JUDGMENT S.P. KUKDAY. J :- Both these criminal appeals are directed against judgment and order dated 21-8-2002 passed by 1st Ad-hoc Additional Sessions Judge. Jalgao in Sessions Case No. 134/2001 convicting all the four accused for having committed murder of Kantilal Bhagchand Sharma of jalgao. The accused are sentenced to suffer rigorous imprisonment for life and to pay fine of Rs. 500/each in default to suffer further imprisonment for two months. Rustom (accused No. 1). Nazir (accused No.3) and Subhan (accused No.4) have filed Criminal Appeal No. 524/2002 and Hafiz (accused No.2) has filed Criminal Appeal No. 564/2002, challenging order of conviction and sentence dated 21-8-2002. Both these appeals are disposed off by common order. As the accused have filed two different appeals, they are referred to in their original capacity as accused. 2. The prosecution case stated in brief is that Kantilal Bhagchand Sharma (deceased) owned agricultural lands at Mamurabad and was living in pardeshi Wada (building) at Mamurabad. He was a rowdy and was engaged in the business of selling illicit liquor at Mamurabad. Later on Kantilal shifted his residence to jalgao and was living near Mamurabad Naka but had continued his business of selling illicit liquor and running gambling den at Mamurabad. Sk. Dilawar (P.W. 4) and Shabbirkhan were his friends. Mulayambi (P.W. 3) was working at the field of the deceased since prior to her marriage. She had divorced her pervious husband Kadar and had married Sk. Bismilla of village Korpavli.During the relevant period she was living at Mamurabad with her husband and sons Shakil (P.W.8) and Hanif. Rustom (accused No. 1) and Nazir (accused No. 3) are her real brothers. Subhan (accused No.4) is her maternal cousin and Hafiz (accused No.2) is her nephew from maternal side. Her relations with her brothers who were living near her house were strained. The deceased used to visit her house whenever he came to Mamurabad. 3. On 28th April, 2001, Bismilla had been to his native place Korpavli for attending a marriage. As it was summer, Mulayambi and her sons were sleeping in the courtyard of her house. On that night at about 2.00 O, clock, the deceased came to her house from some fair in drunken condition and insisted on sleeping there as he was not in a position to drive motor cycle. As it was summer, Mulayambi and her sons were sleeping in the courtyard of her house. On that night at about 2.00 O, clock, the deceased came to her house from some fair in drunken condition and insisted on sleeping there as he was not in a position to drive motor cycle. Mulayambi allowed him to sleep on iron cot by the side of her son Shakil (P.W. 8). The deceased told her that he would leave at 4.00 O, clock in the morning. In the morning at about 6.00 O, clock, Mulayambi tried to wake up the deceased but he did not get up. She then started the daily routine of preparing Tiffin as they were to leave for work. At about 7.30 on hearing noise of a fracas. Mulayambi came out and saw accused assaulting the deceased with axe, sticks and fire wood. Hafiz (accused No.2) was inflicting blows on the head and back of the deceased by an axe. Rustom (accused No. 1) and Nazir (accused No.3) were inflicting stick blows over head and back of the deceased and Subhan (accused No.4) was dealing blows on the head of deceased with fire wood with such a ferocity that the wooden log was broken in two pieces. The deceased had sustained bleeding injuries. When she tried to resist, her brothers Nazir (accused No.3) and (Rustom (accused No.2) inflicted stick blows on her waist. After the assault, the assailants rushed towards Dilawar (P. W. 4) who was standing in the courtyard of his house. Dilawar ran to the office of Police Patil which is at the village in Grampanchayat Building. On reaching the office Dilawar informed Madhavrao Ragho Patil (P.W.9) that the accused had assaulted Kantilal and are coming after him. Police Patil Madhavrao gave shelter to Dilawar in his office and came out. On their arrival, all the accused confessed that they have committed murder of Kantilal and asked Madhavrao to hand them over to the Police. Madhavrao confined the accused in Gram Panchayat office on the first floor of the building and conveyed information regarding the incident to Jalgao Taluka police station on telephone. Head Constable Vishwas Patil who was performing duty as P. S. O. relayed this information to P. I. Ramesh Manohar Patil (P.W.12). 4. Sister of Chotu Dhansing Patil (P. W. 2) was living with the deceased at Jalgao as his mistress. Head Constable Vishwas Patil who was performing duty as P. S. O. relayed this information to P. I. Ramesh Manohar Patil (P.W.12). 