BILAL NAZKI, ACJ. ( 1 ) SOLE accused in Sessions Case No. 308 of 2001 on the file of the V-Addl. Sessions Judge, Tirupati is the appellant. He was tried for the offence under Section 302 IPC, convicted thereunder and sentenced to undergo rigorous imprisonment for life and to pay a fine of rs. 1,000/- in default he has to suffer simple imprisonment for six months. ( 2 ) THE allegations against the accused were that on 25. 8. 2000 at about 2. 00 p. m. while the deceased Thyagaraja Naidu was grazing his cattle (cows) near Erragunta of ravanappagaripalli Village, the accused picked up quarrel with him and committed his murder by giving a blow with a bill hook on the back side of his head causing multiple injuries which resulted in his death. On the basis of these allegations a charge under Section 302 IPC was framed against the accused. He pleaded not guilty and claimed to be tried. Prosecution examined 12 witnesses and exhibited 15 documents. Defence also examined one witness. ( 3 ) BRIEFLY speaking, the case of prosecution was that the deceased and the accused belong to the same village of ravanappagaripalle. P. W. I is the cousin, p. W. 2 is the wife, P. W. 3 is the daughter and P. W. 6 is the brother of the deceased. It was the case of the prosecution that there was a dispute between the accused and the deceased with regard to sharing of water from a well. The family of the deceased consisting of himself and his two brothers owned land which had a well in it. The accused purchased half share of land from the brothers of deceased along with well and other half share of the land remained with the deceased. The accused wanted to cultivate not only the land purchased by him from the brothers of deceased, but also the land which he had owned prior to purchase, with the water from the well. The deceased objected to it. Some mediation took place three months prior to the death of deceased, which failed. On 25. 8. 2000 at about 9. 00 or 10. 00 a. m. P. W. I had taken his cows for grazing to poramboke, land near Erragunta. The deceased also had taken his cows for grazing near Erragunta which was 100 feet away from P. W. 1. On 25. 8. 2000 at about 9. 00 or 10. 00 a. m. P. W. I had taken his cows for grazing to poramboke, land near Erragunta. The deceased also had taken his cows for grazing near Erragunta which was 100 feet away from P. W. 1. At about 1. 30 to 1. 40 p. m. , the occurrence took place in presence of some of witnesses. The case mainly rests on the evidence of PWs. 1, 2, 4 and 5. ( 4 ) MR. C. Padmanabha Reddy, learned senior Counsel appearing for the appellant/accused submits that the testimony of alleged eye-witnesses could not be believed in view of inherent defects in the evidence. The main contentions of the learned Senior counsel are: (1) that the testimony of PWs. 1, 2, 4 and 5 was not supported by medical evidence, (2) that although the accused had suffered injuries, but none of the alleged eye-witnesses spoke about such injuries, (3) that the occurrence must have taken place in different circumstances, as, according to the earliest version of the prosecution witnesses, the occurrence had taken place at 2. 15 p. m. and the accused had also been admitted in Tirupathi Hospital at 2. 30 p. m. , which was physically and practically impossible, thereafter the time of occurrence was changed from 2. 15 p. m. to 1. 15 p. m. ( 5 ) THE learned Senior Counsel submits that all these infirmities show that it was doubtful whether the alleged eye-witnesses were present at the place of occurrence. In the light of these arguments, a detailed look at the evidence would be imperative. ( 6 ) P. W. I is the cousin of the deceased. He stated that the deceased was murdered on 25. 8. 2000 at Erragunta at 2. 30 p. m. On 25. 9. 2000 at about 9 or 10 a. m. , he took his cows for grazing to poramboke lands near Erragunta. The deceased had also taken his cows for grazing, he was grazing his cows 100 feet away from him near Erragunta. At about 1. 30 or 1. 40 p. m. , laxmaiah Naidu (P. W. 4), Nagaraja Naidu (P. W. 5) and wife of the deceased. (P. W. 2) came to Erragunta. P. W. 2 brought lunch for the deceased and PWs. 4 and 5 came there in order to purchase cows from the deceased. At about 1. 30 or 1. 