JUDGMENT Aftab H. Saikia, J. 1. Heard Mr. A.M. Mazumdar, learned Senior Counsel assisted by Mr. S. Islam, learned Counsel appearing on behalf of the Appellants as well as Mr. K.C. Mahanta, learned Public Prosecutor, State of Assam. 2. This criminal appeal has been preferred against the judgment and Order dated 9.4.03 passed by the learned Sessions Judge, Morigaon in Sessions Case No. 47/96, whereby all the five Appellants before us have been convicted under Sections 302/149 IPC and sentenced to undergo rigorous imprisonment (for short, 'R.I.') for life with a fine of Rs. 500/- each, in default, further R.L for another one month each. 3. The prosecution case in brief is that P.W. 1, Abdul Kasem lodged an FIR with Laharighat Police Station on 18.10.92 alleging that at around 11:00 AM on the same day i.e., on 18.10.92 after selling jute at Laharighat Bazar while he was coming back for home taking Abdul Kadir (hereinafter referred to as 'the deceased') along with him in a bicycle, all the five Appellants herein including one Abdul Bhaktiar being armed with weapons ambushed and got Abdul Kadir dismounted from the bicycle and killed him by hitting with dagger, ramdao, lathi etc. out of an old grudge. On the basis of the FIR, investigation ensued and on completion of the investigation, police submitted chargesheet against all these five Appellants excluding Abdul Bhaktiar. 4. During trial, the prosecution examined as many as seven witnesses including P.W. 1. Abdul Kasem projected as eye-witness along with two other official witnesses, namely, P.W. 6 (Dr. Mobidur Rahman) and P.W. 7 (Hazarat Ali), the Investigating Officer (for short, 'I.O.'). 5. The learned Sessions Judge, Morigaon, after having evaluated and scrutinized the testimony of those witnesses including the eye-witness and also keeping in view the medical evidence, found all these Appellants guilty for the offence of killing the deceased and consequently convicted and sentenced them as indicated hereinabove. 6. Be it mentioned herein that during their incarceration, the Appellant No. 1 (Abdul Gafur) expired in jail while serving the sentence. 7. We have given our anxious consideration to the extensive arguments so placed on record by the learned Counsel for the parties including the submissions made by Mr. Mazumdar, learned Senior Counsel appearing on behalf of the Appellants. 6. Be it mentioned herein that during their incarceration, the Appellant No. 1 (Abdul Gafur) expired in jail while serving the sentence. 7. We have given our anxious consideration to the extensive arguments so placed on record by the learned Counsel for the parties including the submissions made by Mr. Mazumdar, learned Senior Counsel appearing on behalf of the Appellants. We have also scrupulously scanned and appreciated the testimony of all the witnesses so examined by the prosecution including the eye-witness i.e. P.W. 1 and the medical evidence of P.W. 6, the Doctor. 8. P.W. 1 (Abdul Kasem), being the informant, who was examined as eyewitness by the prosecution, in his deposition, stated that on the fateful day while he was returning home taking the deceased on his bicycle in the front seat, all the Appellants waylaid them on the road and got the deceased dismounted from the bicycle. The Appellant No. 1 (Abdul Gafur), according to this witness, asked the other Appellants to catch the deceased and at that time Appellant No. 2 (Abdul Rajak) struck the deceased on his head with a 'lathi' and Appellant No. 5 (Suraj Ali) stabbed the deceased in his abdomen with a dagger. The other Appellants struck the deceased with 'lathi' and 'dao'. At that time, according to this witness, he offered resistance to them but they defied. The accused persons warned him that they would kill him too. At this, he left the place of occurrence on his bicycle. Thereafter, he went to the market and there he met Resmat Ali (P.W. 4) and he narrated the incident to him and then they went to the Police Station for lodging the FIR which was written as per his version and the same was read over to him and he put his signature thereon. 9. In cross, this witness testified that the deceased was also in jail 'hajot' in connection with the murder of one Gafur, the son of Jabbar. After such murder, the deceased started to live in the house of his father's-in-law. The deceased was murdered after six months of murder of Gafur. House of the accused persons were nearby the house of his paternal aunt. The Appellants Nos. 4, 3 and 2 i.e., Abdul Hai, Abdul Matleb and Abdul Rajak respectively were the sons of Gafur. After such murder, the deceased started to live in the house of his father's-in-law. The deceased was murdered after six months of murder of Gafur. House of the accused persons were nearby the house of his paternal aunt. The Appellants Nos. 4, 3 and 2 i.e., Abdul Hai, Abdul Matleb and Abdul Rajak respectively were the sons of Gafur. He raised alarm when the assault took place upon the deceased and many people gathered there. Resmat Ali (P.W. 4) belonged to Na Silbari village, he stated. This witness empathetically deposed that he told the names of the accused persons before P.W. 4. 