JUDGMENT P.G. Agarwal, J. 1. Criminal Appeal No. 405/02 and Criminal Appeal No. 5/03 have arisen out of Sessions Case No. 9(S-S)/2001 whereby the Addl. Sessions Judge No. 2 at Sibsagar by the Impugned Judgment dated 01.10.02 convicted the three accused appellants Under Section 302 r/W Section 34 IPC and sentenced each of them to imprisonment for life and to pay a fine of Rs. 5000/- each, in default, further imprisonment for 1 year each. 2. Crl. Appl. No. 405/02 has been preferred by the accused appellants Bipin Dihingia and Hemanta Arandhara as well as the Crl. Appl. No. 5/03 has been filed by the other accused Jiba Gogoi. 3. On 30th July, 1995, Chandreswar Hatimuria (PW2) lodged a written FIR (Ext. 2) to the effect that on the previous day around 5 P.M. while his son-in-law Biren Phukan was cutting an "Ou Tenga" tree, the three accused appellants (named in the FIR) assaulted him and killed him by hitting him with dao, spear etc. Police made investigation and submitted charge sheet against the accused persons and during trial prosecution examined as many as 11 witnesses. Defence has not adduced any evidence. 4. PW-3 Dr. Ripun Borpujari held autopsy on the dead body of the deceased Biren Phukan and found as follows: Injuries: 1.2" x 1/2"' x 2" deep incised wound on the midbrow extending from medial angle of right eye, obliquely into the frontal bone cutting upper part of the nosle brain. 2. Five penetrating wound just over the pericardium, each remaining at 1" apart. All wounds were deep to the extent of 2". Size of the wounds are 1" diameter oval shape. All injuries were ante mortem and homicidal in nature. Thorax: Walls and cartiages- Left chest punctured into 5. Around the pericardium. On opening the sternia 300 cc of clotted blood was found beneath the bone. Pleura: Found punctured in all those five points. Larynx & Trachese: Contained blood mixed clotted. Right lung was intact. Pericardium: Punctured in three points in anterior respect with condition around each punctured bone. Heart was punctured in three areas on the anterior aspect. Both sides chambers are empty. All other organs are healthy. Disease ire deformity - nil. Opinion: In my opinion the injury could be caused by Pocha and axe, M. Ext. 1 and M. Ext. 2. 5. Smt. Meena Phukan (PW 1) is the widow of the deceased. Heart was punctured in three areas on the anterior aspect. Both sides chambers are empty. All other organs are healthy. Disease ire deformity - nil. Opinion: In my opinion the injury could be caused by Pocha and axe, M. Ext. 1 and M. Ext. 2. 5. Smt. Meena Phukan (PW 1) is the widow of the deceased. She has deposed that on the date of occurrence while she along with the deceased Biren Phukan were uprooting paddy seedlings from their seedling bed, she asked her husband to collect some fire woods for the kitchen whereupon her husband brought an axe from the house of neighbour Manoj Gogoi. The husband started cutting an "Ou Tenga" tree, which belonged to them. The said tree was situated on the boundary of the seedling paddy. In the meantime, Bipin Dihingia hurled a pocha (Spear) and hit her husband on the back and passed through the body to front side. Her husband fell down whereupon the other accused Tepuram started hacking her husband with a dao. Later on Jiba Gogoi hacked her husband with an axe. PW 3 shouted for help but no neighbour turned up. Subsequently her husband was taken to hospital. But on the way the injured succumbed to his injuries. 6. Chandreswar (PW 2) is the father of PW 1 and he came to the place of occurrence on hearing shouts of his daughter and found the deceased lying with bleeding injuries. With the help of others they took the deceased to hospital but before they reached the hospital the injured died. He was reported by PW 1 that the accused Bipin Dihingia had assaulted with a pocha, accused Jiba Gogoi with an axe and the other accused Tepuram with a dao. PW 2 thereafter lodged the FIR. 7. Biren Hatimuria (PW5) is the younger brother of PW 1 and while he was working in the field he heard shouts from his sister and came to the place of occurrence and saw his brother-in-law lying in the field. He was informed about the assault by the three accused persons by PW1. 8. Sri Mathram Chiring Phukan (PW 6) and Sri Manoj Kumar Gogoi( PW 7) are the co-villagers who came to the place of occurrence on the next day and they have deposed about the killing of the deceased. He was informed about the assault by the three accused persons by PW1. 