JUDGMENT Aftab H. Saikia, J. 1. This Criminal Appeal has been preferred by the State being aggrieved by the judgment and order dated 18.05.2001 passed by the learned Sessions Judge, North Lakhimpur in Sessions Case No. 82(NL)/99 acquitting all the six accused-respondents from the charges under Sections 302/149/34IPC. 2. Unfortunately, the learned Public Prosecutor, Assam (for short, the 'P.P') entrusted with the case is found to be absent when the appeal is taken up for hearing. It has become a usual feature that as and when the cases are taken up for hearing, the learned P.Ps. are normally found to be absent. Even when they are present, they are not at all ready with their cases either on one plea or other. As a result, the Court is detained from getting any valuable legal assistance from the end of the learned P.Ps. for which the Court has no other alternative or option but to decide the matter without the help of the P.Ps. This is what exactly happened in this case. 3. The challenge against the judgment and order of the learned Judge has been made by the State for acquitting all the six accused persons for allegedly committing murder of one Abdul Malek on 10.5.1998. 4. None appears for the State. We have heard Mr. T.J. Mahanta and Miss P. Bhattacharyya, learned Counsel appearing for the respondents. 5. The factual matrix in a short compass needs to be noticed. 6. An FIR was lodged by P.W-1 Hasmot Ali with Bangalmara Police Out post under Bihpuria Police Station alleging inter-alia that at about 5-20 p.m. on 10.5.98, Md. Abdul Khaleque son of Md. Hussain Ali, a resident of Sonapur Block Gaon and Md. Osman Ali, son of Md. Abdul Khaleque inflicted grievous injuries on Md. Abdul Malek, son of Md. Hussain Ali (hereinafter referred to as "The deceased") by spear and dao as a result of which Abdul Malek died on the way to the Hospital. 7. The six respondents herein faced trial under Section 302 read with Section 34 IPC and the learned Judge on proper appreciation of the evidence of as many as 12 witnesses including the P.W-6, Dr. 7. The six respondents herein faced trial under Section 302 read with Section 34 IPC and the learned Judge on proper appreciation of the evidence of as many as 12 witnesses including the P.W-6, Dr. Kiran Chandra Chetia, who conducted the autopsy on the dead body of the deceased and also on examination of the documents so exhibited as Exhibit was of the view that the prosecution failed to prove the commission of offence under Sections 302/34 IPC against all the accused persons and they were acquitted by giving them benefit of doubt. 8. We have scrupulously scanned the testimony of all the witnesses so produced by the prosecution as well as by the defence. 9. P.W.-1, Hasmot Ali who is the informant, in his deposition stated that upon hearing commotion towards the north of his home while he was at home on 10.5.98, he went there immediately in a run and then he found that Abdul Malek lying on the field and some people bandaging his injuries in the abdomen. According to this witness, Malek told him that Osman, Hasina, Hamida, Hafza, Khaleque and Noor Miyan, all the respondents herein, beaten him and that Osman first hit him (deceased) in the abdonment with spear and others with daos in the field. Then immediately he went to the concerned Police Station and lodged FIR, Ext.-1. However, it is interesting to note that this witness having been told the names of all the six accused by the deceased by way of extra-judicial confession, as deposed by this witness, named only two accused i.e. Abdul Khaleque and Osman Ali in the FIR with a specific allegation that they inflicted grievous injuries on the deceased by spear and daos. This witness in his cross-examination denied the suggestion that on the day of occurrence he along with his brother Rusmat, Rustom Ali, Abdul Gani and Malek, being armed with Jathi, Dao and spears went to the place of occurrence in order to harvest the paddy grown by Khaleque and when Osman forbade them to harvest the paddy, then only they armed with Jathi, spears and daos rushed at him and had beaten him and then he hit Malek with spear in self defence. 10. 10. P.W-2, Abdul Mutalab Khan testified that when he came home from Bangalmara, he saw in front of the house of Jubed Ali, P. W-5 that the dead body of the deceased was being carried by people who told him that Khaleque, his son and wife, killed Malek in the field. 11. P.W-3, Abdul Borah deposed that having heard a commotion in the field, he went there and he found the deceased lying injured in the filed of Hasmat Ali, P.W-1. There Malek's son Musfi, daughter Hasina, P.W-8, Abdul Gani, P. W-7 and a girl Manika, P. W-9 were bandaging Malek's body. On being asked, Malek told him that Osman inflicted cut blows on the chest of him with spear and Khaleque and his wife inflicted cut blows on him with dao. 12. Now let us appreciate the testimony of P.W.-4, Ahmed Ali who according to the learned Counsel for the respondents testified the correct factual situation for causing the death of the deceased. 