4. Sister of Chotu Dhansing Patil (P. W. 2) was living with the deceased at Jalgao as his mistress. Chotu was also living with them and was plying autorickshaw. Chotu used to visit Awachit Hanuman on every Saturday. On the day of the incident his sister asked Chotu to search for her husband at Mamurabad on his way to the temple and send him back to the house. Chotu took passengers for Idgao and stopped near Pan stall at Mamurabad on his way. He saw crowd near the house of Mulayambi. When he went there, Chotu saw accused assaulting his brother-in-law. He got afraid and returned to Jalgao. At Jalgao he conveyed the information to Vijay (P.W.1) who is brother of the deceased. Vijay went to the scene of occurrence. By that time, P.I. Patil had come there. He took Vijay to the police station and recorded his complaint (Ex. 12.) on the basis of this F. I. R. offence punishable under sections 302, 323, 504, 506 r/w 34 of Indian Penal Code came to be registered against the appellants. 5. After registration of the offence the Investigating Officer returned to the scene of occurrence. After holding inquest on the dead body (Ex.14) the investigating officer sent it for post-mortem. He then attached blood stained soil, control soil, two wooden rods, two plastic belts and a quilt from the scene of occurrence under Panchanama (Ex. 25). Accused were then arrested and their clothes stained with blood were attached under seizure memo (Ex. 48-51). 6. On 2-5-2001 Hafiz (accused No.2) made a confessional statement (Ex.39). Axe produced by him from his house was attached under seizure memo (Ex.40). On 3-5-2001 Nazir (accused No.3) and Rustom (accused No. I) made confessional statements (Exs. 41 and 43). Sticks produced by them from their house were attached under seizure memo (Exs. 42 and 44) Articles attached during the investigation were sent to Forensic Laboratory. Report of the Chemical Analyser (Ex. 57) disclosed that pant and shirt of Hafiz (accused No.2) and pant of Rustom (accused No.1) were stained with the blood of the deceased. Shirt of Rustom and stick produced by Nazir were stained with human blood. On completion of the investigation the accused were charge-sheeted. 7. Report of the Chemical Analyser (Ex. 57) disclosed that pant and shirt of Hafiz (accused No.2) and pant of Rustom (accused No.1) were stained with the blood of the deceased. Shirt of Rustom and stick produced by Nazir were stained with human blood. On completion of the investigation the accused were charge-sheeted. 7. At the trial the accused adopted defence of total denial and propounded that on account of strained relations between them, Mulayambi, who had extramarital relations with the deceased, had falsely implicated them. The accused have not examined witnesses in their defence. 8. In support of its case the prosecution examined 12 witnesses. Ravindra Chavan (P. W. 6) witness to seizure of clothes of the deceased under seizure memo (Ex. 15); Arifoddin Shaikh (P.W.7) witness to the discovery of axe and sticks on the basis of confessional statements of Hafiz (accused No.2) Nazir (accused No.3) and Rustom (accused No. I) under memorandum and seizure memo (Exs. 39-44) : Bapu Salunkhe (P.W. 10) witness to arrest panchanama (Exs. 48-51) and seizure of clothes of the accused have turned hostile. Rajesh Vyas (P. W. 5) has proved panchanama of the scene of occurrence (Ex.25). 9. The prosecution mainly relies on the evidence of three eye witnesses, namely Chotu (P. W. 2), Mulayambi (P.W. 3) and Dilawar (P.W. 4) Chotu is admittedly a chance witness. He is brother of the mistress of the deceased and was living with them at Jalgao. Chotu drives auto-rickshaw and usually visits Awachit Hanuman temple on Saturdays. On the day of occurrence his sister told him to search for her husband and send him back to the house. While going to the temple in auto-rickshaw, Chotu took four passengers for Idgao. On reaching, Mamurabad he stopped the auto-rickshaw near Pan stall. On getting down from the rickshaw he saw crowd near the house of Mulayambi. When he went there, he saw accused assaulting his brother-in-law with axe and sticks. Dilawar and Mulayambi were present there. Having seen the assault he got frightened. He went back to Jalgao and conveyed the information to brother of the deceased Vijay Sharma. During the cross-examination the witness conceded that he was not acquainted with Mulayambi, Dilawar and the accused and had seen them for the first time on that day. 10. Dilawar and Mulayambi were present there. Having seen the assault he got frightened. He went back to Jalgao and conveyed the information to brother of the deceased Vijay Sharma. During the cross-examination the witness conceded that he was not acquainted with Mulayambi, Dilawar and the accused and had seen them for the first time on that day. 10. Vijay Sharma (P.W.1) states that after getting information regarding the assault on his brother he went to Mamurabad and lodged report (Wx.12) with Jalgao Taluka Police Station. 