balaram Gowala were proceeding on the garden road, six accused persons named in the FIR armed with dao, lathi, bows and arrows attacked them and assaulted them causing grievous hurt to both Pati Rajowar and Balaram Gowala and they were removed to hospital where they succumbed to the injuries. The Police registered a case and after usual investigation submitted charge sheet against as many as 12 persons. However, one of the accused, persons Rabin Rajput absconded and he was declared an absconder and the trial proceeded against 11 accused parsons. PW 9 is Dr. Dhubrua Barua who held the autopsy over the dead bodies and found as follows: Injuries – Six number of accymasis over the left of chest and under region. Each injury measuring 5 cm x 4 cm (2"x 1"). (2) Two numbers of accymasis on the right arm measuring 2.5 cm x 2.5 cm (1" x 1"). (3) Five number of accymasis over chest and abdomen each measuring 5 cm x 2 cm (2"x 1"). On dissection under the healthy thorax injury walls, ribs and cartilages have been described as external injury, metch, and pharynx - congested. Abdomen – Injuries on walls already described in external injuries, walls, peritoneum, Pharynx and esophagus Congested. Right lobe of the liver is laurated measuring 2"x1"x 1/2". In the opinion of the doctor the death was due to synoscope as a result of liver injuries, which was sufficient to cause death and the injuries were caused by heavy blunt weapon. 4. The doctor found the following injuries on the person of Balaram Gowala. Right lobe of the liver is laurated measuring 2"x1"x 1/2". In the opinion of the doctor the death was due to synoscope as a result of liver injuries, which was sufficient to cause death and the injuries were caused by heavy blunt weapon. 4. The doctor found the following injuries on the person of Balaram Gowala. "Injuries found: (1) One lacerated wound on the occipital scalp measuring 5 cm x 1 cm. The underlying skull bone was also fractured. (2) One accynossis in the front chest measuring 5 cm x 2 cm (2"x 1") (3) Lacerated injuries on the lower lip measuring 1 cm x 1/2 cm (1/2 x 1/4"). (4) Lacerated injuries on the right shoulder measuring 1 cm x 1/2 cm (1/2"x1/4"). (5) 3 number of accymosis on the back of chest each measuring 2.5 cm x 1cm (1" x 1/2"). (6) Abrasion on the right elbow measuring 1 cm x 1 cm (1/2" x 1/2"). Cranium and spinal canal – The scalp injury was described in injury No. 1. The membrane were congested and there was already direct haemorrhage underlying injury No. 1 Brain was congested and composed. Thorax – External injury described, lungs were congested. Abdomen – External injury described, other organ are healthy. Muscles, Bones and Joints – The injury have been described as external injuries - the injuries were ante mortem in nature." In the opinion of the doctor the death was due to coma as a result of head injuries caused by heavy blunt weapon and the injuries were sufficient to cause death. 5. PW 1 is Kakoi Goala the mother of deceased Boloram and she has deposed that on the date of occurrence around 2 PM the accused persons armed with lathi, dao, bows arrows, etc., came to her house in search of Boloram and when she said that Boloram was not there, they went out in search of Boloram and found Boloram in the house of Liladhar Gossain along with the deceased Pati Rajowar. The accused persons assaulted both of them and dragged them to the road where they again assaulted them and when the deceased persons asked, for water, the accused persons behaved inhumanly and urinated in their mouth. Jiten Goala PW 2 is the brother of deceased and he has also fully supported the evidence of PW 1. The accused persons assaulted both of them and dragged them to the road where they again assaulted them and when the deceased persons asked, for water, the accused persons behaved inhumanly and urinated in their mouth. Jiten Goala PW 2 is the brother of deceased and he has also fully supported the evidence of PW 1. Bimal Rajowar PW 3 has been declared hostile by the prosecution, as he had resiled from his earlier statement recorded under Section 161 Cr. P.C. PW 4 Dilip Rajowar is another eyewitness to the occurrence and while he was on the road he saw the accused persons assaulting the deceased Pati and Boloram in the house of Liladhar. The witness further states that after the assault the accused persons tied the two deceased to a cycle frame and brought them under a tree on the road and when the deceased persons asked for water, the accused persons urinated in their mouth. Pravawati Goala PW 5 has fully supported the evidence of PW 1 and she has deposed about the coming of the accused persons to their house in search of Boloram and on failure to find Boloram in their house, they caused damage to the house by dao, etc. and they went to the house of Liladhar where they them on the road and again assaulted them. Rina Gossam PW 6 and her husband Liladhar Gossain PW 7 have been declared hostile by the prosecution, as they have resiled from their earlier statement. Anita Rajowar PW 8 has supported the prosecution case. PW 11 is the investigating police officer and he has deposed about the investigation made by him. 6. So far the death of the deceased Boloram and Pati is concerned, the trial court recorded the finding that this is a case of homicidal death and in view of the oral and medical evidence on record we have no hesitation whatsoever to hold that on the date of occurrence there was an incident of assault on Boloram and Pati as a result of which they sustained injuries and later on succumbed to the said injuries. 