JUDGMENT H. Baruah, J. 1. Appellant, Chow Tharaso Mangpong stood charged under Section 302 of the Indian Penal Code for committing murder of one Chow Khamin Manlai on 6th day of May 1998 at village Nampong within the jurisdiction of Namsai Police Station. At the conclusion of the trial learned Additional District and Sessions Judge, Fast Track Court, Eastern Zone, Namsai, convicted the Appellant and sentenced him to undergo life imprisonment and to pay fine of Rs. 3,000/- (Three thousand) and in default of payment of fine, it was also ordered that the Appellant shall further undergo a term of imprisonment for 3(three) months R.I. The judgment was rendered on 14.9.2005 in Namsai P.S. Case No. 23/1998. 2. Appellant being aggrieved by and dissatisfied with the judgment and order of conviction so rendered filed this present appeal challenging its legality and correctness. 3. We have heard Mr. T. Son, learned Counsel for and on behalf of the Appellant, and also heard Mr. N. Lowang, learned Additional Public Prosecutor for and on behalf of Respondent, the State of Arunachal Pradesh. 4. The criminal law was set in motion by one Chow Kem Hopak, G.B. of Nampong village by filing an FIR (Ext. 1) with the Station House Officer (SHO) of Namsai Police Station to the effect that there had been a "marpit" in between the deceased Chow-Khamin Manlai and Chow Pingya Manlai on 5.5.1998, both the brothers due to some household conflict. As aresult of the said "marpit", deceased Chow-Khamin Manlai received serious injuries on his person and was offered treatment in the Community Health Centre (CHC), Namsai, on the same day, but the said Chow-Khamin Manlai succumbed to his injury on the night of 6.5.1998 at about 11 p.m. Mformant suspected that his brother Chow Pingya Manlai (since deceased) and his wife, Nang Khamkon Manlai killed their brother, deceased Chow Khamin Manlai. The Station House Officer of Namsai Police Station on receipt of this first information report, the Ext. 1, registered a case being Namsai P.S. Case No. 23/1998 under Section 302 / 34 IPC. Investigation started. Inquest on the dead body was conducted and thereafter sent for post-mortem examination. In the meantime. Investigating Officer arrested Chow Pingya Manlai, the brother of the deceased and put him injudicial custody. During the course of investigation, Chow Pingya Manlai committed suicide. 1, registered a case being Namsai P.S. Case No. 23/1998 under Section 302 / 34 IPC. Investigation started. Inquest on the dead body was conducted and thereafter sent for post-mortem examination. In the meantime. Investigating Officer arrested Chow Pingya Manlai, the brother of the deceased and put him injudicial custody. During the course of investigation, Chow Pingya Manlai committed suicide. It is to be noted herein that Chow Pingya Manlai committed suicide by hanging on 28.7.1998 while he was in police custody. Investigating Officer also arrested the wife of Chow Pingya Manlai, who was, however, subsequently released on bail, no evidence having been found against her. An U.D. case was registered vide Namsai P.S. Case No. A/1998, which was also investigated by S.I., L. Tabia, the then Station House Officer of Namsai Police Station. During the course of investigation by S.I., L.R. Rana, a prima facie case was found established against Chow Pingya Manlai (since deceased) under Section 302 of the IPC. However, having found the case abated against him due to his death the case was returned in FR (final form) by the Investigating Officer. The FR was ultimately not accepted by the accepting authority and the same was returned for further investigation. This time, investigation was entrusted to Superintendent of Police, R.N. Hazarika, who conducted investigation and examined witnesses including the Circle Officer (C.O.), Piyong, M. Tato, before whom the deceased Chow Khamin Manlai was produced, Shri Hazarika, the Superintendent of Police, after completion of investigation submitted charge sheet against the present Appellant under Section 302 / 34 of the IPC. 5. Learned trial court having considered all the facts and circumstances of the case and the evidence on record both oral and documentary recorded the judgment and order of conviction against the Appellant. Hence, the present appeal. 6. 5. Learned trial court having considered all the facts and circumstances of the case and the evidence on record both oral and documentary recorded the judgment and order of conviction against the Appellant. Hence, the present appeal. 