JUDGMENT Aftab H. Saikia, J. 1. The earlier appointed Amicus Curiae Mr. B. Buragohain is found to be absent when the matter is taken up for hearing and accordingly Mr. J.I. Barbhuyan has been appointed as Amicus Curiae. Heard Mr. J.I. Barbhuyan, learned Amicus Curiae. Also heard Mr. K.A. Mazumdar, the learned P.P., Assam. 2. This criminal appeal has been preferred by the appellants from jail challenging their conviction under Section 302 IPC and subsequent sentence to undergo rigorous imprisonment for life passed by the learned Sessions Judge, Tinsukia in Sessions Case No. 137(T)/00 on 18.12.2001. 3. The prosecution case, in short, may be noticed. An F.I.R. was lodged with the Officer-in-Charge, Dumduma Police Station on 19.08.1994 by P.W. 2, Sri Khandru Nayak alleging that on 16.08.1994 (1) Shri Luka (2) Shri Kesha and (3) Sansai along with three others killed his neighbour Shri Suren Tanti and buried his body without anybody's knowledge. They also threatened him for the same consequence. Police registered a case and during investigation, exhumed the dead body of Suren Tanti from a graveyard and sent the dead body for post mortem examination. Police examined witnesses and arrested the accused namely Sansai Gowala, Sekhar Loknath, Mohan Parikit, Shivchand Premsing and Chutu Dulov. 4. On completion of the investigation, the police submitted charge-sheet against the appellants under Section 302 IPC when other two accused namely Sekhar Loknath and Mohan Parikit were declared absconders. 5. During the trial before the learned Sessions Judge, Tinsukia the prosecution examined as many as nine witnesses including three official witnesses namely P.W. 6-Sri N.K. Bora, Judicial Magistrate, First Class who recorded the confessional statements of appellant No. 1 Sansai Gowala and another Sekhar Rupnath Gowala who was declared to be absconder and P.W. 8, Dr. H. Sarmah, who conducted the autopsy over the dead body of Suren Tanti (hereinafter referred to as 'the deceased') as well as P.W.9, Mr. Imran Hussain, the Investigating Officer. After completion of recording of evidence of witnesses, the appellants were also examined under the provision of Section 313 Cr.P.C. 6. Challenging the conviction and sentence of the appellants Mr. H. Sarmah, who conducted the autopsy over the dead body of Suren Tanti (hereinafter referred to as 'the deceased') as well as P.W.9, Mr. Imran Hussain, the Investigating Officer. After completion of recording of evidence of witnesses, the appellants were also examined under the provision of Section 313 Cr.P.C. 6. Challenging the conviction and sentence of the appellants Mr. Borbhuyan the learned Amicus Curiae has made basically two fold arguments:- (i) the testimony of P.W.3 Loknath Ramchandra who is aged about 70 years and P.W. 7 Sri Ajit Sudon, whose evidence was relied upon by the trial Court in convicting the appellants, is wholly unreliable and uncorroborated and as such there evidence cannot be the basis of conviction of the appellants as recorded by the trial Court and (ii) even if the confessional statement is accepted, it would be crystal clear that the appellants have given lathi blow on the legs of the deceased and the same is contrary to the medical evidence so adduced by P.W.8, Dr. H. Sarmah who in his examination found as many as 3 incised injuries over the occipital scalp and bruises over right leg and ankle on all sides, left arm and forearm and in his opinion all those injuries No. 1, 2 and 3 was collectively sufficient to cause death of a person in ordinary course of nature. 7. It would be apt and necessary to quote the injuries so found by doctor P.W.8 which are as follows: Injuries:-1. An incised wound over the occipital scalp placed obliquely 2 Cmx 5 cm x scalp deep. 2. Another incised wound over middle part of the left leg with beveling from above down wards and obliquely cutting the fibia measuring 3 x 1 x 1 cm. 3. Another incised wound over the left wrist at ulnar border measuring 2 x 1 x 1 cm exposing the carpal bones. 4. Bruises over the right leg and ankle on all sides, left arm and forearm on anterolateral surface and ventral aspect of right forearm. In his opinion the doctor stated as under: Cause of death was due to shock resulting form the injuries sustained. Injuries were antemortem and homicidal in nature. Time since death approximately 3 to 7 days on burial. Ext. 3 is the post mortem report. Ext. 3(1) is my signature. In his opinion the doctor stated as under: Cause of death was due to shock resulting form the injuries sustained. Injuries were antemortem and homicidal in nature. Time since death approximately 3 to 7 days on burial. Ext. 3 is the post mortem report. Ext. 3(1) is my signature. Injury No. 1, 2, 3 are collectively sufficient to cause death of the person in the ordinary course of nature. Alongwith dead body, I received command certificate, forwarding report, dead body challan and inquest report. Ext. 4 is command certificate, Ext. 5 is forwarding report, Ext. 6 is dead body challan, Ext. 7 is inquest report wherein Ext. 4(1), 5(1), 6(1), 7(1) are my signatures. In cross this witness states as under: The fact relating to burial of the dead body was known from the information furnished by police. Once decompose starts, it is always termed as decomposed and in medical term there is no provision of percentage of decomposition. 