7. In this case we find that there is evidence, of five eyewitnesses and the trial court on consideration of their evidence did not find any infirmity in it. 7. In this case we find that there is evidence, of five eyewitnesses and the trial court on consideration of their evidence did not find any infirmity in it. The incident took place in Broad daylight and these five persons had seen the occurrence and deposed to that extent. Their evidence has been corroborated by the medical evidence on record as regards the nature and site of injuries as well as the weapons of assault. 8. In this case the motive for causing death has also been brought out/deposed to by the prosecution witnesses. It is stated that the deceased Boloram was in jail for about three months and he was released about 10/15 days prior to the occurrence. The deceased Boloram was in jail allegedly for causing death of one Ramlal and it is alleged that one Hiralal was witness to the said occurrence and on the date of occurrence after returning from jail Boloram had assaulted Hiralal whereupon the accused persons assaulted the two deceased. 9. In the present case we find that the learned trial court disposed of the sensational murder case involving death of two persons by writing a single paragraph as under : - "Here it appears to me that not a single disinterested witnesses supported the prosecution story. I am here at one with the argument put forward by the learned advocate for the accused persons Mr. Bordoloi that the accused persons might be killed by the relatives of Ramlal Gowala who was killed only by Boloram and Pati as admitted by PW 1 Kokoi the mother of Bolo. It is supported by the evidence of PW 10 Shri Ganesh that they were killed by the villagers. In my humble opinion the prosecution could have examined disinterested witness as the occurrence took place, in open road in addition to the residence of Liladhar. Even I.O. PW 10 stated that having seen the dead body of Pati it appeared to him as if he was given blow as he was pushing. So doubt arises in my mind it may be case of pushing and blowing as a retaliation of the previous murder case caused by deceased Boloram. Under the circumstances, I acquit the accused persons on benefit of doubt." 10. So doubt arises in my mind it may be case of pushing and blowing as a retaliation of the previous murder case caused by deceased Boloram. Under the circumstances, I acquit the accused persons on benefit of doubt." 10. The law regarding appeal against the order of acquittal has been more or less well settled and in view of the decisions of the Apex Court, this court held that the High Court should gave appropriate weight and considerations to the following aspect: (i) The views of the trial court as to the credibility of the witnesses should be properly weighed and considered. (ii) The presumption of innocence in favour of the accused is never weakened by the fact that he has been acquitted at the trial. (iii) The right of the acquitted persons to the benefit of reasonable doubt should not be denied on the score that they have been acquitted and are no longer accused. (iv) The appellate court should be slow in disturbing the findings of fact reached by the trial Judge who had the advantage of personality seeing the witnesses. (v) When the court does not agree with the view of the trial court yet reaches the conclusion that the view expressed by the trial court is reasonably possible, the same should not be disturbed. 11. In a recent case of Banwari Ram vs. State of U.P. and in the case of K. Ramakrishnan Unnithan vs. State of Kerala the Apex Court held that the High Court has full powers to re-appreciate the evidence and arrive at a different conclusion although no interference is called for merely because another view is possible. It was further observed that if the reasons given by the trial court are not sustainable and appreciation of evidence is parse bad there will be no limitation on the part of the High Court to set aside the order of acquittal. 12. The learned Public prosecutor has relied on the following observations of the Apex Court in the case of Surinder Singh vs. State of U.P. The Apex held: "10. Next comes the contention regarding interestedness of the witnesses for furthering the prosecution version. Relationship is not a factor to affect the credibility of a witness. It is more often then not that a relation would not conceal the actual culprit and make allegations against an innocent person. Next comes the contention regarding interestedness of the witnesses for furthering the prosecution version. Relationship is not a factor to affect the credibility of a witness. It is more often then not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if a plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible. 13. We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was replied by this Court as early as in Dalip Singh case in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed: (AIR p. 366 para 25). "25. We are unable to agree with the learned Judges of the High Court that the testimony of the two witnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely relaxed, to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in Rameshwar vs. State of Rajasthan (AIR at p. 59). We find, however, that it courts, at any rate in the arguments of counsel." 