13. According to this witness P.W-4 Ahmed Ali, while he heard a commotion towards the north of his home, he went to the field and he found Khaleque and his wife with spear in hands, Hasmat with Jathi and his family members were there. He refrained from going there out of fear. Having been beaten by them, Malek fell down and he was taken to the house of Jubed Ali, P.W.-5 in an injured state. 14. Having been checked up the original records, it is found that weapon so used was "Jathi" not "lathi" as translated in the Paper Book. 15. This witness did not disclose anybody's name who assaulted the deceased. Significantly, it is seen from the evidence of this witness that it was P.W-1 and the informant, who was having a spear in his hand. 16. In the medical evidence, P.W-6 Dr. Kiran Chandra Chetia in his deposition stated that he found the following injuries on the dead body of the deceased; "Injuries 1. Cut Injury on the upper part of right side of the chest in front, (2 x1 x1). Clotted blood present at the side. 2. Cut injury in front of the middle part of the right side of the chest. (3x1 x1) Clotted blood at the margins present. 3. Penetrating injury on the lower part of the right side of the chest in front.(2 x1 x2). Clotted blood present. 4. Clotted blood present at the side. 2. Cut injury in front of the middle part of the right side of the chest. (3x1 x1) Clotted blood at the margins present. 3. Penetrating injury on the lower part of the right side of the chest in front.(2 x1 x2). Clotted blood present. 4. Cut injury above right knee in front. (1 x1½×1/4). Clotted blood present. 5. Penetrating injury on the upper part of the left side of the abdomen (214 x1 14 x3) Clotted blood present at the margins. A part of intestinal loops with omentum coming out through the injury and there was penetrating injury in the intestinal loop (1 "x14" x1"). Abdominal cavity was full of blood. Liver: Penetrating injury upper part of the right side of the liver present (1x14 x1) Stomach: Healthy and contain food particles. Clotted blood present in the right plural cavity as right pleurae was cut at the site of the injuries. Cut injuries 2 in Nos. present front of the right lung. Injuries as described were antemortem in nature and caused by sharp weapon. 17. In his opinion, Doctor stated that the person died due to shock and haemorrhage as a result of the injuries sustained. 18. In cross-examination, Doctor gave the following deposition: I did not mention the nature of the injury sustained by the deceased in my Report. I did not specifically mention which of the injuries are caused by which of the weapons. I also did not mention the age of the injuries sustained by the deceased. I also did not mention whether the injuries were sustained simultaneously. One person may cause all these injuries. If proper treatment was given, the deceased in unlikely to survive. 19. P.W-7, Abdul Gani, the uncle of the deceased, in his evidence, testified that while coming on the day of occurrence from Fatepur accompanied by his daughter-in-law, on reaching the front of Malek's house, the deceased's wife told him "Maternal Uncle a fight has taken place here, please move on to there". Immediately he went to that place. At that time fight was going at slightly little east of Malek's house. Khaleque, Hasina and Osman were fighting with Malek. When he asked them to go away, Osman rushed at him with a spear in his hand. Immediately he went to that place. At that time fight was going at slightly little east of Malek's house. Khaleque, Hasina and Osman were fighting with Malek. When he asked them to go away, Osman rushed at him with a spear in his hand. Out of fear, he retreated and came back but surprisingly this witness although he came back on retreat out of fear further deposed that Osman stabbed Malek with the spear blow on his chest and immediately thereafter Khaleque hit on the left side of Malek's back. After Malek fell down on the ground, Khaleque and Hasina hacked him with dao. After that Khaleque, Hasina and Osman left the place. The evidence to the extent that Khaleque hit on the left side of deceased's back, according to us, that was not proved from medical evidence. It is to be noticed carefully that when this witness left the place due to fear, how he could see the entire incident of assault inflicted upon those injuries with speculation as narrated, on the body of the deceased. 20. P.W-8 Musstt. Hasina Begum and P.W-9, Musstt. Manika Khatun were also narrated the same story asserting that the fight took place between the parties of Hasmat Ali and the respondents. It is also come on record from the evidence of those witnesses that the incident took place at P.W-1 Hasmat's field. 