6. Learned Counsel for the Appellant while assailing the impugned judgment and order of raised the following pertinent issues for consideration of this Court: (a) that the learned trial court failed to appreciate the facts and evidence on record in its proper perspective and thereby arrived at an erroneous finding, which, however, cannot sustain in law; (b) that the learned trial court also failed to appreciate the law laid down by the Hon'ble Supreme Court in regard to non-production of weapon of offence, which allegedly had been used by the Appellant at the time of occurrence and; (c) that the learned trial court also failed to appreciate and differentiate, in other words, decipher the evidence on record in order to fix a criminal liability on the Appellant. 7. Before answering these issues so raised, it would perhaps be appropriate for us to make a survey of the evidences available on record. We have already come across that the prosecution altogether examined 16 (sixteen) witnesses in order to warrant a conviction as against this Appellant. We have also come across that the defence before the learned trial court also examined 2(two) witnesses in order to deny the case of the prosecution. 8. For the purpose of assessment of the totality of the evidence on record, we propose to categorize the witnesses into two categories, namely, (i) eye-witness and (ii) hearsay evidence. From the perusal of the evidence of P.W.-1, P.W.-2, P.W.-4, P.W.-6, P.W.-8 and P.W.-9, we have found that they were not the eye-witnesses to the occurrence. Their evidence go to show that they heard about the assault on the deceased by P.W.-13, police personnel and the Appellant. Their evidence are very much uncertain from whom they could learn about the assault. Their evidence cannot be received in evidence when the persons from whom they heard about the occurrence are not examined by the prosecution. Hearsay evidence can be admitted in evidence when the person from whom he or she happens to hear is examined and the person says that he or she had reported the occurrence to the witness or witnesses. Their evidence cannot be received in evidence when the persons from whom they heard about the occurrence are not examined by the prosecution. Hearsay evidence can be admitted in evidence when the person from whom he or she happens to hear is examined and the person says that he or she had reported the occurrence to the witness or witnesses. It is nowhere found in their evidence that they have specified the names of the persons from whom they heard about the assault by police personnel, P.W.-13 and by the Appellant. Therefore, law does not permit to accept their evidence with reference to the occurrence that happened on the relevant day and time. 9. P.W.-3, P.W.-5, P.W.-7 and P.W.-10 all claimed to be eye-witnesses. P.W.-3 is the Head Constable of Namsai P.S. His evidence is that he was instructed by the SHO of Namsai P.S. to hand over the injured (deceased) to his relatives. He met his brother, Chow Pingya Manlai (since deceased) and requested him to take his brother, but he re-fused. Finding no other alternative, he (P.W.-3) came back alongwith the injured and handed over him to the SHO. He also stated that he saw head injury on the injured (deceased) and came to know that the said injured (deceased) died on the next day. From his evidence, it has become crystal clear that this witness had also seen the said injury on the head of the injured (deceased) on the relevant day. 10. P.W.-5 is the daughter of Chow Pingya Manlai (since deceased), the elder brother of deceased Chow Khamin Manlai. Her categorical evidence is that Appellant is her maternal uncle and he killed Chow Khamin Manlai, the deceased, with the help of bricks and stones. She has also stated that Appellant restrained her not to disclose the truth that he had killed the deceased saying that there would be none to help them in bailing out of her father Chow Pingya Manlai (since deceased) from jail. Further, she has categorically stated that the Appellant assaulted the deceased with bricks on his head and thereafter with stones for which eyes of the deceased bulged out from its socket. She further stated that the deceased already sustained injury on his head and the Appellant dealt blows with the help of the bricks on the point of the injury that sustained earlier. She further stated that the deceased already sustained injury on his head and the Appellant dealt blows with the help of the bricks on the point of the injury that sustained earlier. She has also stated that after assault, stones and bricks were thrown away by the Appellant. According to her, occurrence took place at about 11 a.m. to 12 noon in their house. She also stated that such assault was witnessed by one of the brothers of the deceased, namely, 'Koi' and some other persons, namely. Chow Chitachina Manlai, Chow Chitric Manlai, Chow Makham Manlai and Pumseng Manlai. She has also stated further that the Appellant assaulted the deceased in retaliation since the deceased assaulted her mother, his sister. As a result of such assault by the Appellant, the deceased succumbed to his injury. It is revealed from her evidence that at the time of assault, Appellant was uttering the following words, "Why did you beat my sister"? "Why did you beat my sister"? 