JUDGMENT I.A. Ansari, J. 1. By the judgment and older, dated 18-5-2006, passed, in Sessions Case No. 148(N)/2005, the Additional Sessions Judge (Ad-hoc). Hojai, has convicted the accused-appellant No. 2. namely, Fulen Chauhan, under Section 304 (Fart I) IPC and sentenced him to undergo rigorous imprisonment for seven years with a line of Rs. 2,000/- and, in default of payment of line, to undergo simple imprisonment for a period of sixty days. By the judgment and order aforementioned, the accused appellant No. 1, namely, Harilal Chauhan, stands convicted under Section 523, IPC and sentenced to suffer simple imprisonment for a period of three months. 2. I have heard Mr. J.M. Choudhury, learned senior counsel, for the accused-appellants, and Mr. B.S. Sinha, learned Additional Public Prosecutor, Assam. 3. The case of the prosecution, in brief, may be described as follows: On 18-6-2003, at about 6.00 a.m. while Abdul Aziz (since deceased) was proceeding on a path, in their village, the accused. Sumer Chauhan, Harilal Chauhan, Fulen Chauhan, Kanatlal Chauhan and Shyamlal Chauhan, restrained him and assaulted him by dao, spade and other weapons. On hiillah being raised, Abdul Aziz's brother, Abdul Rafique, who was working in a nearby paddy field, saw Abdul Aziz being assaulted by the accused aforementioned. Abdul Rafique came rushing to the place of occurrence and when he was about to lift injured Aziz, who was lying on the ground. Rafique too was assaulted by accused Sumer Chauhan and Harilal Chauhan. Both the injured were taken to hospital, but before injured Abdul Aziz could reach the hospital, he succumbed to his injuries. Injured Abdul Rafique remained under treatment, at the hospital, tor-some time. An FIR was lodged by Behrul Islam, a relative of the Injured, and, on completion of investigation, police laid charge-sheet against accused Sumer Chauhan. Harilal Chauhan, Fulen Chauhan, Kanailal Chauhan and Shyamlal Chauhan under Sections 147/148/341/326/302/149, IPC. 4. In support of their case, prosecution examined altogether six witnesses. The accused were also examined under Section 313, Cr.P.C. and in their examination afore mentioned, the accused denied that they had committed the offences alleged to have been committed by them. Harilal Chauhan, Fulen Chauhan, Kanailal Chauhan and Shyamlal Chauhan under Sections 147/148/341/326/302/149, IPC. 4. In support of their case, prosecution examined altogether six witnesses. The accused were also examined under Section 313, Cr.P.C. and in their examination afore mentioned, the accused denied that they had committed the offences alleged to have been committed by them. The defence also adduced evidence by examining one witness, the case of the defence being, in brief, thus : While accused Fulen Chauhan and Harilal Chauhan were proceeding on their village path, they were assaulted, with the help of deadly weapons, by Mujibur Rahman, Intazul, Rofik, Iman Ali and Barek Ali and were seriously injured. As regards this occurrence, an FIR was lodged by accused Sumer Chauhan before the filing of the FIR, which gave rise to the present case. Both the cases were investigated and. on completion of investigation, police filed charge-sheets in both the cases. By separate judgment and order, the accused of the cross-case were all convicted under Section 341, IPC and accused Rafique (P.W. 2) was convicted under Sections 323, IPC too. 5. On conclusion of the trial, the learned trial Court, having found no material against accused Kanailal. Shyamlal and Sumer Cbouhan, acquitted them, but having found Fulen (accused-appellant No. 2) and Harilal (accused-appellant No. 1) guilty of offences under Section 323 and under Section304(Part-I) IPC respectively, convicted the two accused-appellants accordingly and passed sentences against, them as already mentioned hereinabove. Aggrieved by their conviction and the sentences passed against them, both these accused have preferred the present, appeal. 6. As already Indicated above, the prosecution examined as many as six witnesses. Out of the witnesses, so examined, P.W. 6 is the doctor, who had conducted post-mortem examination on Abdul Aziz's dead body and found as follows: (i). One sharp cut wound 2" × 1/2" × 1" in size over the Rt. Parietal region near midlines. (ii) One sharp cut wound lies obliquely over the occipital region measuring 1/2" × 1/2 × 1". (iii) Abrasion over Rt. Shoulder 2" × 1/4". (iv) Cut wound 4" × 1/4" × 1/4" in the wrist on the backside. 7. From the evidence given by P.W. 6, doctor, it becomes clear that the injuries sustained on the parietal and also occipital region were sufficient to cause death of a person in the ordinary course of nature. (iii) Abrasion over Rt. Shoulder 2" × 1/4". (iv) Cut wound 4" × 1/4" × 1/4" in the wrist on the backside. 7. From the evidence given by P.W. 6, doctor, it becomes clear that the injuries sustained on the parietal and also occipital region were sufficient to cause death of a person in the ordinary course of nature. Nothing has been elicited from the cross-examination of P.W. 6 to show that what he had deposed was untrue or incorrect. 