8. Sri Mathram Chiring Phukan (PW 6) and Sri Manoj Kumar Gogoi( PW 7) are the co-villagers who came to the place of occurrence on the next day and they have deposed about the killing of the deceased. They had seen the cut tree at the place of occurrence also but they did not witness the occurrence. PW 7, however, supports the statement of PW 1 that on that day the deceased had borrowed an axe from him. 9. Sri Deukon Dihingia (PW 8) and Sri Dilip Arandhara (PW 9) are the witnesses and they have also deposed about the incident only. Smt. Anjali Dihingia (PW 10) was declared hostile by the prosecution. Sri Jatin Ch. Bora (PW 11) is the Investigating Police Officer. Thus we find that the entire prosecution case rests on the testimony of the sole eyewitness Meena Phukan (PW 1). 10. Mr. R.P. Kakati, learned Counsel appearing for accused Bipin Dihingia and Hemanta Arandhara has submitted from the statement of PW 1 that the pocha hurled by Bipin Dihingia and hit on the back and passed through the chest has not been supported by the medical evidence of PW 3 as Doctor did not find any such injury on the back. From the medical evidence as quoted above, we find that the Doctor did not find any injury caused by a pocha on the left chest which was punctured in five parts above the pericardium. The left lung punctured in two parts and heart punctured in three areas. Although there was no injury on the back there was no doubt about injury on the chest as claimed by PW 1. She is a village woman and the above description of the injury by her and discrepancy arising therein cannot take away the evidentiary value of the deposition when the evidence has been corroborated by the medical evidence in substance. After assault by Bipin Dihingia the next injury was caused by accused Tepuram@ Hemanta and the last assault was made by Jiba Gogoi. 11. The learned Counsel for accused Jiba Gogoi has drawn our attention to the contention brought on record regarding alleged assault on the deceased by accused Jiba Gogoi. Likewise, the contradiction was brought on record as regards PW's claim that he was reported about the assault by the accused persons. 11. The learned Counsel for accused Jiba Gogoi has drawn our attention to the contention brought on record regarding alleged assault on the deceased by accused Jiba Gogoi. Likewise, the contradiction was brought on record as regards PW's claim that he was reported about the assault by the accused persons. We find that the contradictions were suggested to the witnesses and they were recorded by the learned trial Judge and thereafter these are proved through the Investigating Police Officer. We are, however, surprised that the learned Counsel defending the accused, the learned Public Prosecutor, Investigating Police Officer as well as the Trial Judge, all acted mechanically without applying their mind and without looking to the record. The contradiction was proved through Investigating Officer. We have checked up the case diary that the contradictory statement of PW 1 regarding assault caused by Jiba Gogoi was wrongly recorded. The witness did state before Investigating Officer (PW 11) that accused Jiba Gogoi had assaulted her husband. Likewise, PW 2 has also stated about the reporting as regards the assault caused by Bipin and Tepuram. The name of Jiba Gogoi is missing. The Trial Judge is required to involve in the trial and he should take care of the alleged/suggested contradictions existed and the suggestions put to the witness unless the same is verified with the records. We, therefore, hold that there is no material contradiction in the evidence of PW 1. Mr. Kakati, learned Counsel, on the other hand, submitted that PW 1 might not have seen the incident of assault as she was far away from the place of occurrence. We have perused the evidence closely and find that the seedling paddy was situated on the bari land itself and not in the field and the "O Tenga" tree was also situated in the said plot of land situated near the seedling paddy. 