11. P.W.-7 is Miss Pongseng Manlai, daughter of the deceased. She also claimed to have witnessed the actual assault on her deceased father Chow Khamin Manlai by the Appellant. From her evidence, it is found that assault on her deceased father had taken place in two phases. It is in her evidence that her deceased father assaulted her "Bormaa" (sister-in-law) for which the matter was reported to C.O., P.W.-13, who also assaulted her deceased father and got him injured. It is stated by her specifically that at the time of such assault by the Circle Officer, she was present at the spot. She further stated that as a result of such beating, her deceased father received head injuries and there was profuse of bleeding. The C.O., P.W.-13 after the assault wanted to hand over her deceased father with the SHO of Namsai Police Station, but having seen the condition of her deceased father the SHO refused to accept and put him in custody. Her deceased father was taken back to Nampong village and on his arrival, the Appellant hit her deceased father with stones and bricks as a result of which his eyes came out from socket. After some time, her father died. It is also stated by her that at the time investigation by the former I.O. she did not disclose this fact. After some time, her father died. It is also stated by her that at the time investigation by the former I.O. she did not disclose this fact. She further stated that Appellant was beating her deceased father uttering the following words, "Why did you beat my sister"? "Why did you beat my sister"? So, as per her evidence, it is found clear that she had witnessed the occurrence by her own eyes and she stated that it was the Appellant and Appellant alone, who caused the death of her deceased father by assaulting on his head with the help of bricks and stones. 12. P.W. 10 is another eye-witness; his name is Chow Chota Manlai. He is the nephew of the deceased. This witness also stated that deceased Chow Khamin Manlai assaulted his elder brother and his wife for which the matter was reported to C.O., the P.W. 13, who had assaulted the deceased on head while deceased tried to escape. Injured Chow Khamin Manlai (deceased) was brought back to Nampong where the Appellant had beaten the deceased Chow Khamin Manlai with bricks and stones for assaulting of his sister Nong Khamkon Manlai. The deceased died after 1 to 4 hours of the assault. This witness further stated that he did not disclose the truth to the police at the very inception of the investigation on the ground that the Appellant assured that Chow Pingya Manlai (since deceased) would be bailed out by him, who was in custody at that time. So, the evidence of this particular witness also makes it palpably clear that it was the Appellant and Appellant alone, who had killed the deceased Chow Khamin Manlai by assaulting him with bricks and stones. 13. All these witnesses, namely, P.W. 5, P.W. 7 and P.W. 10 were thoroughly cross-examined by the defence. But from a close scrutiny of the evidence of these witnesses appearing in their cross-examination, we do not find such astounding factors, which could deny the case of the prosecution. From the cross-examination, we have, of course, found some minor discrepancies, which to our consideration, cannot reject the case of the prosecution. 14. The dead body of the deceased was sent for post-mortem examination and postmortem was conducted by Dr. C.K. Gohain, who was at the relevant point of time serving at CHC of Namsai. Dr. C.K. Gohain was examined as P.W. 11 by the prosecution. 14. The dead body of the deceased was sent for post-mortem examination and postmortem was conducted by Dr. C.K. Gohain, who was at the relevant point of time serving at CHC of Namsai. Dr. C.K. Gohain was examined as P.W. 11 by the prosecution. This witness stated in his evidence that one constable N. Wangpa brought the dead body of the deceased and it was identified by one Kemoto Manpoong. On examination, he found the following injuries on the dead body: (a) Stitched injury on the scalp 3 inch in length. (b) Injuries on occipital region and both in right and left parietal region measuring 3 inch in length. (c) Bruises on both arms and chest wall. (d) Multiple lacerations on cranium and also on the scalp with blood clot between skull and the scalp. (e) Fracture of occipital bone. (f) Fracture of both right and left humorous. 