14. Again in Masalti vs. State of U.P. this Court observed: (AIR pp. 209-10, para 14) "But it would, we think, be unreasonable to contend that evidence given by the witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard-and-fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct." 15. No hard-and-fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct." 15. In the light of the above, let us examine the observations of the trial court as regards the interested witnesses as we find that the evidence of all the five eyewitnesses have been thrown out by the trial court by simply observing that they are interested witnesses. There is no dispute at the Bar that these witnesses are related witnesses. As the incident had occurred at their place they were the natural witnesses. Though there were some other independent witnesses and they were examined during investigation but during trial these witnesses turned hostile. They had supported the prosecution during investigation but when the matter was tried they turned turtle and their earlier statements were brought on record by way of contradiction. In the case of State of U.P. vs. Binode Kumar, the Apex Court reiterated its earlier observations in the following words: "Mere interestedness by itself is not a valid ground for discarding or rejecting the sworn testimony and nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction. What all that is necessary is that the evidence of interested or related witnesses should be subjected to a very careful scrutiny with extreme care and caution and if on such scrutiny the testimony is found to be intrinsically reliable then that evidence may be relied upon in the circumstances of the particular case to base a conviction thereon." 16. In a later case of Chandra Mohan Tiwari vs. State of Madhya Pradesh, it was held that interested witnesses are not necessarily false witnesses and they cannot be disregarded on that count only. In the case of Amar Singh vs. Balwinder Singh, three eyewitnesses were the members of the complainant family and there were two other eyewitnesses who belonged to some other family but these two witnesses were not examined as they were allegedly won over by the accused, the Apex Court held that the prosecution case does not become doubtful on that count. In the present case, we find that the independent witnesses were in fact examined during trial also but they turned hostile. In the present case, we find that the independent witnesses were in fact examined during trial also but they turned hostile. Over insistence on so called independent witnesses was commented upon by the Apex Court in the case of State of Rajasthan vs. Teja Ram, (1999) 2 Crimes 45 in the following words: "The over insistence on witnesses having no relation with the victim often results in criminal justice going awry. When any incident happens in a dwelling house the most natural witnesses would be the inmates of that house. It is unpragmatic to ignore such natural witnesses and insist on outsiders, who would not have seen anything. If the court has discovered from the evidence or even from investigation records that some other independent, person has witnessed any event connecting the incident, in question, than there is justification for making adverse comments against non examination of such persons as P.W. Otherwise, merely on surmises the court should not castigate a prosecution for not examining other persons of locality as PWs. Prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it though the neighborhood may be replete with other residents also." 17. We, therefore, hold that appreciation of the evidence of the eyewitnesses by the trial court was palpably wrong and no cogent reasons were given by the trial court for discarding the testimony of the eyewitnesses. In such a situation this court, in our opinion, should not hesitate to interfere with the order of acquittal. 18. As regards the observations of the trial court as quoted above, regarding benefit of doubt, we find that the plea raised by the defence counsel during arguments and accepted by the trial court was neither here nor there. As many as five eyewitnesses have stated as to who assaulted the deceased and during arguments the defence came up with the plea that the deceased might have been killed by some other persons who also had enmity with them and the court was too willing to accept the same to extend the benefit of doubt. The name of the relatives of Ramlal was never brought out even during cross-examination of the eyewitnesses and there was no suggestion even to that effect. It seems that the trial court failed to appreciate the principle governing the law regarding benefit of doubt. The name of the relatives of Ramlal was never brought out even during cross-examination of the eyewitnesses and there was no suggestion even to that effect. It seems that the trial court failed to appreciate the principle governing the law regarding benefit of doubt. In the case of Gangadhar Behera vs. State of Orissa, the Apex Court held: "17. Exaggerated devotion to the rule of benefit of doubt must nor nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice according to law (see Gurbachan Singh v. Satpal Singh). Prosecution, is not required to meet, any and every hypothesis put forward by the accused (see State of U.P. vs. Ashok Kumar Srivastava). A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved, perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish (see Inder Singh vs. State (Delhi Administration). Vague hunches cannot take the place of judicial evaluation. (A) Judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape... Both are public duties. (Per Viscount, Simon in Stirland vs. Director of Public Prosecution quoted in State of U.P. vs. Anil Singh, SCC p. 692, para 17.) Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. 19. In a recent case of the State of Madhya Pradesh vs. Dharkole, the Apex Court has further observed: "12. The concepts of probability, and the degrees of it cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. 19. In a recent case of the State of Madhya Pradesh vs. Dharkole, the Apex Court has further observed: "12. The concepts of probability, and the degrees of it cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time uninformed legitimisation of trivialities would make a mockery of administration of criminal justice. This position was illuminatingly stated by Venkatachaliah, J, (as His Lordships then was) in State of U.P. vs. Krishna Gopal and another." 20. In view of the foregoing discussions we have no hesitation whatsoever, to hold that the appreciation of the evidence as well as the law point evolved by the trial court was parse bad and it has resulted in miscarriage of justice and the order of acquittal needs interference. We, however, propose to consider the evidence to find out as to which of the accused persons had participated in the killing of the deceased Boloram and Pati. 21. The learned counsel for the accused persons has submitted that in the FIR lodged by Dilip Rajowar, he had named only six accused persons namely, Shivlal Rajput, Satya Ghatwal, Bachan Rajput, Chit Rajput, Rabin Rajput and Chaman Rajput. We also find that PW 1 has also stated about these six accused persons although in her earlier statement she has implicated all the twelve accused persons. Unfortunately there was no cross-examination on behalf of the accused persons. On the other hand Dilip Rajowar has categorically stated that accused Satya, Chit and Hiralal broke Pati's hand by hitting with hammer and accused Chaman lifted Boloram and dropped him. PW 5 has deposed about Bachan. 22. The absence of the name of some of the accused persons in the FIR is always not fatal when the FIR has been lodged by a reported witness. PW 5 has deposed about Bachan. 22. The absence of the name of some of the accused persons in the FIR is always not fatal when the FIR has been lodged by a reported witness. But in the present case the FIR was lodged by the eyewitness Dilip himself and hence non-mentioning of the names of Jadu Rajput, Bhala Rajput, Garib Rajput, Damla Goala, Sunil Bhumij and Anil Bhumij casts a strong doubt regarding their involvement in the incident. None of the eyewitnesses have stated about their participation in the assault, on the two deceased persons. We are conscious of the fact that the witnesses sometime put embroidery to the actual prosecution case by giving exaggerated version for the reasons best known to them. However, that cannot be a ground to throw the entire case overboard. If the evidence is otherwise acceptable the court can always act on the same. 23. In view of the above, we hold that so far the acquittal of accused No. 1 Jadu Rajput, No. 2 Bhala Rajput, No. 3 Garib Rajput, No. 4 Damla Rajput, No. 5 Anil Bhumij and No. 6 Sunil Bhumij is concerned, no interference is called for and the benefit of doubt extended to them stands. The appeal filed by the State is however, allowed in respect of the respondents No. 1. Hiralal Rajput, No. 2. Chaman Rajput, No. 3. Bachan Rajput, No. 4. Chit Rajput and No. 5. Satya Ghatowar. The order of acquittal recorded by the trial court stands set aside. 24. In the present case, we find that these accused persons being armed with lethal weapons first went to the house of Boloram Gowala and searched for him and when they did not find Boloram in the house they caused damages to the house and thereafter went to the house of Liladhar Gossain where they found Boloram in the company of Pati Rajowar. They assaulted these two deceased persons and brought them out near a tree and thereafter again these two injured persons were further assaulted leading to their death. The incident of passing urine in the mouth of the deceased persons when the later asked for water is most disgusting and depicts an inhuman nature and the intention of the accused persons to punish the deceased for allegedly assaulting the accused Hiralal. The incident of passing urine in the mouth of the deceased persons when the later asked for water is most disgusting and depicts an inhuman nature and the intention of the accused persons to punish the deceased for allegedly assaulting the accused Hiralal. Considering the nature of injuries sustained and opined by the doctor that the injuries were sufficient to cause death, we hold that intention to cause death is writ large and accordingly hold the respondents accused persons Hiralal Rajput, Chaman Rajput, Bachan Rajput, Chita Rajput, Satya Ghatowar guilty of the offence under Section 302/34 IPC as the accused persons have acted in. furtherance of common intention of all. 25. We have heard the learned counsel for the accused persons as regards the sentence. 26. In the above incident two persons have lost their lives and considering all aspect of the matter, the above five accused persons are sentenced to imprisonment for life and to pay a fine of Rs. 1000 each, in default further imprisonment for one month. The five convicts are directed to surrender forthwith before the Sessions Judge, Jorhat to serve out the sentence and to pay the fine. The Sessions Judge, Jorhat is directed, to procure the attendance of all the convicts by issuing non-bailable warrants of arrest. Send down the records along with a copy of this judgment.