11. Mulayambi is the star witness of the prosecution. She was working with the deceased since prior to her first marriage and had maintained relations with the deceased even after her second marriage. Mulayambi states that on the night of the occurrence the deceased came to her house at about 2.00 0' clock in the night from a fair on motor-cycle. He was dead drunk and was not in a position to drive the vehicle. She allowed the deceased to share cot with her son Shakil. In the morning she got up at about 6.00 O'clock and was preparing Tiffin for herself and her son as they were to go for work. At about 7.00 O'clock she heard some one shouting threats for launching an assault. She came out from the house with Shakil. They found accused approaching her house for assaulting the deceased. She thus, asked her son to go inside the house and went forward to resist the assailants. Subhan (accused No.4) dealt two stick blows on her waist. As a result she fell down. Hafiz (accused No.2) then dealt axe blows on the head and back of the deceased. Others dealt stick blows to the deceased. The deceased died on the spot. After assaulting the deceased, the assailants went towards Dilawar. During the cross-examination Mulayambi denied suggestions that she had extra-marital relations with the deceased in spite of the opposition by her brothers. At one place she conceded that Subhan merely assaulted her but in the next breath maintained that Subhan dealt blows on the head of the deceased with fire wood. She did not refer to her son Hanif. She mentioned that Shakil had come out from the house after she fell down to give her a hand for getting up. 12. Shakil (P. W. 8) stated that after hearing the threats he came out from the house with his mother. She did not refer to her son Hanif. She mentioned that Shakil had come out from the house after she fell down to give her a hand for getting up. 12. Shakil (P. W. 8) stated that after hearing the threats he came out from the house with his mother. They saw accused armed with axe and sticks advancing towards their house. His mother then pushed him inside the house and closed the door. During the cross-examination when he denied that the deceased used to visit his house and that relations between his mother and the accused were strained. The witness was thus, confronted with Portions A and B of his statement recorded under section 161, Criminal Procedure Code. 13. Shaikh Dilawar (P. W. 4) who is alleged to be another eye witness states that, at about 7.00 or 7.30 in the morning he heard threats being uttered near the house of Mulayambi. Thus, he went to the road in front of his house. He saw one person sleeping face down on the cot in front of the house of Mulayambi. Hafiz (accused No.2) dealt axe blows to him on the back of head and on the back. Others inflicted stick blows on the back of this person. The victim raised his head during the assault. Thus, he could identify him as Kantilal Sharma. After the assault, the accused saw him and came towards him saying that he had become arrogant because of the backing from the deceased. He thus, ran towards the office of Police Patil. On reaching there he informed the Police Patil that assailants of the deceased are coming after him. Police Patil Madhavrao (P. W. 9) gave him shelter in the office. Police Patil then took the accused to Police Station in Police Jeep and asked him to go. He then went to hospital at Jalgao. During the cross-examination Dilawar admitted that the deceased was a drunkard and was engaged in the business of selling country liquor. Dilawar first refused to admit that he was friend of the deceased but subsequently conceded this fact. The witness also conceded that the incident was witnessed by neighbours and the passers by. 14. During the cross-examination Dilawar admitted that the deceased was a drunkard and was engaged in the business of selling country liquor. Dilawar first refused to admit that he was friend of the deceased but subsequently conceded this fact. The witness also conceded that the incident was witnessed by neighbours and the passers by. 14. Madhavrao Ragho Patil (P. W. 9) the Police Patil of the village, states that on the day of the incident at about 7.15 or 7.30 in the morning Dilawar came to his office and