15. This witness opined that multiple injuries on his head with fracture of scalp, contusion and internal haemorrhage of brain caused death of the deceased. The injuries were ante-mortem in nature. It was also stated by him that injuries on head were sufficient to cause death of a person in the ordinary course of nature. According to him injuries were caused by heavy and blunt object like trunk (of tree), stones and of like nature. From his cross-examination, we have come across that some old injuries were also in existence on the dead body of the deceased, which were, however, according to him not grievous in nature. Further he in his cross-examination stated that those injuries were at the verge of healing. This goes to show that the deceased earlier had received some injuries on his person before receipt of fracture injuries on his head. 16. We have also come across the evidence of another doctor, namely. Dr. M. Riba. He was examined as P.W. 12 by the prosecution. On close scrutiny and marshalling of his evidence, it is found that on 5.5.1998 while he was serving at CHC (Community Health Centre), Namsai, a patient namely, Nong Hambou Manlai was brought to the hospital by her husband for treatment alleging that she had been beaten by her younger brother-in-law. She was offered preliminary treatment and was admitted in the Hospital. She was offered preliminary treatment and was admitted in the Hospital. He (P.W. 12) also stated that while he came out after admitting the patient above named, he also came across another patient with injury on parietal region from which blood was oozing out. He offered treatment and advised him to be admitted for observation. He also stated that the hands of the patient were tied on his back side. On enquiry he found that the patient was the brother of the husband of the woman patient. The male patient was taken by his elder brother and saying that the patient did not deserve any treatment. 17. This witness was also cross-examined by the defence. It is found from his cross-examination that the male patient was brought by the C.O. (Circle Officer) himself in his jeep with police escort. In the cross-examination it has further come out to the surface that the injuries, which he stitched could not aggravate any complicacy leading to heamorrhage of brain. It is also in his cross-examination that in all probabilities, he did not see any chance of fracture as a result of infliction of such injuries, which he stitched. Again he has also stated in his cross-examination that the injuries, which he stitched could not cause death in all probabilities without there being any other prior injury. 18. So, from the totality of the evidence of this particular witness, we have found that before the alleged assault by the Appellant with the help of bricks and stones, as indicated by P.W. 5, P.W. 7 and P.W. 8, the deceased Chow Khamin Manlai also received some injuries on his head, which according to P.W. 12 were not fractured injuries. 19. Now, let us survey the evidence of witnesses available in the record to ascertain the facts of earlier assault on the deceased, hi this context, evidence of P.W. 7, P.W. 10 and P.W. 15 would be very much relevant. According to their evidence, it is found that the C.O., who examined as P.W. 13 by the prosecution also assaulted the deceased with lethal weapon causing injury on his (deceased) head. Evidence of P.W. 10 and P.W. 15 also speaks for of assault on the deceased by police personnel. However, P.W. 13, the C.O., while deposing before the trial Court denied such assault by him on the deceased. Evidence of P.W. 10 and P.W. 15 also speaks for of assault on the deceased by police personnel. However, P.W. 13, the C.O., while deposing before the trial Court denied such assault by him on the deceased. He, of course ascertained by his evidence that he had seen injuries on the head of the deceased. Thus, evidence of these witnesses lends support to the evidence of P.W. 12, Dr. M. Riba and also evidence of P.W. 11, Dr. C.K. Gohain. 20. On the basis of the evidence available on record, now we are to see whether the death of the deceased was homicidal in nature or not. Before the learned trial Court, inquest report prepared by DW-2 was, however, not proved and marked as exhibit. Therefore, it would not be reasonable on the part of this Court to examine the inquest report in order to ascertain the injuries alleged to have been sustained by the deceased. But from the totality of the evidence makes it sufficiently clear that the deceased received some injuries. Autopsy on the dead body was conducted by P.W.-11, Dr. C.K. Gohain. During autopsy he found some injuries on the dead body including the fracture injuries on the occipital bones. This witness opined that the injuries found on the deadbody were all ante-mortem in nature and injuries found on head (occipital region) were sufficient to cause death in the ordinary course of nature. 21. P.W.