8. On the other hand Mr. K.A. Mazumdar, the learned Public Prosecutor supporting the impugned conviction and sentence has forcefully argued that the learned trial Court has rightly convicted and sentenced the appellants basically relying on the evidence of PWs. 3 and 7 discarding the confessional statement made by the appellant No. 1. He has emphatically contended that deposition of P.Ws 3 and 7 is sufficient to convict the appellants under Section 302 IPC. 9. We have carefully gone through the entire evidence on record especially the P.Ws 3 and 7 as well as the confessional statement made by the appellant No. 1 and examination of the appellants under Section 313 Cr.P.C. 10. In his statement recorded under Section 313 CrP.C. the appellant No. 1 clearly retracted stating that he made confession out of fear of the police as the police took him to the Court and he did not confess about committing the crime. He clearly stated that he simply said that the deceased died in the morning. From perusal of the confessional statement of appellant No. 1 it may be noticed that on the eventful night he along with Sekhar, Mohan, Tutu, Sibchand and others with other local boys from the neighbourhood were taking tea and 'ganja' at his home. At about 10 pm his wife's brother, the deceased came and started to rebuke him and beat him. Previously he had also broken his left hand by beating. At about 10 pm his wife's brother, the deceased came and started to rebuke him and beat him. Previously he had also broken his left hand by beating. When he attempted to beat him the boys who were sitting at his home held him and beat him. Some of them beat him with lathi. He could not ascertain who were those boys. Then he also brought out a lathi from inside his home and dealt about four strokes on Suren's leg and left after that. On the following day he could learn that the deceased died. The father of the deceased also told him that on the previous day i.e. on 14.08.1994 the deceased inflicted cuts on his sister Annapurna. 11. From the confessional statement it is clear that lathi was used for assaulting the deceased, on his legs when doctor's evidence clearly revealed that the deceased suffered as many as three injuries i.e. Injury No. 1, Injury No. 2 and Injury No. 3 and those all were incised injuries which could be caused by sharp weapons. 12. Coming to the evidence of PW. 3, it is noticed that according to this witness occurrence took place at 10 pm and the accused person had quarrel with the deceased. On hearing hulla he went out and found the accused persons and Prem Singh who gave a threat and out of fear, he went back to his house. Next morning when he was attending call of nature, he saw a dead body was being carried away by some persons towards a burial ground at some distance from his house. According to this witness, out of fear he did not go near the place of occurrence but noticed that the dead body was being carried by those persons. Amazingly this witness did not name any one out of fear. He even did not see the accuse-appellants when the dead body was carried for burial. His only version centered around the presence of the accused-appellants while quarrelling with the deceased and that too he noticed them from some distance. Being an old man of 70 years this witness said that he could see the accused-appellants in the dark night though his eye sight was deteriorating. He made statement in cross that he noticed carrying the dead body by some persons in the early morning. 13. Being an old man of 70 years this witness said that he could see the accused-appellants in the dark night though his eye sight was deteriorating. He made statement in cross that he noticed carrying the dead body by some persons in the early morning. 13. The evidence of P.W. 7 may be quoted as follows: On, S/A I know the accused persons present in the dock. I knew deceased Suren Tanti who died about seven years back. Myself and Suren were living in two parts of the same house under the same roof. At about 8 p.m. I heard halla on the part of Suren, I went out and saw the accused persons involved in a quarrel with Suren. I protested and the three accused attempted to assault me and out of fear I went inside and bolted the door and through the back door, fled away when I heard the sound of beating to Suren. The accused persons had buried the dead body of Suren and subsequently police exhumed the dead body. xxxxxxx I Saw the three accused and all of them had threatened me but I did not who among them beat Suren. It is not a fact that 1 did not see the occurrence. 14. Having carefully considered the deposition of the above two witnesses we are constrained to hold that the deposition of those witnesses cannot be accepted as they are not reliable and trustworthy. From their evidence it would manifestly reveal that according to P.W. 7 occurrence took place at about 8 pm when P.W. 3 told that it was about 10 pm and did not say anything as regards involvement of the accused persons in the killing of the deceased. P.W.7 categorically stated that he only heard hulla on the part of the deceased. Having come out, he saw the accused persons involved in a quarrel with the deceased. Referring only to the quarrel of the accused persons with the deceased he stated that he heard the sound of beating to the deceased after confining himself inside his house with the bolted door out of fear. It is really interesting to note that when this witness was inside his house how he could to see that the accused persons buried the dead body of the deceased. It is really interesting to note that when this witness was inside his house how he could to see that the accused persons buried the dead body of the deceased. In our considered opinion, on the basis of this piece of evidence, conviction of the appellants cannot be approved. 15. In view of the above discussion and observation, we are of the view that the prosecution has miserably failed to prove its case in its true perspective to rope in the appellants under Section 302IPC. Accordingly we are of the view that the appellants are entitled to get the benefit of doubt. Consequently this impugned conviction and sentence warrant interference by this Court and the same stands set aside and quashed. 16. Appellants be released forthwith if they are not otherwise required in any other case. In the result, this appeal stands allowed tome extent indicated above. LCR be sent down immediately. 17. Before parting with the case record, we would like to put on record our appreciation to Mr. J.I. Borbhuyan, learned Amicus Curiae for rendering his valuable assistance and help in arriving at the aforesaid decision and accordingly we order that he is entitled to get his professional fees which is quantified at Rs. 5000/-. Appeal allowed