told him that the accused had killed Kantilal and are coming after him to kill. He confined Dilawar in the office and came out. All the accused came there, confessed to have killed Kantilal and surrendered themselves for being handed over to the Police. He locked them in Grampanchayat office on the first floor of the same building and conveyed the information relating to the commission of the offence to Jalgao Taluka Police Station on telephone. After arrival of the Police the P.S. I. had taken all the accused in custody and took them to the Police station. During his cross-examination Police Patil admitted that he informed the Police that the accused confessed to have committed murder of the deceased. 15. The autopsy surgeon Dr. Suryakant Deshmukh (P.W.11) has proved post-mortem report (Ex.53). The external examination revealed that the deceased had sustained following injuries: 1. C. L. W. on left fronto-parietal region extending below left mastoid with fracture of the skull. Size of the injury was 10 x 1 x 1 inch. Brain matter was exposed. 2. L shaped C. L. W. behind injury No. 1 having inverted edges of the size 3" x 1" X 1/2". 3. C. L. W. behind right ear of the size 4" x 1" x 1". Three stab injury on the back. 4. Stab injury at D-6 level, 3" x 3" x 2". 5. Stab injury on left side, just above injury No.4, 3" x 1" x 2". 6. Stab injury in midline above injury No.5, 1" x 1/2" x 2". There was fracture of 6/7th ribs posteriorly on left side. The internal examination disclosed fracture of skull over left fronto parietal region. Brain matter was exposed and small pieces of brain matter had scattered through the wound. The stomach contained semi digested food with gases. All the injuries were ante mortem. There was fracture of 6/7th ribs posteriorly on left side. The internal examination disclosed fracture of skull over left fronto parietal region. Brain matter was exposed and small pieces of brain matter had scattered through the wound. The stomach contained semi digested food with gases. All the injuries were ante mortem. In the opinion of the autopsy surgeon the death was caused on account of coma due to head injury with multiple injuries. Viscera was preserved. The medical officer first attempted to support the prosecution by opining that stab injuries can be caused by an axe. However, during the cross-examination he conceded that the stab injuries can be caused by sharp pointed object and that having regard to the size of stab injuries they were probably inflicted by different weapons. He also conceded that if the victim is hit on the head while lying on iron cot, there would be corresponding injury on the other side of the head which in the present case was absent. Thus, in all probability the victim was standing during the course of the assault. 16. Investigating officer narrated the details of the investigation. During the cross-examination he stated that complainant Vijay Sharma met him at the scene of occurrence at 8.00 0' clock in the morning and he took the complainant to the Police Station for recording F.I.R. The witness further admitted that during the investigation it was found that Bismi1la, husband of Mulayambi was an eye witness and that Mulayambi had come to the Police Station on her own for giving her statement. The investigating officer further conceded that accused were not in captivity but were freely moving near the Grampanchayat when he took them in custody. 17. On consideration of the evidence, learned Trial Judge found that Chotu (P.W.2) did not know the accused as well as the eye witnesses. Thus, he could not have given their names while narrating the incident. The fact that conduct of the brother in law was not natural also weighed with the Trial Judge to come to the conclusion that he is a got up witness. The fact that Mulayambi was associated with the deceased and the deceased was regular visitor to her house led the Trial Judge to hold that she had sexual relationship with the deceased. The fact that Mulayambi was associated with the deceased and the deceased was regular visitor to her house led the Trial Judge to hold that she had sexual relationship with the deceased. Learned Judge however was impressed by the fact that there are no major inconsistencies in the evidence of the eye witnesses and that their evidence received corroboration from the ocular evidence of Shakil (P.W.8) and Madhavrao (P.W.9) in addition to the circumstantial evidence of finding of blood of the deceased on the pant and shirt of Hafiz (accused No.2), pant of Rustom (accused No. I) and that shirt of Rustom and stick produced by Nazir were stained with human blood. Impressed by this aspect, learned Trial Judge ignored inconsistency between ocular and medical evidence to hold that guilt of the accused was established by prosecution. In conformity with this finding the Trial Judge convicted the accused and sentenced them as stated earlier. 