-12, Dr. M. Riba also discovered some injuries on the head while examining the deceased. Deceased admittedly died on 6.5.1998 while deceased was produced before P.W.-12 on 5.5.1998 for his treatment. So, from the conjoint reading of the evidence on record, we come to a conclusion that the injuries were ante-mortem and death was homicidal in nature. 22. Most pertinent question before us is who caused death of the deceased? In this context if we consider the evidence of P.W.-7, P.W.-10 and P.W.-15 together with P.W.-11 and P.W.-12 in particular, we can ascertain that on 5.5.1998, the day on which the deceased was produced before P.W.-11, he was assaulted by P.W.-13, the C.O. Again, if we consider the evidence of P.W.-11 and P.W.-12 in this context, we can also ascertain that the injuries found on the person of the deceased on that day were not sufficient to cause death of the deceased. If we subtract this first phase, we must resolve around the second phase of assault on the deceased. We have found categorical evidence from the evidence of P.W.-5, P.W.-7 and P.W.-10 that the deceased was assaulted by the Appellant Chow Tharaso Monpong with the help of bricks and stone. All the three witnesses also stated that as a result of such assault on head, the head got fractured and eyes bulged out from its socket, as a result of which deceased died. All the above named three witnesses are the son, daughter and nephew of the deceased Chow Khamin Manlai and Chow Pingya Manlai (since deceased), the elder brother of the deceased. From their evidence, we are unable to locate any piece of evidence, which might result their evidence worthy of untrust, disbelief and unacceptable. There is also no iota of evidence that these witnesses had any animosity with the Appellant. Conjoint reading of their evidence makes it palpably clear that on 6.5.98, when the deceased was again brought back, the Appellant being annoyed with the fact of assault on his sister, Mrs. Khamkon Manlai by the deceased, assaulted the deceased with bricks and stones which caused fracture of the occipital bone and resulted death. Defence tried to bring out any acceptable facts through cross-examination which could have inspired us to accept the same and reject the case of the prosecution. Having considered their evidence, we are unable to discard their evidence in the context of assault on the deceased by the Appellant, Chow Tharaso Manpong. 23. Learned Counsel appearing on behalf of the Appellant put emphasis that in view of the totality of the evidence, Appellant cannot be held liable under Section 302 IPC. While arguing learned Counsel put more emphasis on the evidence of P.W.-7, P.W.-10 and P.W.-15, which also go to show that the deceased was also assaulted not only by the C.O., P.W.- 13 but also by police personnel. It was also argued by him that P.W.-13 assaulted the deceased on his head with lathi while police assaulted him with rifle butt. When the deceased was assaulted as such, there was every possibility of receiving fracture injuries on the head of the deceased and in that view of the fact culpability of the Appellant cannot be taken into consideration. It was also argued by him that P.W.-13 assaulted the deceased on his head with lathi while police assaulted him with rifle butt. When the deceased was assaulted as such, there was every possibility of receiving fracture injuries on the head of the deceased and in that view of the fact culpability of the Appellant cannot be taken into consideration. Learned trial Court while appreciating the evidence failed to decipher the evidence on record on this point and erroneously held that death was caused due to assault on the head of the deceased by the Appellant with the help of bricks and stones. 24. This piece of argument cannot inspire confidence of this Court since we are unable to locate such evidence, which can make the submission of the learned Counsel for the Appellant acceptable. Admittedly, deceased was assaulted in two phases. In the first phase, though he received some injuries on the head according to P.W.-11 and P.W.-12. These injuries were not sufficient to cause death of the deceased since there was no fracture on the head. P.W.-11, Dr. C.K. Gohain, who conducted autopsy, discovered all those injuries in the stage of healing process. From his evidence, we can infer that injuries were received by the deceased prior to receipt of fracture. P.W.-12 also did find fracture injuries on the head of the deceased, which according to him could not (sic) cause haemorrhage of brain and resulted death. We do not find any other evidence in his testimony that these fracture injuries, which so discovered were in the process of healing stage. The evidence on record is very much clear that deceased was assaulted on 5.5.1998 and also assaulted allegedly by the Appellant on 6.5.1998. Therefore, from the evidence on record, we are unable to accept that the learned trial court failed to distinguish and differentiate the evidence on record in respect of assault on the deceased. We see no plausible and cogent reason to discard and disbelieve the evidence of P.W.