By Court.- This appellant as well as one Nemia Devi were charged for committing offence under Sections 341, 323/34 and 302/34 of the Indian Penal Code whereas, five other co-accused who were also put on trial alongwith the present appellant, were charged for the offence under Sections 302/120B of the Indian Penal Code. The learned Trial Court, by the impugned judgment dated 10.10.2003, found this appellant guilty for the offence under Section 302 of the Indian Penal Code for committing murder of Rameshwar Yadav and sentenced him to undergo rigorous imprisonment for life. He acquitted the appellant from the charge under Section 341 of the Indian Penal Code but convicted him for the charge under Section 323 Indian Penal Code also and sentenced him to undergo rigorous imprisonment for six months and both the sentences were ordered to run concurrently. However, the learned Trial Court acquitted the co-accused Nemia Devi from the charge under Sections 302 and 341 of the Indian Penal Code. The rest of the co-accused namely Darshan Mahto, Jugal Mahto, Birju Mahto, Charku Mahto and Banshi Mahto were also acquitted from the charge under Section 302/120B of the Indian Penal Code. It is against this impugned Judgment, the present appeal has been filed by the appellant. I" 2. The prosecution case in short is that a Fardbayan was lodged by the informant Girija Devi (Court Witness NO.1) wife of the deceased Rameshwar Yadav on 30.12.1997 alleging that on 29.12.1997, at about 10:00 A.M., her husband Rameshwar Yadav and his elder brother Ramlal Yadav brought wood from the forest for constructing 'Machan' for storing paddy straw. At 12:00 O'clock, Bhuneshwar Yadav, the present appellant, his mother Nemia Devi and sister Savita Kumari armed with Tangi, Farsa and Lathi respectively, allegedly came there and started hurling abuses. When her husband Rameshwar Yadav (deceased) protested, the appellant Bhuneshwar Yadav said to have given a Tangi blow on his head. His mother Nemia Devi assaulted Bhuneshwar Yadav with Farsa and Savita Kumari assaulted with Lathi. As a result of which, her husband fell down being badly injured. The informant as well as her brother-in-law (Bhainsur) Ram Lal Yadav and sister-in-law (Gotni) Krishna Kumari rushed to save Bhuneshwar Yadav whereupon, the accused persons assaulted all of them causing injures on their heads and on different parts of their body. As a result of which, her husband fell down being badly injured. The informant as well as her brother-in-law (Bhainsur) Ram Lal Yadav and sister-in-law (Gotni) Krishna Kumari rushed to save Bhuneshwar Yadav whereupon, the accused persons assaulted all of them causing injures on their heads and on different parts of their body. According to the informant, her husband Rameshwar Yadav died on the spot and thereafter, the accused pers,ons fled away. The said occurrence was witnessed by Chaman Yadav, Tukani Devi and others. The motive for murder was that a week back, the informant and her family members had brought wood and leaves from the forest and this appellant Bhuneshwar Yadav got apprehended through the Village Committee and for that, a fine of Rs. 40/- was imposed upon them. On the date of occurrence also, the informant and others brought wood from the forest which enraged the appellant. 3. The Police took up the investigation and thereafter, submitted charge-sheet. After the case was committed to the Court of Sessions, charges were framed which the accused persons pleaded not guilty and thereafter, they were put on trial. 4. In order to establish the charges, altogether 13 P.Ws. were examined by the prosecution and the informant Girija Devi was examined as C.W.-1. Two defence witnesses were also examined. The learned Trial Court, on the basis of the oral and documentary evidence adduced in the case, convicted and sentenced the appellant vide the impugned Judgment as already stated hereinabove. 5. The P.W. 3 Doctor, who conducted the post mortem examination over the dead body of the deceased found the following injuries on his person:- Injury No. (i) -Incised wound over left side of head-3" x %" x bone deep. Injury No. (ii)-Lacerated wound on back of left ear-1/2" x 1,4" x skin deep. Injury No. (iii)-Bruise on, right forehead-11/2" x 112". On dissection, dark blood clot haematoma was found on right middle and left side of the subcutaneous tissue of scalp. He further found fracture of left side of parietal temporal bones; fracture of frontal bone; brain clotted blood and haemorrhage. All the injuries were found to be ante mortem in nature and the injury no. (i) -: was caused by sharp cutting weapon, while the rest were found to have been caused by hard blunt substance. He further found fracture of left side of parietal temporal bones; fracture of frontal bone; brain clotted blood and haemorrhage. All the injuries were found to be ante mortem in nature and the injury no. (i) -: was caused by sharp cutting weapon, while the rest were found to have been caused by hard blunt substance. According to the Doctor, the cause of death was shock and haemorrhage due to the above injuries and the time elapsed from the death till post mortem examination was within 36 to 48 hours. 