18. Learned counsel for appellants Shri R. N. Dhorde and Shri R. B. Raghuwanshi have extensively argued the matter. Main plank of their argument is the inconsistency of ocular testimony with the medical evidence and want of corroboration from independent witnesses. In support of their contention that in view of this inconsistency no reliance should have been placed on the evidence of the prosecution witness, learned counsel have cited decisions of the Apex Court in the matter of Purushottam and another Vs. State of Madhya Pradesh, AIR 1980 se 1873 and the decision of the Apex Court in the matter of Ram Narayan, Jagaar singh and another Vs. State of Punjab, A.IR 1975 se 1727. 19. On behalf of the Respondent-State learned APP Shri Jadhav supports the conviction of the appellants on the premise that ocular testimony substantiated by the circumstantial evidence of discovery does establish complicity of the appellants in commission of the offence. 20. It is not in dispute that the eye witnesses were confederates of the deceased. The principles of appreciation of evidence of partisan witnesses are by now well settled. Evidence of partisan witnesses cannot be thrown out merely on this ground. Their evidence is to be carefully assessed to ascertain its credibility. 20. It is not in dispute that the eye witnesses were confederates of the deceased. The principles of appreciation of evidence of partisan witnesses are by now well settled. Evidence of partisan witnesses cannot be thrown out merely on this ground. Their evidence is to be carefully assessed to ascertain its credibility. Factors such as likelihood of their presence at the time of occurrence, extent of their interest, animosity with the accused, corroboration from independent source or other circumstances firmly established, should be kept in mind at the time of evaluating testimony of partisan witnesses. In cases where the court finds that the prosecution has produced got up witness and the investigation is tainted, consistency of the testimony of partisan witnesses is not a sure guarantee of its truthfulness. In such cases the court has to be cautious and careful in evaluating the worth of the evidence of partisan witness. Similarly, in cases where there is a conflict between the ocular testimony and the medical evidence, it has to be borne in mind that the opinionative medical evidence will not override the ocular evidence if the discrepancy can be explained by any rational hypothesis. The oral evidence would get primacy if the inconsistency is minor and does not tend to falsify evidence of the eye witnesses which otherwise inspires confidence. To appreciate the dictum, we may refer to the decision of the Apex Court in State of M. P. Vs. Dharkole, (2004)13 SCC 308 wherein Their Lordships observed in para 8 that : "8. Coming to the plea that the medical evidence is at variance with ocular evidence, it has to be noted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses account which had to be tested independently and not treated as the "variable" keeping the medical evidence as the "constant", However, if the discrepancy is such as to improbabilise version of the incident given by witnesses, the court has to exercise its discretion to discard ocular evidence in appropriate cases. This aspect is high lighted in Ram Narayan Vs. State of Punjab, AIR 1975 se 1727. In that case referring to the inconsistency between ocular evidence and the medical evidence. This aspect is high lighted in Ram Narayan Vs. State of Punjab, AIR 1975 se 1727. In that case referring to the inconsistency between ocular evidence and the medical evidence. Their Lordships observed in para 14 of the report "Where the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence of the ballistic expert, this is a most fundamental defect in the prosecution case and unless reasonably explained it is sufficient to discredit the entire case. After referring to the decision in Mohinder Singh vs. State, AIR 1953 SC 415 . Their Lordships observed "It is obvious that where the direct evidence is not supported by the expert evidence, then the evidence is wanting in the most material part of the prosecution case and it would be difficult to convict the accused on the basis of such evidence. "Similar view is taken by the Supreme Court in Purushottam and another vs. State of Madhya Pradesh, AIR 1980 SC 1873 . Preferring the opinion of Dr. Jain that single injury cannot be caused by two simultaneous blows, to the ocular testimony, it is observed in para 13 of the report that "The version of P.W. 1 and P.W. 2 with regard to this vital fact was inherently improbable and intrinsically incredible. It could not be accepted in preference to the evidence of medical expert." 