-5, P.W.-7 and P.W.-10. They in one and in the same voice stated that it was the Appellant and Appellant alone, who caused the death of the deceased on 6.5.1998 by assaulting him with the help of bricks and stones. 25. We see no plausible and cogent reason to discard and disbelieve the evidence of P.W.-5, P.W.-7 and P.W.-10. They in one and in the same voice stated that it was the Appellant and Appellant alone, who caused the death of the deceased on 6.5.1998 by assaulting him with the help of bricks and stones. 25. Learned counsel for the Appellant also assailed the judgment and order of conviction on the ground that the alleged weapon of offence, particularly, stones and the bricks were not seized by the Investigating Officer, which clouds the case of the prosecution. It was argued by him that in any murder case when there is an allegation of assault with some lethal weapons; it is the duty of the investigating officer to make an endeavour to seize the same. According to him, in this case such effort was not made by the Investigating Officer rather he sat tight over the matter. Of course, we have found from the evidence on record that a lathi had been used by P.W.-13 while assaulting the deceased. Learned Counsel for the Appellant in support of his contentions relied on the decision of case between Kallikatt Kunhu v. State of Kerala, reported in AIR 2000 SC 1235 . We have perused this case and found that it is not applicable in our case in the context of non-seizure and non-production of the weapon of offence and its effect. 26. In reply to the argument of Mr. T. Son learned Counsel for the Appellant, Mr. N. Lowang, learned Public Prosecutor appearing for the State Respondent submitted that the Appellant after assaulting the deceased with the help of bricks and stones threw away same and in that view of the matter, it was not possible on the part of the investigating agency to collect and seize those stones and bricks. Thus, in the face of the evidence, we are unable to accept the contention of the learned Counsel for the Appellant in regard to non- production of the weapons of offence and other used articles of assault since we have come across some unassailable evidence on record, which speaks that the Appellant caused the death of the deceased by assaulting him. There is also evidence on record to show that an attempt was made by the I.O. to recover those bricks and stones under the provisions of Section 27 of the Evidence Act. There is also evidence on record to show that an attempt was made by the I.O. to recover those bricks and stones under the provisions of Section 27 of the Evidence Act. Of course, there appears no such evidence that Appellant ever wished to make a disclosure statement. 27. The next argument advanced by the learned Counsel for the Appellant is in regard to some inconsistencies appearing in between ocular evidence arid medical testimony. In support of his contention he argued that there appears gulf of inconsistence in between the evidence of eye-witnesses and the doctors. He mainly referred to the evidence of P.W. 5, P.W. 7 and P.W. 10 in the context of bulging out of eyes of the deceased as a result of assault on the head by the Appellant. According to him, Dr. C.K. Gohain (P.W.11), who examined the injured (deceased) and who conducted post-mortem examination on the body of the deceased failed to discover the bulging out of eyes from its socket. P.W. 11 found both the eyes intact. Therefore, according to learned Counsel for the Appellant, there appear some inconsistencies in between the ocular evidence and medical testimony. Learned Counsel for the Appellant in this context relied upon the decision in the case between Amar Singh and Ors. v. State of Punjab, reported in AIR 1987SC 826, which read as under: 9. It is next contended on behalf of the Appellants that the learned Additional Sessions Judge and the High Court were not justified in placing any reliance upon the evidence of P.W. 5 Smti. Veero, which is totally inconsistent with the medical evidence. It has been already noticed that all the accused persons were armed with sharp weapons. It is the evidence of P.W. 5 that Amar Singh, son of Bachan Singh, and Rattan Singh were each armed with a Sua. Lakha Singh was armed with a Barchi. Harbhajan Singh was armed with a Kulhari and Amar Singh, son of Isher Das was armed with kirpan. She said "then all the accused except Bachan Singh accused surrounded my son Piara Singh (deceased). Then Lakha Singh accused gave a Barchi blow on the left knee of my son. Lakha Singh was armed with a