10. On the other hand, P.W. 4, Reshmat Ali, in his deposition depicted a totally different story to that of P.W. 1. In his evidence, this witness deposed that eight years back, at around 12.00 Noon, while he was at Bus Syndicate at Laharighat, then P.W. 1 came running towards him and told that the deceased had been killed and that he would go to the police station. Then, this witness too, went to the police station along with PW1 and later P.W. 1 led the police to the place of occurrence, but he (P.W. 4) did not go to the place of occurrence. 11. In cross, he specifically mentioned that P.W. 1 (Abdul Kasem) did not tell him the names of the accused persons, who were involved in the killing of the deceased. 12. Such version of P.W. 4 directly confronted with the testimony of P.W. 1, who testified that P.W. 4 was the first person to whom he met and narrated about the incident as well as informed the names of the Appellants/accused persons, who killed the deceased. 13. Now, let us have a look into the injuries so inflicted on the dead body of the deceased. P.W. 6, Dr. Mobidur Rahman, who conducted autopsy on the dead body of the deceased, found the following injuries: (i) A sharp cutting wound on the right back at the posterior auxiliary line which is 5" X 1/2" depth with the sign of active bleeding. (ii) A sharp cutting would below the right scapular about 3" X 1/2" with sign of active bleeding. (iii) There is abrasion at the right side of the sternum. (iv) Sharp cutting would at the left temporal bone which is 4" X whole thickness of the scalp. (ii) A sharp cutting would below the right scapular about 3" X 1/2" with sign of active bleeding. (iii) There is abrasion at the right side of the sternum. (iv) Sharp cutting would at the left temporal bone which is 4" X whole thickness of the scalp. (v) Sharp cutting would at the vertex which is 4" X whole thickness of the scalp. The Doctor in his opinion stated that the cause of death was due to haemorrhage and shock as a result of the injuries sustained by the deceased. 14. A bare perusal of the medical evidence as quoted above and the testimony of the sole eye-witness i.e., P.W. 1 would go to show that medical examination reflected no injury over the abdomen on the person of the deceased. All the five injuries mentioned therein either on the head or at the posterior auxiliary line. There was no whisper of any injury on the abdomen of the deceased. P.W. 1, in his deposition, being the eye-witness explicitly stated that it was Suraj Ali, who stabbed the deceased in his abdomen with a dagger. This piece of evidence of P.W. 1 vis-a-vis the testimony of P.W. 6 (the Doctor) creates doubt in the veracity and genuineness of the testimony of P.W. 1 and the same manifestly reflects a contradiction against the medical evidence. 15. So far as the involvement of the Appellant No. 2, Abdul Rajak is concerned, P.W. 1 stated that it was Rajak who struck the deceased on his head with a 'lathi'. But medical evidence exhibits that all the injuries were of sharp cut wounds except injury No. (iii), which was on the abrasion at the right side of the sternum. 16. That being so, keeping in view the medical evidence, in our considered opinion, the testimony of P.W. 1, the sole eye-witness, could not be accepted to be trustworthy, reliable and convincing. Be it also mentioned herein that in respect of participation of other Appellants, namely, Abdul Matleb and Abdul Hai on the assault of the deceased, the same was not reflected in the deposition of P.W. 1, sole eye-witness of the occurrence. Be it also mentioned herein that in respect of participation of other Appellants, namely, Abdul Matleb and Abdul Hai on the assault of the deceased, the same was not reflected in the deposition of P.W. 1, sole eye-witness of the occurrence. P.W. 1 mentioned that other accused persons hit the deceased with 'lathi' and 'dao' with specific mention of the weapons used in the assault but he failed to indicate the individual participation of these two Appellants with the specific use of weapons so mentioned. 17. In consideration of the above discussion, facts and circumstances of the case in its entirety so unfolded by the prosecution witnesses, we are of the firm opinion that the evidence so adduced by the prosecution particularly the sole eye-witness, P.W. 1 has failed to inspire confidence in order to rope the Appellants in the offence of killing of the deceased. According to us, in such premises, all the four Appellants before us, after the death of Appellant No. 1 (Abdul Gafur) while in jail, are entitled to get the benefit of doubt. Accordingly, we set aside and quash the impugned conviction and sentence of the Appellants rendered in Sessions Case No. 47/96 vide judgment and Order dated 9.4.2003. 18. The Appellants herein be set at liberty forthwith, if they are not required in any other cases. 19. In the result, this appeal succeeds and stands allowed. Send down the L.C.R. forthwith.