40 p. m. , laxmaiah Naidu (P. W. 4), Nagaraja Naidu (P. W. 5) and wife of the deceased. (P. W. 2) came to Erragunta. P. W. 2 brought lunch for the deceased and PWs. 4 and 5 came there in order to purchase cows from the deceased. By the time they came to the witness, they heard the cries of deceased and accused. On hearing the cries, they proceeded towards the deceased and accused and found the accused hacking the deceased with Machukathi (bill hook) on the back of his head. While they were running towards the deceased and accused, they saw the accused hacking the deceased on his head twice or thrice and ultimately the weapon slipped from the hands of accused and fell on the ground. Thereafter the deceased hurled a stone against the accused. The deceased then fell down on the ground. The accused picked up a stone and beat the deceased on his mouth and head. By the time they reached the scene of occurrence, the accused picked up bill hook and left the place. On instructions of P. W. 2, the witness went to the village and brought the daughters of deceased viz; Bharathi (P. W. 3), Gayathri (L. W. 3) and Ramadevi (L. W. 6) to the place of occurrence. The deceased called his daughter (P. W. 3) nearer to him, some water and told her that he was attacked by the accused. Ultimately he died. Thereafter he went to Kongaravaripalli where Umpathi naidu (P. W. 6) who is the brother of deceased was residing and informed him about the death of the deceased. To his dictation, P. W. 6 drafted a report which was presented by him in Chandragiri Police station. Ex. P1 was the complaint lodged by him which contained his signature. He was examined by police. The accused and the deceased had joint rights in the irrigation well. There was a dispute with regard to sharing of water between them. Originally the well belonged to the joint family of the deceased. Ten years before the occurrence the accused purchased 1 acres of land along with half share in the said well from P. W. 6 and Varadarajulu naidu who are brothers of deceased. There was a dispute with regard to sharing of water between them. Originally the well belonged to the joint family of the deceased. Ten years before the occurrence the accused purchased 1 acres of land along with half share in the said well from P. W. 6 and Varadarajulu naidu who are brothers of deceased. Since the accused intended to irrigate not only the land purchased by him from the brothers of deceased, but also the land owned by him prior to purchase. Then differences and disputes arose between the accused and deceased. In his cross-examination he stated that there was no bus route from his village to Arigalavaripalli and they had to go by foot. The distance between the scene of occurrence and the disputed well was about 1 K. M. There, were no wells or bore wells near the scene of occurrence. Immediately, after the occurrence he went first to his house by foot which was about 1 K. M. from the scene of occurrence and from his house he went to bus stop which was at a distance of 1 furlong and from there he went to Kongaravaripalli to inform the death of deceased to his brother. Kongaravaripalli is at a distance of 5 K. Ms. from his village. He got a bus at 3. 00 p. m. , at the bus stop of his village and reached Kongaravaripaili by 3. 15 p. m. It took about half an hour for preparing Ex. P1 and then he went to Chandragiri. He reached Chandragiri Police Station by 5. 30 p. m. or 6. 00 p. m. Chandragiri Police Station was at a distance of 6 miles from kongaravaripalli. In Ex. P1 he stated, "while we tried to take him for treatment at about 2. 30 p. m. he died. ( 7 ) P. W. 2 is the wife of deceased. She stated that on the date of death of her husband, her husband had taken cows to erragunta for grazing. He had instructed her to get lunch by noon. At about 1. 00 p. m. while she was about to take lunch for her husband, PWs. 4 and 5 came to her house in order to take away a cow which they purchased a day prior thereto by giving advance of Rs. 100/ -. He had instructed her to get lunch by noon. At about 1. 00 p. m. while she was about to take lunch for her husband, PWs. 4 and 5 came to her house in order to take away a cow which they purchased a day prior thereto by giving advance of Rs. 100/ -. Since the cow was also taken by the deceased for grazing, she asked them to follow her to Erragunta. At about 1. 15 p. m. , she along with PWs. 4 and 5 left the house. When they reached the place where P. W. 1 was grazing the cows, they heard the cries of her- husband and accused at a distance of about 100 feet away from them. They saw the accused and the deceased and ran towards them. By the time they reached them, the accused hacked her husband with Machukathi (bill hook) on the rear side of his head. The machukathi (bill hook) slipped from the hands of accused and fell on the ground. Thereafter the accused and her husband picked up stones. Her husband, in order to escape from the clutches of accused, beat the accused with the stone on his face. The accused, in turn, beat her husband on his mouth and forehead with stone. The accused, having seen them approaching him, picked up the Machukathi (bill hook) from the ground and left the place. Within two or three minutes the occurrence was over. It took about 10 minutes for her to reach the place where P. W. 1 was grazing his cattle. Then she