Barchi. Harbhajan Singh was armed with a Kulhari and Amar Singh, son of Isher Das was armed with kirpan. She said "then all the accused except Bachan Singh accused surrounded my son Piara Singh (deceased). Then Lakha Singh accused gave a Barchi blow on the left knee of my son. Then Piara Singh (deceased) fell down and all the accused then gave injuries to him with their respective weapons." In her cross-examination she said that the accused persons gave quite a number of blows with their respective weapons after they had overpowered him and that many of the blows fell on the ribs and abdomen of deceased Piara Singh. But, not a single incised wound was found on the body of the deceased by P.W. 2, Dr. Verma. Moreover, the medical report shows that there was no injury on the ribs and abdomen of the deceased. We are unable to accept the evidence of P.W. 5 that although number of blows were given by the accused with their weapons on the ribs and abdomen of deceased, yet such blows did not produce any mark of injury. The medical report submitted by P.W. 2 shows that there were only contusions, abrasions and fractures, but there was no incised wound on the left knee of the deceased as alleged by P.W. 5. It her evidence that all the accused inflicted injuries on the deceased with their respective weapons, has to be acted, then there would be incised wounds all over the body, but the medical report shows that not a single incised wound was found on the body of the deceased. Thus the evidence of P.W. 5 is totally inconsistent with the medical evidence. This Court in Ram Narain v. State of Punjab, AIR 1975 SC 1727 : (1975 CriLJ 1500) has laid down that if the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence, this is a most fundamental defect in the prosecution case and unless reasonably explained, it is sufficient to discredit the entire case. There is no explanation for the apparent total inconsistency between the evidence of P.W. 5 and the medical evidence. 10. In this connection, we may refer to the evidence of the second eye-witness P.W. 6 Anokh Singh. There is no explanation for the apparent total inconsistency between the evidence of P.W. 5 and the medical evidence. 10. In this connection, we may refer to the evidence of the second eye-witness P.W. 6 Anokh Singh. In his examination-in-chief this witness sought to support the prosecution case, but in cross-examination he stated in clear and uneqivocal term that he did not see Piara Singh deceased receiving any injury at the hands of the accused. No reliance, therefore, can be placed on the evidence of P.W. 6. So far as P.W. 4 Murta Singh is concerned, he is not a witness of the actual incident, as he had stated running towards village Dhariwal on being chased by Amar Singh and Rattan Singh, sons of Isher Das, and hid himself in the bushes. He then waited for a short while in the bushes out of fear and then went to his house. His mother P.W. 5 told him that his brother Piara Singh had been murdered in the house of Bachan Singh and that he should run away from home. Thus, out of the three witnesses, the only witness who gave evidence about the beating of the Piara Singh deceased by the Appellants and the other accused is P.W. 5, Smti. Veero. Her evidence, as already noticed, is contrary to the medical evidence. 11. We may further examine the evidence of P.W. 5 as to the place where Piara Singh was alleged to have been killed. In her examination- in-chief she stated that all the accused took Piara Singh deceased to the courtyard of the house of Bachan Singh where he was beaten by Amar Singh, the Appellant No. 1, with Thappi. Thereafter Piara Singh was dragged inside the room of the house of Bachan Singh by the accused persons. In her cross-examination she said that after killing Piara Singh on the spot, the accused took him inside the room of the house. The evidence, however, is that blood was recovered from the room and no blood was found on the courtyard. Her evidence is, therefore, inconsistent as to the place where Piara Singh was killed by the accused. In this connection, it may be pointed out that although according to the evidence of P.W. 4 Murta Singh, that when he came home he found his mother weeping and she told him that the accused had killed Piara Singh. Her evidence is, therefore, inconsistent as to the place where Piara Singh was killed by the accused. In this connection, it may be pointed out that although according to the evidence of P.W. 4 Murta Singh, that when he came home he found his mother weeping and she told him that the accused had killed Piara Singh. In the First Information Report lodged by P.W. 4, there is no mention of the statement of his mother that Piara Singh was killed by the accused. 