21. We have also scrupulously analysed the testimony of the defence witnesses. D.W-1, Md. Osman Ali, one of the accused, adducing his evidence under Section 315 Code of Criminal Procedure, deposed that he along with his parents, two sisters and uncle Nurul Amin too were accused in this case which was filed against them alleging commission of murder of the deceased who was his uncle. The occurrence took place over the harvesting paddy. The land from where the paddy harvested belonged to them. His father Abdul Khaleque grew Bodo Paddy there. But they could not harvest paddy. It was his uncle Abdul Malek, Hasmat Ali, Rusmot Ali, Rustom, Abdul Barek, Abdul Gani, Manika, Hasina and Musfir reaped and took away the paddy trespassing their land. When they offered resistance Hasmot, Rusmot, Abdul Malek, Abdul Gani and Barek attacked him with dao, jathi etc. and surrounded him. But they could not harvest paddy. It was his uncle Abdul Malek, Hasmat Ali, Rusmot Ali, Rustom, Abdul Barek, Abdul Gani, Manika, Hasina and Musfir reaped and took away the paddy trespassing their land. When they offered resistance Hasmot, Rusmot, Abdul Malek, Abdul Gani and Barek attacked him with dao, jathi etc. and surrounded him. In self defence he took spear that was lying near the cultivation and brandished the same and dropping the spear there immediately he went back home. However, Hasmot and others attacked them at their home and set fire to their house. 22. The other witness D.W-2, Md. Hussain Ali, father of the deceased, in his evidence, testified that both the accused Khaleque and deceased Malek were his sons. His father-in-law one Azizur Rahman, gifted 12 Bighas of land to his wife Nekjan Bibi. He partitioned the said land in equal share to all his sons. After that both of his sons were enjoying the possession over the same land individually. He father-in-law got married for the second time and 8 children were born from the side of the second wife. Barek, Hasmot, Rusmot, Siddique and others got his two sons involved in the fight. They took Malek's side. Khaleque grew Bodo paddy on his share of land. But Hasmot, Rusmot, Rustom, Siddique, Malek, Gani, Barek reaped the paddy and took away the same. Then Khaleque's son Osman offered them resistance. At that time he was at home and Osman informed him the same from the embankment. But though he too went forward, on having heard accused person's threatening call, he refrained from going. Accused persons attacked Osman-accused respondent No. 2. 23. In cross-examination, this witness D.W.-2 categorically evidenced that the occurrence took place at the land of Khaleque-respondent No. 1. He also denied the suggestion that Khaleque attacked along with his family members and killed Malek. 24. Having carefully evaluated and assessed the testimony of the witnesses above mentioned, this Court is of the considered view that the entire incident took pace due to the dispute as regard to the possession of the land in question and there was a mutual fight between the parties. 25. We have also given weightage to the defence witness. 24. Having carefully evaluated and assessed the testimony of the witnesses above mentioned, this Court is of the considered view that the entire incident took pace due to the dispute as regard to the possession of the land in question and there was a mutual fight between the parties. 25. We have also given weightage to the defence witness. The Apex Court in a decision reported in the State of Haryana v. Ram Singh AIR 2002 SC 620 in paragraph-19, dealing with the credibility and acceptance of the defence witness observed as under: 19. Incidentally be it noted that the evidence tendered by defence witnesses cannot always be termed to be a tainted one--the defence witnesses are entitled to equal treatment and equal respect as that of the prosecution. The issue of credibility and the trustworthiness ought also to be attributed to the defence witnesses at part with that of the prosecution. Rejection of the defence case on the basis of the evidence tendered by defence witness has been effected rather casually by the High Court. Suggestion was there to the prosecution's witnesses in particular PW-10 Dholu Ram that his father Manphool was missing for about 2/3 days prior to the day of the occurrence itself-what more is expected of the defence case: a doubt or a certainty - jurisprudential a doubt would be enough: when such a suggestion has been made prosecution has to bring on record the availability of the deceased during those 2/3 days with some independent evidence. Rejection of the defence case only by reason thereof is far too strict and rigid a requirement for the defence to meet it is prosecutor's duty to prove beyond all reasonable doubts and not the defence to prove its innocence--this itself is a circumstance, which cannot but be termed to be suspicious in nature. 26. Given the facts and circumstances in its entirety and also having regard to the above cited case, this Court is of the considered view that the Appellants are entitled to get the benefit of doubt and accordingly, we are in full agreement with the view expressed by the learned Sessions Judge recorded in the impugned judgment and order acquitting them from the charge under Sections302/149/34 IPC. 27. In the result, this appeal fails and stands dismissed. 28. L.C.R. be sent down forthwith. Appeal dismissed