sent P. W. 1 to her house to bring her daughters, accordingly P. W. 1 brought her daughters including P. W. 3. P. W. 3 gave some water to the deceased and made enquiries about the occurrence from him. The deceased told her that the accused had hacked him on the head and beat him with stone and fled away and so saving the deceased collapsed. Thereafter she sent P. W. 1 to Kongaravaripalli to inform about the occurrence to younger brother of deceased. Then she also spoke about the disputes with regard to sharing of water from the well. In her cross- examination she stated that she was examined by the police at the time of inquest held over the dead body of deceased. Thereafter she sent P. W. 1 to Kongaravaripalli to inform about the occurrence to younger brother of deceased. Then she also spoke about the disputes with regard to sharing of water from the well. In her cross- examination she stated that she was examined by the police at the time of inquest held over the dead body of deceased. Her son was a practising advocate at Tirupati and he got 15 or 20 days standing at the bar by the date of occurrence. She did not know as to how many phones were in the village, but she knew that some phones were in the village. Her son was at Tirupati on the date of occurrence. Her husband had died between 2. 15 and 2. 30 p. m. It was true that M. Varadarajulu (L. W. 7) who is brother of deceased was a resident of chandragiri Town. She did not instruct p. W. 1 to inform her son about the death of her husband. She did not know whether tirupati is at a distance of 35 KMs from her village. P. W. 1 returned to the village at about 8. 30 or 9. 00 p. m. along with police. Her son came to the village before the arrival of P. W. 1. Her son had come to the village at 4. 30 or 5. 00 p. m. She did not make any enquiry with her son as to how he had come to know about the occurrence. It was true that her husband lodged a complaint against Ramachandra Naidu, vasunaidu and 9 others which ended in acquittal. In that incident her husband had lost his ear. Her husband had not gone for any surgery to repair his ear. ( 8 ) P. W. 3 is the daughter of deceased. After stating what had been stated by pws. 1 and 2 that the deceased had taken cows for grazing and after stating that at about 1. 15 p. m. her mother and PWs. 4 and 5 had gone to the place where her father was grazing cows, she stated that half an hour thereafter P. W. 1 had come to her house and informed her that the accused attacked her father, hacked him on the rear side of his head and beat him with a stone on his face. Then she along with L. Ws. Then she along with L. Ws. 3 and 6 went to the scene of occurrence. P,w. 1 accompanied them. She found her father with injuries. She poured water in the mouth of her father and made enquiry from him as to what had happened. Her father informed her that the accused hacked on his head and after the weapon slipped from his hand, he picked up a stone and beat him on his face and head and thereafter the accused ran away with the weapon and so saying her father died. Then her mother instructed P. W. 1 to go to Police station to lodge a complaint. She also spoke about the disputes with regard to shanng of water from the well. In her cross-examination she stated that the timings given by her in chief-examination were not exact, but approximate. ( 9 ) P. W. 4. stated that he knew the accused and deceased. A day prior to the occurrence he purchased a cow from the deceased for Rs. 4,500/- and paid an advance of Rs. 100/ -. On the next day he and his grand-son (L. W. 10) went to the house of deceased to take away the cow purchased by him. They came to know through P. W. 2 that her husband had taken the cow to erragunta for grazing purpose. Therefore he along with L. W. 10 and P. W. 2 went to the scene of occurrence. By the time they reached the place where P. W. 1 was grazing the cattle, they, heard cries of accused and deceased. On hearing the cries, they proceeded towards the accused and deceased and by the time they reached the place of occurrence, the accused hacked the deceased on the rear side of his head and after the weapon slipped from his hand, the accused picked up a stone and beat the deceased with the stone on his face and head. On seeing the witness and others approaching towards the scene of occurrence, the accused left the place along with weapon. The accused beat the deceased with stone five or six times. Thereafter p. W. 3 instructed P. W. 1 to go to her house to get her daughters. Accordingly P. W. 1 brought P. W. 3, LWs. 3 and 6 to the scene of occurrence. The accused beat the deceased with stone five or six times. Thereafter p. W. 3 instructed P. W. 1 to go to her house to get her daughters. Accordingly P. W. 1 brought P. W. 3, LWs. 3 and 6 to the scene