21. In the present case evidence of eye witnesses is contradicted by the medical evidence on two vital points. The first being the time of the occurrence and the second is improbability of injuries being caused by the weapons indicated by the eye witnesses and the manner of causing the injuries suffered by the deceased. It is rightly argued by learned counsels for the appellants that no independent witness is examined by the prosecution though according to the prosecution case several villagers and passers by witnessed the incident. No witness is examined to show that the incident took place at the time mentioned by Mulayambi and Dilawar. Both of them are admittedly interested witnesses. Mulayambi states that the incident took place at 7.00 a.m. Dilawar gives the time between 7.00 to 7.30 a. m. Chotu does not give the time of incident. Column 21 of the post-mortem report shows that there was semi digested food in the stomach of the deceased. Both of them are admittedly interested witnesses. Mulayambi states that the incident took place at 7.00 a.m. Dilawar gives the time between 7.00 to 7.30 a. m. Chotu does not give the time of incident. Column 21 of the post-mortem report shows that there was semi digested food in the stomach of the deceased. About six hours are required for digestion of the food in ordinary course. Presence of semi digested food shows that the death took place within 3 to 4 hours from the last meal. According to Mulayambi the deceased had come to her house at about 2.00 a. m. on that night. Thus, he must have consumed food prior to 2.00 a. m. These facts would show that the incident must have taken place sometime between 5.00 to 6.00 a. m. and not at 7.00 or 7.30 a.m. as suggested by the prosecution witnesses. It is true that contents of stomach may not always be sure guide to estimate time of death but it does provide a clue and can be considered in appropriate cases. Considering this aspect the Apex Court in Moti vs. State of U.P., observed in para 14 of the report: "14. It is rather surprising that the High Court should find this part of the medical evidence as being of no consequence at all. The High Court referring to this part of the medical evidence has observed: "In our opinion the stomach contents are not very material to determine the time of incident." We are of the considered opinion that this view of the High Court is wholly erroneous. It may be possible to contend that contents of the stomach may not always be an indicator of the time of death. But in a case where stomach is empty and the prosecution evidence is that the murder had taken place shortly after the deceased had his last meal, to say that the contents of the stomach have no material bearing on the determination of the time, in our opinion, is not acceptable. In the instant case, time of death being a material factor to verify the presence of the eyewitnesses, it was obligatory for the prosecution to have clarified the discrepancy between the medical evidence and the oral evidence. In the instant case, time of death being a material factor to verify the presence of the eyewitnesses, it was obligatory for the prosecution to have clarified the discrepancy between the medical evidence and the oral evidence. The prosecution having failed to do so, in our opinion, there is a serious doubt as to the time of incident and the presence of the eyewitnesses at the time of incident and their narration of the incident also becomes doubtful." 22. Another inconsistency between the oral evidence and the medical evidence is in respect of the injuries suffered by the deceased. Mulayambi professes to have intervened to rescue the deceased and to be present near the deceased at the time of occurrence. She professes to have observed the assault from close quarters. According to her, Hafiz (accused No.2) had inflicted axe blows on the head and back of the deceased. Others had inflicted stick blows on his back. However, the medical evidence shows that the deceased had not sustained incised injury on his head. He sustained four CLWs on the head and three stab wounds on the back. During his cross-examination Dr. Deshmukh admitted that stab injuries can be caused by sharp pointed weapon and not by an axe. He further admitted that size of the stab injuries suggest that these injuries might