8. Bearing in mind what is indicated above, when I turn to the evidence of P.W. 1 notice that according to his evidence, while he was cutting grass for his cows, he heard liullah and saw accused Fulen assaulting Aziz by means of a spade and accused Sumer assaulting Abdul Aziz by means of a Lathi and when he (P.W.I) reached the place of occurrence, tie found Aziz tying dead, in his cross-examination, however. P.W. 1 has de posed that before he reached the place of occurrence, ail the accused had run away. The evidence, so given by P.W. 1, is completely contradicted by his previous statement recorded by the police inasmuch as his clear statement before the police was that he himself had not seen the occurrence and that he had come to know about the occurrence from the others. The learned trial Court, 1 may point out, completely disbelieved this witness and I see no reason to take a view different from what the learned trial Court has taken with regard to his evidence of this witness. It is, therefore, clear that the evidence of P.W. 1, who has lodged the FIR, does not at all help he case of the prosecution. 9. When I turn to the evidence of P.W. 2 (Abdul Rafique), what I note is that according to this witness, on the day of the occurrence, when he was working in his field, he heard quarrel taking place in front of the house of their village headman and he noticed accused Fulen assaulting Aziz, while other accused persons were present there with accused Fulen. It is in the evidence of P.W. 2 that he went to the place of occurrence to bring injured Abdul Aziz, who was lying on the ground, and when he was about to lift injured Aziz, accused Sumer Chauhan assaulted him from behind and accused Harilal assaulted him on his leg and hand by means of a spade. It is also in the evidence of P.W. 2 that on being so assaulted, he fell down on the ground and, thereafter, both he (P.W. 2) and injured Abdul Aziz were taken to the hospital, but Aziz died. 9A. Notwithstanding the fact that P.W. 2 asserted, in his examination-in-chief, that accused Sumer Chauhan and accused Harilal Chauhan had assaulted him, he has conceded, in his cross-examination, that he had not noticed as to who had assaulted him. In fact, the investigating officer has also proved that this witness (P.W. 2) had not slated, in his statement recorded under Section 161, Cr.P.C. that Sumer had assaulted him from behind and/or that accused Harilal had assaulted him on the leg and hand by means of a spade. 10. What is also of immense importance to note, while considering the evidence of P.W. 2, is that he has deposed, in his cross-examination, that he reached the place of occurrence after the assault on Aziz had ceased and that lie was the one, who had arrived first at the place of occurrence, and, thereafter, his other co-villagers came there. In his cross-examination, P.W. 2 has. however, admitted that he had seen Fulen and Harilal in the hospital. This apart, there has been no dispute that both accused Fulen Chauhan and Harilal Chauhan had sustained injuries and were treated at the hospital. How they had sustained injuries is. however, not explained by the prosecution witnesses, it is in the backdrop of this fact that the defence case that they were assaulted by Abdul Aziz and his party, which included Rafique, needs to be considered. In this regard, it is note-worthy that in his statement made before the police. P.W. 2 had claimed that he (P.W. 2) had been assaulted, first, by the accused and then Aziz was assaulted by them. In this regard, it is note-worthy that in his statement made before the police. P.W. 2 had claimed that he (P.W. 2) had been assaulted, first, by the accused and then Aziz was assaulted by them. The previous statement so given by P.W. 2 completely belies, if I may reiterate, the evidence given by P.W. 2 that he had, while working in a paddy field, heard a quarrel near the house of their village heanman and noticed the accused-appellant. Fulen. assaulting Abdul Aziz and that when he (P.W. 2) came running to the place of occurrence and tried to lift the injured Aziz, then, he (P.W. 2) too was assaulted by the accused. The evidence given by P.W. 2 is, thus, wholly unbelievable and unsafe to place reliance upon. 10A. When I come to the evidence of P.W. 4 (Eman Ali), I find that according to this witness, when he was standing on the road, he saw Aziz and Intazur going to a shop and after a little while, he heard hullah and was told by Baharul (P.W. 1) that there was a marpit (i.e. mutual assault), whereupon he went to the place of occurrence and saw lathi in the hands of accused Sumer, spade in the hands of Harilal, dao in the hands of accused Fulen and pieces of bamboo in the hands of accused Kanailal and Subhas. P.W. 4 has also deposed that he saw Sumer and Aziz assaulting Aziz and Rafique. What is, however, of utmost importance to note, while considering the evidence