of occurrence. After P. W. 3 came to the scene of occurrence, she poured water in the mouth of her father and later her father (deceased) informed her that the accused hacked and beat him with a stone and he collapsed within a few minutes thereafter. There were disputes and differences between the accused and deceased in connection with using of water from the well. In his cross-examination he stated that he was aged about 60 years by the date of occurrence. He had underwent eye operation to his both eyes nearly 10 years before due to loss of eye vision. ( 10 ) P. W. 5 stated that P. W. 4 is the brother of his paternal grandfather and he was trading in cattle. On the date of occurrence, he and P. W. 4 visited the house of P. W. 2 in order to take away the cow which was purchased by P. W. 4 from the deceased. They learnt that the said cow was taken away by the deceased for grazing to Erragunta. He, P. W. 4 and p. W. 2 went to the place of occurrence and by the time they reached the place where P. W. 1 was grazing cows, they heard cries of the accused and deceased. Then they ran towards the accused and deceased and in the meantime the accused hacked the deceased. The weapon slipped from the hands of accused. Thereafter the deceased and accused picked up stones. The deceased hurled stone against the accused which hit the accused, but he could not say where exactly the stone hit the accused. Thereafter the accused beat the deceased on his face with the stone and ran away. ( 11 ) P. W. 6 is the brother of the deceased. He stated that on the date of occurrence i. e. , 25. 8. 2000 while he was in his house at 2. 30 p. m. at Kongaravaripalli village, he came to know about the death of his brother through P. W. 1 who requested him to draft a complaint to his dictation. Accordingly he scribed Ex. P1 which contained his handwriting. 8. 2000 while he was in his house at 2. 30 p. m. at Kongaravaripalli village, he came to know about the death of his brother through P. W. 1 who requested him to draft a complaint to his dictation. Accordingly he scribed Ex. P1 which contained his handwriting. Thereafter he went to Ravanappagaripalli and saw the dead body of his brother at the place of occurrence. At about 5. 30 p. m. the son of deceased had come to the scene of occurrence. Differences arose between his brother and the accused with regard to using of water from a well. ( 12 ) P. W. 7 stated that he acted as a panchayatdar three months prior to the occurrence to settle a dispute between the accused and deceased with regard to sharing of water from the well to their fields, but the Panchayat failed. ( 13 ) P. W. 8 is a witness to the inquest held over the dead body of deceased. He stated that after examining the dead body and witnesses, he came to the conclusion that the deceased had died due to stone hit injuries. He exhibited M. Os. 2 to 5 which were seized by police during inquest. ( 14 ) P. W. 9 was a press reporter. He stated that he acted as a panchayatdar for arrest of accused and seizure of M. O. 1 along with M. Munirathnam (L. W. 18) at the instance of police. On 27. 9. 2000 when he was near book stall which was just opposite to police station, a police constable came to him at 9. 00 a. m. and took him to police station. Another panchayatdar-L. W. 18 also followed him to the police station from mechanic shop. Circle Inspector of Police, chandragiri along with his staff and the panchayatdars went to Tirupati and found the accused near Hero Honda Shop of Town club Junction of Tirupati and stopped the jeep. On the direction of Circle Inspector of police, constables brought the accused. Circle Inspector of Police, after examining the accused, arrested him and on his statement they proceeded to Erragunta cheruvu of Ravanappagaripalli from where the accused went to Erragunta Cheruvu and picked up a knife (M. O. 1) from the water pond and gave it to the Circle Inspector of police who seized it under the cover of a mahazar-Ex. P3. Circle Inspector of Police, after examining the accused, arrested him and on his statement they proceeded to Erragunta cheruvu of Ravanappagaripalli from where the accused went to Erragunta Cheruvu and picked up a knife (M. O. 1) from the water pond and gave it to the Circle Inspector of police who seized it under the cover of a mahazar-Ex. P3. In his cross-examination he stated that he might have acted as panchayatdar in two or three police cases and gave evidence. He denied the suggestion that he was a stock witness to the police and he acted as panchayatdar in about 20 police cases. ( 15 ) P. W. 10 is the doctor who conducted post-mortem examination over the dead body of deceased. He found the following external injuries:1. aceration of 2 x 2 cms bone deep over left frontal region of head; 2. Laceration of 3 x 3 cms brain deep over left frontal region of head; 3. Laceration of 1 x 0. 