12. Now coming to the involvement of accused appellant in the above occurrence we find that PW 1 was attributed assault by pocha by accused Bipin Dihingia. The Doctor also found an injury caused by pocha on the person of the deceased and as such the Trial Court rightly held that Bipin Dihingia is the author of the said injury. As stated above, there are only two injuries on the person of the deceased and other injury was an incised wound extended to the frontal bone. 13. Material Ext. As stated above, there are only two injuries on the person of the deceased and other injury was an incised wound extended to the frontal bone. 13. Material Ext. 2 is the axe seized by the police from the place of occurrence and it admittedly belonged to PW 7 Manoj Kr. Gogoi and it was borrowed by deceased for cutting the tree. Thus Material Ext.-2 may not be a weapon of assault as there is no evidence to show that the axe of the accused is used by the accused to assault the deceased. PW 1 has stated that accused Tepuram @ Hemanta hacked her husband with a dao whereas Jiba Gogoi assaulted with an axe. She has also stated that injury No. 1 may be caused by an axe. This is opinion evidence only and considering the nature of injury the same can be caused by heavy sharp cutting weapon such as dao. The question, therefore, arises is who had caused the injury No. 1? 14. So far the accused Jiba Gogoi is concerned, we find that PW 1 had stated that accused Bipin Dihingia and Hemanta Arandhara left the place of occurrence taking the pocha and dao along with them. Thereafter accused Jiba Gogoi came and assaulted her husband and entered into the house of the accused Bipin. The witness, however, states that after sometime Jiba Gogoi came out of the house and she requested Jiba Gogoi to help her in lifting her husband but accused Jiba Gogoi refused to help. Usually, the alleged request by PW 1 was against the human conduct, as the wife did seek help of the assailant of her husband. Moreover, we find that the name of Jiba Gogoi was not reported to PW 2 as stated above and the contradiction has been rightly recorded. Moreover, there were only two injuries, which were caused by the two other accused persons. There was no third injury. Hence, there is a nagging doubt that accused Jiba Gogoi did not cause any assault but he was subsequently implicated only because he refused to give assistance or held when asked for by PW 1. 15. Considering the medical evidence, no injury can be attributed to accused Jiba Gogoi and the two injuries found on the person of the deceased were caused by accused Bipin and Hemanta. 15. Considering the medical evidence, no injury can be attributed to accused Jiba Gogoi and the two injuries found on the person of the deceased were caused by accused Bipin and Hemanta. As such, we hold that accused appellant Jiba Gogoi is entitled to benefit of doubt. 16. So far the appellant Bipin Dihingia and Hemanta are concerned, the evidence of PW-1 is very specific and clear. 17. The facts of the present case are somehow identical with that in the case of K. Ramakrishnan Unnithan v. State of Kerala (1999) 2 Crimes 19 wherein the Apex Court held "in a crime case, if the eyewitness falsely implicate one of the accused persons, the evidence of such eyewitness cannot be discarded against the other accused persons." A similar view was taken by the Apex Court in the case of Suresh Singh and Ors. v. State of Haryana (1999) 2 Crimes 42 . 18. The law is more or less well settled that conviction in case of murder can be based on the evidence of a solitary eyewitness, as it is the quality and not the quantity, which matters, PW-1 has no doubt implicated Jiba Gogoi unnecessarily but that in itself is not sufficient to throw out her entire testimony overboard. The evidence against the appellant Bipin and Tepuram remains untainted and specific. 19. It was fully supported by the medical evidence on record and as such we hold that accused Bipin and Tepuram in furtherance of their common intention assaulted and killed the deceased. 20. In the present case, no plea of right of private defence of property was raised and there is no material to that effect. Defence nowhere claimed that "Ou Tenga" which was cut by the deceased for carrying fire woods belonged to them and on the other hand the specific evidence that the said tree belonged to the deceased and if he was cutting the said tree for the purpose of fire wood no right had accrued on the accused persons to kill the deceased. 21. In view of the aforesaid, Criminal Appeal No. 5/03 filed by Jiba Gogoi is allowed and the order of conviction and sentence is set aside. He is acquitted and set at liberty forthwith. 22. The Criminal Appeal No. 405/02 is Sevoid of merit and accordingly dismissed. Send down the records.