given by P.W. 4, is that his previous statement, recorded by the police, he (P.W. 4) had, nowhere, stated that he had seen Aziz and Rafique being assaulted. This apart, the evidence of P.W. 2, as discussed above, shows that P.W. 2 was the first one, who had reached the place of occurrence, and when P.W. 2's evidence shows that before he had reached the place of occurrence, assault on Aziz had ceased, it is logical to infer that P.W. 4, who had, admittedly, arrived at the place of occurrence later than P.W. 2, could not have seen assault on Aziz or Rafique, particularly, when the evidence of P.W. 4 is that he came to the place of occurrence after he had already been told that the marpit (mutual assault) had taken place. Considered thus, it is clear that the learned trial Court has rightly rejected the evidence of this witness (P.W. 4) too as unbelievable and unsafe to place reliance upon. 11. The above discussion of the evidence on record leaves me with the evidence of P.W. 3. This witness's evidence is that at the time of the occurrence, he was washing his face, he heard hullah and saw a marpit (i.e. mutual assault) between the two paries, but he did not go to the place of occurrence and that, later on, he came to know that one Rafique had got injured and a Muslim man had been killed. P.W. 3 has clearly deposed that he did not know as to who had assaulted Rafique nor could he say as to why they had been fighting. When the attention of P.W. 3 was drawn to his statement made before the Investigating Officer to the effect that he had claimed before the police to have seen Rafique and Aziz armed with dao, P.W. 3 merely denied that he had made such a statement. The Investigating Officer has, however, proved this contradiction. The evidence of P.W. 4 too, therefore, does not, as indicated hereinbefore, inspire confidence. 12. What emerges from the above discussion is that none of the prosecution witnesses has withstood the test of cross-examination. This apart, the two appellants have, admittedly, not been found to have acted in furtherance of their common intention or in prosecution of a common object. In such circumstances, it was the bounden duty of the learned trial Court to scan the evidence on record and ascertain if the evidence implicating the accused-appellants was sufficient to warrant their conviction. While considering this aspect of the case, it is important to bear in mind that the learned trial Court's clear finding is that Aziz and Rafique were the aggressors. It is also the unchallenged finding of the learned trial Court that though accused Sumer and Fulen had sustained injuries, no explanation had been offered by the prosecution as to how these two accused had sustained injuries nor is there any plausible explanation discernible, in this regard, from the evidence on record. In such circumstances, it is clear that there is no cogent, clear and positive evidence pointing to the assault on Aziz and Rafique at the hands of the two appellants. 13. In such circumstances, it is clear that there is no cogent, clear and positive evidence pointing to the assault on Aziz and Rafique at the hands of the two appellants. 13. In the backdrop of what has been indicated above, when one takes note of the medical evidence on record, what clearly transpires is that there were as many as four injuries found on Aziz's dead body and it is not discernible from the evidence on record as to which injuries, if any, were caused on Aziz by the accused-appellants. Situated thus, the accused-appellant No. 2 could not have been held responsible for the injuries caused to Aziz resulting into his death. 14. Coupled with the above, it is also worth pointing out that the evidence adduced by the prosecution is an admixture of half-truth and untruth and the truth, if any, is so inextricably mixed with falsehood that it has become impossible to disengage the truth, if any, from falsehood. 15. Because of what have been discussed and pointed out above, it becomes transparent that the prosecution has not given to the Court the true version of the occurrence and in the face of such uncertain, unconvincing and inadequate evidence on record, the conviction of the two appellants could not have been founded. At any rate, in the facts and circumstances of the present case, the present appellants ought to have been given, at least, benefit of doubt. 16. In the result and for the reasons discussed above, this appeal succeeds. The impugned judgment and order, dated 18-5-2006, aforementioned are hereby set aside. Both the appellants are held not guilty of the offences for which they stand convicted and they are acquitted of the same under benefit of doubt. The accused-appellant No. 1 is already on bail, he need not surrender to his bail bond, his bail bond is cancelled and his sureties stand discharged. So far as the accused-appellant No. 2 is concerned, he be set at liberty forthwith unless he is required to be detained in connection with any other case. 17. Send back the LC Rs.