5 cms vertical, tissue deep, 3 cms above left ear; 4. Laceration of 2 x 2 cms scalp deep over mid parietal region of head; 5. Laceration of 2 x 1 cms scalp deep vertical 1 cm back to wound No. 4; 6. Abrasion of 2 x 0. 5 cms vertical over right side of forehead; 7. Laceration of 2 x 1 cms tissue deep, horizontal at the outer angle of right nostril; 8. Laceration of 3 x 2 cms through and through vertical over the middle of upper lip; 9. Fracture dislocation of both upper incisor teeth; 10. Contusion of 2 x 1 cms horizontal over middle of inner aspect of lower lip; 11. Abrasion of 2 x 1 cms vertical over top of right shoulder; 12. Abrasion of 5 x 3 cms horizontal over front of right shoulder, ante-mortem wounds internal: 13. Scalp contusion of 33 x 11 cms vertical over left fronto parieto temporal occipital regions of scalp; 14. Depressed fracture of 12 x 9 x 1. 5 cms horizontal over left fronto parieto temporal bones of skull; 15. Fissured fracture of 12 cms long extending from Fracture No. 14 to right frontal through left frontal bone;16. Fissured fracture of 17 cms long extending from Fracture No. 14 to right side of occipital bone through left side of occipital bone; 17. 5 cms horizontal over left fronto parieto temporal bones of skull; 15. Fissured fracture of 12 cms long extending from Fracture No. 14 to right frontal through left frontal bone;16. Fissured fracture of 17 cms long extending from Fracture No. 14 to right side of occipital bone through left side of occipital bone; 17. Dural rent of 5 x 4 cms horizontal over left fronto parieto temporal lobes of brain; 18. Laceration of 6 x 5 cms horizontal over left fronto temporo parietal lobes of brain; 19. Difuse, sub dural and subarachnoid haemorrhages over entire brain substance more on left; 20. Intracerebral bleeding into left cerebral hemisphere of brain; ( 16 ) HE stated that the sharp edged heavy weapon could cause cut lacerations injury, but if the same weapon was used not with much force, it could cause only incised injury without any laceration. M. O. 1 is a heavy weapon, but it could not have caused external injuries 1 to 5 and 10, if its sharp edge was used. M. O. 1 could have caused those injuries if its blunt side was used. M. O. 2 could have caused all external injuries 1 to 12. If the head was fixed i. e. , by holding against hard object or was sleeping by keeping the head on hard object, the fracture could occur other than the place of inflict due to impact. ( 17 ) P. W. 11 was the Civil Assistant surgeon in SVRR GG Hospital, Tirupati. She stated that she had examined the accused and found the following injuries: 1. Punctured wound of 3 cm length with bone deep on upper part of nose; 2. Multiple abrasions of size 2 to 7 cms over back of neck; ( 18 ) SHE stated that at the time of examination the accused stated that he, was beaten by known person with stone at ramanappagaripalli at 1. 15 p. m. on 25. 8. 2000 and the same fact was mentioned in Ex. P7 which was the relevant page of accident register. She sent M. L. C. to concerned police. She did not refer the accused to any other hospital, as the injury was simple in nature. In her cross- examination she stated that the accused had informed her that he was attacked by a known person. P7 which was the relevant page of accident register. She sent M. L. C. to concerned police. She did not refer the accused to any other hospital, as the injury was simple in nature. In her cross- examination she stated that the accused had informed her that he was attacked by a known person. ( 19 ) P. W. 12 was the Inspector of Police, chandragiri at the relevant time who conducted investigation. He stated that while he was in the police station, he received a written complaint-Ex. P1 from p. W. 1. He registered it as a case in cr. No. 130 of 2000 under Sections 302 and 1 09 of IPC and issued FIRs to all concerned officers. Ex. P8 was the FIR sent to Court. He examined P. W. 1 at the police station and recorded his statement under Section 161 cr. P. C. Then he along with his staff proceeded to scene of occurrence at erragunta Pond near Ravanappagaripalli and found the dead body of deceased with injuries. As it was late in the night, he posted a guard at the scene of occurrence. Then he searched for the accused at ramanappagaripalli and found him absconding. On 26. 8. 2000 at 8. 00 a. m. he seized neem branches near mango garden of accused under the cover of a mahazar- ex. P9 in presence of panchayatdars. Again he visited the scene of occurrence and secured the presence of P. Ws. 1 to 3 and others, examined and recorded their statements during the course of inquest. Ex. P2 was the inquest report. He prepared rough sketch of scene of occurrence. He also examined PWs. 4 to 7 at Gaddakindapalli and recorded their statements. He seized material objects. On 27. 