12. Upon an analysis of the evidence of P.W. 5, it appears that her evidence is not only not corroborated by the evidence of any witness, but is contrary to the medical evidence as to the injuries that where found on the body of the deceased. Apart from the fact that the Appellants cannot be convicted under Sections 148 and 149 IPC, it is difficult to convict them on any charge on the basis of the evidence of P.W. 5. The learned Additional Sessions Judge was not right in holding that the guilt of the Appellants had been proved by the prosecution beyond all reasonable doubts. In our opinion, the evidence of P.W. 5, who turns out to be the only eye-witness in the case casts a great doubt as to the commission of any offence by the Appellants and, consequently, the benefit of that doubt must go to the Appellants. 28. From the careful scrutiny and marshalling of the evidence on records, we do not find such particular inconsistency, which can negate the case of the prosecution. Witnesses are always in the habit of stating some exaggerated facts with an aim in view that the court should give a serious thought over such facts and accept it. But for that court cannot throw the case of the prosecution. In that case, court should take the grains only from the chaff and nothing else. If the Court finds that minus the inconsistency the attending facts and circumstances and evidence appearing in the face of the record can result an unassailable opinion, such inconsistencies would not hold good. We failed to accept the argument of the learned Counsel for the Appellant in this regard. 29. Now, let us consider what was the motive of the Appellant behind, which actuated the Appellant to cause death of the deceased. We failed to accept the argument of the learned Counsel for the Appellant in this regard. 29. Now, let us consider what was the motive of the Appellant behind, which actuated the Appellant to cause death of the deceased. We have already come across that deceased assaulted his sister-in-law, wife of Chow Pingya Manlai (since deceased), his elder brother and for some house hold reason. When deceased was taken back from C.O.'s place, Appellant came and assaulted on his head with the help of bricks and stones resulting his death. We have also found from the evidence of P.W. 7 and P.W. 10 that while assaulting deceased, Appellant uttered the following words, "Why did you beat my sister"? "Why did you beat my sister"? Thus, this pointed not to say that he had intention to kill the deceased since he (deceased) had assaulted his (Appellant) sister. There is a thin line in between the words, "motive" and "intention". The line can be differentiated seldom from the attending facts and circumstances of each case. "Motive" and "intention" as said are two sides of the same coin and always overlaps each other. 30. Now, let us consider whether defence evidence could have overriding effect on the case of the prosecution case. We have found from the evidence of DW-1 that all the relatives implicated Chow Pingya Manlai (since deceased), elder brother of the deceased when he examined them during the investigation and not the Appellant. DW-2 also testified himself that son Chow Chota Manlai never implicated the Appellants who subsequently examined to be an eye-witness. 31. Learned Counsel for the Appellant therefore while arguing put explains that in view of the evidence of defence witness, evidence of prosecution witness namely P.W. 5, P.W. 7 and P.W. 10 should be rejected. According to him this witnesses closed their mouth and now opened and claimed to have witnessed the occurrence/assault on the deceased. 32. In this context, we have come across a plausible explanation offered by these witnesses why they did not divulge the actual fact. Some assurance when given by the Appellant to them that he would make all effort to bail out Chow Pingya Manlai from jail and also threatened them not to divulge. Defence in view of such evidence cannot, however, be accepted. 33. Some assurance when given by the Appellant to them that he would make all effort to bail out Chow Pingya Manlai from jail and also threatened them not to divulge. Defence in view of such evidence cannot, however, be accepted. 33. Thus, from the totality of facts and attending circumstances on the face of the record and evidence on record, we do not have any hesitation to hold that it was the Appellant and Appellant Chow Tharaso Mdnpong alone, who killed deceased Chow Khamin Manlai. No room of doubt creeps in too. We do not find any infirmity and illegality in the judgment and order of conviction dated 14.9.2005 so rendered by the learned Additional Sessions Judge, Fast Track Court, Eastem Zone, Namsai in Namsai Police Station Case No. 23/98. The judgment and Order dated 14.9.2005 of conviction and sentence is accordingly affirmed. 34. In the result, the appeal stands dismissed. Appeal dismissed