6. Challenging the conviction and sentence passed by the Trial Court, learned counsel for the appellant submitted that according to the statement of prosecution witnesses, namely P.W.1, P.W.2 and C.W. 1, who are the eye witnesses, this appellant is said to have given a Tangi blow on the head of the deceased, whereas co-accused Nemia Devi also gave Farsa blow on his head but curiously enough, only one incised wound has been found on the head of the deceased which may have been caused by this appellant or by Nemia Devi who was also charged under Section 302/34 of the Indian Penal Code, has been acquitted from the said charge; and therefore, the conviction of the appellant for the charge under Section 302 Indian Penal Code cannot be sustained since it has not been established beyond reasonable doubt that the incised wound on the head of the deceased was caused by this appellant. 7. Having heard the learned counsel for the parties and having gone through the records, it appears that the informant C.W. 1, in her evidence in paragraph-3, specifically stated that Bhuneshwar assaulted by Tangi, Nemia Devi assaulted with Farsa and Savita Devi assaulted with Lathi. Bhuneshwar assaulted by Tangi on the head of her husband (deceased) and Nemia Devi also assaulted her husband by means of Farsa. She also stated that Savita assaulted by means of Lathi on the head of her husband and when she alongwith her brother-in-law (Bhainsur) Rani Lal Yadav (P.W. 1) and sister-in-law (Gotni) Krishna Kumari (P.W.-2) rushed to save him, all the three accused persons assaulted all of them causing injuries on their heads and body. 8. She also stated that Savita assaulted by means of Lathi on the head of her husband and when she alongwith her brother-in-law (Bhainsur) Rani Lal Yadav (P.W. 1) and sister-in-law (Gotni) Krishna Kumari (P.W.-2) rushed to save him, all the three accused persons assaulted all of them causing injuries on their heads and body. 8. As already noticed above, we find that only one incised injury has been found on the head of the deceased and the other injuries were lacerated wound situated on the back of left ear and one bruise on right forehead and swelling on back of right ear. Therefore, the injuries found on the persons of the deceased does not tally with the version of the informant. It is also relevant to notice here that though according to the evidence of P.Ws.1 and 2 and C.W. 1, the eye witnesses, they were also assaulted by the three accused persons, but nothing has been brought on record to substantiate the said fact. P.W. 1, in paragraph-10 of his deposition, stated that Krishna' Kumar (P.W. 2) was assaulted by Nemia Devi by means of Farsa on her head due to which she received bleeding injury. Girija Devi (C.W. 1) was assaulted by Nemia Devi by means of Farsa on her head and she also received bleeding injuries. In paragraph-12, he stated that this appellant gave two Tangi blow on the head of the deceased. The above noted statements of the prosecution witnesses is in contradiction to the medical evidence. Though this. witness has stated that he was also assaulted by the accused persons but he has not stated anything about any injury on his person nor anything has been brought on record to substantiate assault on him by the accused persons. 9. P.W. 2 Krishna Devi, who is the wife of P.W. 1, in her examination in chief, stated that Bhuneshwar (appellant) assaulted the deceased by means of Tangi on his head and Nemia assaulted the deceased by means of Farsa and when she alongwith Ram Lal and Girija Devi went to save him, then they were also assaulted and they were treated by the Doctor. 10. Therefore, from the evidence of P.Ws. 1 and 2 and C.W. 1, it comes out that the assault was made on the head of the deceased by this appellant as well as Nemia Devi by means of sharp cutting weapon. 10. Therefore, from the evidence of P.Ws. 1 and 2 and C.W. 1, it comes out that the assault was made on the head of the deceased by this appellant as well as Nemia Devi by means of sharp cutting weapon. If their evidence is relied then there should have been more than one incised injury on the head of the deceased but as already noticed above, only one incised injury has been found on the head of the deceased. It is difficult for us to hold that the incised injury found on the head of the deceased was in fact caused by this appellant. If the prosecution story is believed then it was equally possible that the said incised wound may have been caused by Nemia Devi, who assaulted the deceased by means of Farsa on his head. but Nemia Devi has already been acquitted by the Trial Court for the charges under Section 302/34 of the Indian Penal Code on the basis of the same set of evidence. In such a situation, two yardsticks cannot be adopted for appreciating the evidence of the same prosecution witnesses on whose statements, the other co-accused has been acquitted. The present appellant is also therefore deserves to be given the benefit of doubt. 11. Consequently, this appeal is allowed. The conviction and sentence passed by the Trial Court against the appellant is hereby set aside. The appellant who is in custody is directed to be set at liberty forthwith if not wanted in any other case.