9. 2000 on reliable information he along with his staff and panchayatdars P. W. 9 and L. W. 18 proceeded to Tirupati and arrested the accused at 10. 00 am near Town Club, Tirupati under the cover of mahazar-Ex. P4. On the disclosure statement made by the accused, they proceeded to Erragunta Cheruvu and reached by 1. 00 p. m. The accused got into the water tank and picked up a bill hook- m. O. 1 and produced it before him. He seized it under the cover of mahazar-Ex. P3. The accused himself got admitted in SVRR gg Hospital, Tirupati on 25. 8. 00 p. m. The accused got into the water tank and picked up a bill hook- m. O. 1 and produced it before him. He seized it under the cover of mahazar-Ex. P3. The accused himself got admitted in SVRR gg Hospital, Tirupati on 25. 8. 2000 and absconded from the hospital. The duty doctor who issued M. L. C. to police, Alipiri informed the police that the injured-accused absconded from the hospital. Then the Alipiri police sent intimation to him. Ex. p13 was the intimation, dated 25. 8. 2000 given to him by Station House Officer, Alipiri Police station. He had obtained the wound certificate of accused which was Ex. P6. In his cross-examination he stated that it was not true to suggest that P. W. 1 did not lodge complaint-Ex. P1 at 6. 00 p. m. on 25. 8. 2000 and it was given at a later hour and he ante timed it. Col. No. 15 of inquest report contains the gist of the version given by the witnesses who were examined at the time of inquest. It was true that Col. No. 15 of inquest report does not contain any recital to the effect that the deceased made dying declaration to his daughter P. W. 3 in presence of PWs. 1 and 2. It was also true that it was not recited in Col. No. 15 of inquest report that the deceased assaulted the accused and caused bleeding injuries. As per Col. Nos. 3, 4 and 15 of inquest report the occurrence had taken place at 2. 00 p. m. He received definite information that the accused was moving near Town club, Tirupati. It was true that P. W. 1 had not stated in his 161 Cr. P. C. statement that the accused hacked the deceased twice or thrice, the deceased picked up a stone and hurled against the accused and the accused hacked the deceased only once. P. W. 1 had also not stated before him that since the accused was watering the land other than the land purchased by him from the brothers of deceased, disputes arose between the accused and the deceased. It was true that P. W. 2 had not stated in her 161 Cr. P. C. statement that the cow purchased by PWs. 4 and 5 was also taken by her husband for grazing on the date of occurrence. It was true that P. W. 2 had not stated in her 161 Cr. P. C. statement that the cow purchased by PWs. 4 and 5 was also taken by her husband for grazing on the date of occurrence. She had also not stated that by the time she met P. W. 1, they all heard the cries of accused and deceased and they proceeded towards the scene of offence after hearing the cries and she saw the accused hacking her husband on the rear side of the head. She had also not stated that her husband, in order to escape from the clutches of the accused, beat the accused with the stone on his face and the accused beat her husband on his forehead with a stone. She had also not stated that the accused, on seeing them took away machukathi (bill hook) from the ground and ran away. She had also not stated that the occurrence was over within two or three minutes and she directed P. W. 1 to get her daughters from the village. She had also not stated that for the last one and half year prior to the death of her husband there were disputes with regard to sharing of water in the well insofar as other lands between her husband and the accused and the Panchayat was failed since the accused stated that he intended to irrigate not only the lands purchased from her brother-in-law and also other lands which he was owning. It was true that p. W. 3 had not stated in her 161 Cr. P. C. statement that P. W. 1 had come to her on the request of her mother to inform about the occurrence. It was true that P. W. 4 had not stated in his 161 Cr. P. C. statement that he had seen the entire incident by standing at the place where P. W. 1 was grazing the cattle and he reached the scene of occurrence along with P. Ws. 1, 2 and L. W. I 0 after the incident. He had also not stated that the accused had taken to his heels and the accused beat the deceased with stones four or five times and P. W. 1 was sent by p. W. 2 to get her daughters to the deceased. It was true that P. W. 5 had not stated as in 161 Cr. He had also not stated that the accused had taken to his heels and the accused beat the deceased with stones four or five times and P. W. 