have been caused by different weapons. It is thus, apparent that the incident has not taken place in the manner stated by the eye witnesses. The inconsistency between the ocular and medical evidence cannot be explained by any rational hypothesis. Thus, in the present case, medical evidence falsifies ocular evidence of partisan witnesses. There can be no dispute that the direct evidence is to be preferred to the opinionative medical evidence if it otherwise satisfies the conscience of the Court. However, in the present case, it is accepted that the prosecution has examined Chotu (P.W. 2) who is a got up witness. Thus, F.I.R. lodged by Vijay on the basis of information given by Chotu looses its authenticity. Not only that if the incident has taken place at 7.30 a. m. presence of Vijay at the scene of occurrence at 8.00 a. m. is highly improbable. It is also inexplicable why the investigating officer chose to record F. 1. Thus, F.I.R. lodged by Vijay on the basis of information given by Chotu looses its authenticity. Not only that if the incident has taken place at 7.30 a. m. presence of Vijay at the scene of occurrence at 8.00 a. m. is highly improbable. It is also inexplicable why the investigating officer chose to record F. 1. R. of Vijay instead of Mulayambi though all the details of the incident were conveyed to the police by Madhavrao (P.W. 9). Other infirmity in the evidence is that according to Police Patil he confined the accused in Grampanchayat office. But the investigating officer contradicts this evidence by admitting that the accused were freely moving near the Grampanchayat and were not given in custody by the Police patil. Arrest panchanama shows that three accused are arrested between 3.00 p.m. to 4.00 p.m. and Subhan (accused No.4) was arrested at 9.00 p.m. This contradiction casts a shadow of doubt on the evidence regarding the discovery. If in fact the accused were confined in Grampanchayat office and were handed over to the police by Madhavrao (P.W.9) then they had no opportunity to carry weapons to their house. In view of these discrepancies and in the face of a positive finding that the prosecution has examined a got up witness it is not safe to rely on the ocular evidence of partisan eye witnesses which is contradicted by the medical evidence. 23. The Sessions Judge has also referred to the anomaly between the oral evidence and the medical evidence. The principles applicable are also discussed by the Sessions Judge but apparently an error has been committed in applying these principles to the facts of the present case. Learned Judge was influenced by the fact that there are no major inconsistencies in the evidence of the eye witnesses. However, he lost sight of the fact that what has to be ascertained is whether the version of the incident given by these witnesses is reliable or not. If a witness concocts a story he is bound to stick to it. In that case also there would not be major contradictions in his evidence. A concocted version of the incident cannot be accepted merely for the absence of major contradictions or omissions. An error has been committed in lightly brushing aside inconsistency between oral testimony and the medical evidence without giving cogent reasons. In that case also there would not be major contradictions in his evidence. A concocted version of the incident cannot be accepted merely for the absence of major contradictions or omissions. An error has been committed in lightly brushing aside inconsistency between oral testimony and the medical evidence without giving cogent reasons. The conclusion of the Trial Court which ignores vital clues cannot be sustained. On careful consideration of the totality of the evidence, in our opinion, evidence of alleged eye witness Mulayambi and Dilawar is not worthy of belief. The prosecution has resorted to several manipulations but has failed to lead cogent and reliable evidence to establish complicity of the accused in commission of the offence. In view of the infirmities in prosecution evidence referred to earlier, it is not necessary to dilate on the circumstantial evidence which is also unreliable. 24. In the result, both the Criminal Appeals are allowed and conviction and sentence of the appellants is hereby quashed and set aside and the appellants are acquitted of the offence with which they were charged and convicted. Fine if paid by the appellants, be refunded to them. The appellant- Hafiz Usman Patel in Criminal Appeal No. 564/2002 be released forthwith, if not wanted in any other case. The bail bonds of the appellants /original accused in Criminal Appeal No. 524/2002 stand cancelled. Appeal allowed.