1 was sent by p. W. 2 to get her daughters to the deceased. It was true that P. W. 5 had not stated as in 161 Cr. P. C. statement that P. W. 4 had been trading in cattle and having come to know that the cow purchased by P. W. 4 was also taken away by the deceased for grazing, they proceeded to Erragunta along with P. W. 2 and they heard the cries of deceased and accused and after hearing cries, they all ran towards the scene of occurrence and the deceased hurled stone against the accused. He had also not stated that the motive for the accused to attack the deceased was with regard to dispute of well water and the accused beat the deceased on his face with stone and they all sent P. W. 1 to get the daughters of p. W. 2 to the scene of occurrence. It was true that P. W. 6 had not stated as in 161 cr. P. C. statement that at about 2. 30 p. m. while he was in his house P. W. 1 had come to his house and informed him about the death of his brother and he scribed Ex. P1. It was true that P. W. 7 had not stated as in 161 Cr. P. C. statement that the mediation failed since the accused stated that he intended to irrigate not only the lands purchased from the brothers of deceased, but also the land owned by him with the same well water. These are all omissions in the statements of witnesses. ( 20 ) D. W. 1 who was examined by the defence stated that he was working as assistant Professor, Radiology Department in SVRR, GG Hospital, Tirupati. On 25. 8. 2000 one V. Giridhara Naidu s/o balaram Naidu (accused) of Ravanappagaripalli village of Chandragiri Mandal was referred to Radiology Department by Causalty department of SVRR GG Hospital for taking X-ray of nasal bone. He identified the accused and stated that the X-ray shown to him relates to the accused. Ex. D5 was the X-ray of the accused which shows that there was a fracture of nasal bone. Ex. He identified the accused and stated that the X-ray shown to him relates to the accused. Ex. D5 was the X-ray of the accused which shows that there was a fracture of nasal bone. Ex. D6 was the cover pasted with request form. ( 21 ) IN the first instance all the alleged eye-witnesses maintained that the occurrence took place at 2. 15 p. m. , whereas it was conclusively proved by testimony of p. W. 11-doctor that she had examined the accused at SVRR GG Hospital, Tirupati at 2. 30 p. m. Therefore it becomes doubtful whether the occurrence took place at 2. 15 p. m. and whether the correct version of the occurrence was brought before the court. Secondly we have seen from the evidence that P. W. 1 stated that he was an eye-witness, but P. W. 2 stated in her statement that they reached a place from where they saw the accused and the deceased having a fight, and it took ten minutes for her to reach the place where P. W. 1 was grazing the cows. Then she along with two others saw the occurrence, she went to P. W. 1 and asked him to go to her house to bring her daughters. This creates a doubt whether p. W. 1 was at all an eye-witness to the occurrence. About the actual occurrence all the alleged eye-witnesses have given a parrot like story which creates a doubt on its own. Similarly P. W. 1 as well as P. W. 3 did not speak about the injuries caused to the accused. This was only spoken to by p. W. 2, although P. W. 4 said that the deceased had also attacked the accused with a stone, but he could not say on what part of the body of accused the deceased attacked and which part of the body of accused received injuries. If he had a ahotogenic memory as to what the accused did, how could he not remember what the deceased did. There are so many omissions pointed out in the statements of the eye-witnesses which have been accepted by the investigating Officer. We have discussed the medical evidence also. According to the doctor, most of the injuries are lacerations and according to the eye-witnesses, some of the vital injuries could have been incised injuries. There are so many omissions pointed out in the statements of the eye-witnesses which have been accepted by the investigating Officer. We have discussed the medical evidence also. According to the doctor, most of the injuries are lacerations and according to the eye-witnesses, some of the vital injuries could have been incised injuries. We are not sure whether any injury was caused by the bill hook and if any injury was caused by bill hook, was it caused by the blunt side of the weapon or sharp edge of the weapon. In our view, there are inconsistencies between the ocular testimony and medical evidence. In this connection reference can be made to a judgment of the supreme Court reported in Bhola Singh v. State of Punjab, 1999 (1) ALT (Crl.) 45 (SC ). In Para 6 the Supreme Court held:"as was done before the Courts below, it was contended before us that injuries suffered by the deceased Saun Singh were from blunt weapon as indicated by the post-mortem report and the same could not have been inflicted with Gandasa and, as such there is no good reason to hold that didar Singh and Kartar Singh witnessed the occurrence. We have carefully gone through the evidence of Kartar Singh (P. W. 1) and didar Singh (P. W. 2), the two eye-witnesses. If they had really witnessed the occurrence as had taken place, they would have certainly described the weapons used in causing injuries to the deceased, Saun Singh, leading to his death. It is highly improbable and unlikely that when the accused armed with sharp weapons like Gandasa and Ghop had used only the blunt edged side and not the sharp edged side of the said weapons. We are convinced that these two eye-witnesses had set out this version only to fit in what had been found in the post-mortem report. The normal way in which a gandasa and Ghop could be used was only from the sharp edged side and not from the blunt edged side. Therefore, it is highly unlikely that the two eye-witnesses P. W. 1 and P. W. 2 could have seen the incident as had taken place. It gives rise to serious doubt as to their presence at the time of incident. Therefore, it is highly unlikely that the two eye-witnesses P. W. 1 and P. W. 2 could have seen the incident as had taken place. It gives rise to serious doubt as to their presence at the time of incident. The Trial Court and the High court did not duly appreciate this aspect of the matter and, therefore, we are of the view that there is an error in this regard. Hence, we accept the case as set forth on behalf of the appellants. We allow this appeal, set aside the conviction passed by the Trial court as confirmed by the High Court and set him at liberty. " ( 22 ) RELIANCE can also be placed on a judgment of the Supreme Court reported in hallu and others v. State of Madhya pradesh, AIR 1974 SC 1936 . In Para 11 the Supreme Court held:"the post-mortem report prepared by dr. . N. Jain shows that on the body of Jagdeo were found three bruises and a hematoma. On the body of Padum were found four lacerated wounds and two bruises. According to the eye-witnesses, the two men were attacked with lathis, spears and axes but that clearly stands falsified by the medical evidence. Not one of the injuries found on the person of Jagdeo and Padum could be caused by a spear or an axe. The High court, however, refused to attach any importance to this respect 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. " According to the High Court, axes and spears may have been used from the blunt side and therefore the evidence of the eye-witnesses could safely be accepted. 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. " ( 23 ) THEREFORE there are reasonable doubts to believe whether the eye-witnesses were present at the place of occurrence or not and whether the occurrence took place at 2. " ( 23 ) THEREFORE there are reasonable doubts to believe whether the eye-witnesses were present at the place of occurrence or not and whether the occurrence took place at 2. 15 p. m. or not. As such benefit of doubt should have gone to the accused. ( 24 ) SINCE we disbelieved the presence of eye-witnesses at the place of occurrence, the dying declaration which was pressed into service through P. W. 3 can also not be relied upon. There are inherent defects to believe the dying declaration. P. W. 3 is the person who reached the place of occurrence after half an hour. Even according to the alleged eye-witnesses, before that the wife of the deceased was present at the scene of occurrence, but the deceased did not tell anything to her, he waited for half an hour and just before his death, he intimated his daughter (P. W. 3) as to what had happened. This is also unbelievable. ( 25 ) LEARNED Public Prosecutor has, however, submitted that if there is a variation between the medical evidence and ocular evidence, the Court must rely upon the ocular evidence. He relies on a judgment of the Supreme Court reported in State of karnataka v. Papanaika and others, 2005 scc (Cri.) 104. In this case there was no problem of any variation between the ocular evidence and medical evidence because the supreme Court held that when there was inconsistency between the ocular testimony and medical evidence, then the ocular evidence should not be discarded unless it is found that the medical evidence totally improbablises the ocular evidence. ( 26 ) FOR the reasons given hereinabove, we feel that benefit of doubt should have gone to the accused. The appeal is accordingly allowed, the conviction and sentence passed by the Trial Court are set aside and the accused is acquitted. Fine, if paid, shall be refunded. He shall be released forthwith from custody, if not required in any other cases.