JUDGMENT Shrivastava, J. -- 1. This judgment shall also govern the disposal of connected Criminal Appeal No.716 of 2008 (Babulal v. State of MP.), filed on behalf of appellant Babulal. 2. This reference has been referred by learned trial Court to this Court under section 318 of the Code of Criminal Procedure, 1973. The learned trial Court by impugned judgment dated 2.9.2008 has found accused Virendra to be guilty for the offence punishable under section 302/34 of IPC and the case has been referred to this Court to pass necessary order. 3. Co-accused Babulal has filed a separate appeal (Criminal Appeal No.716/08) assailing the judgment of conviction and order of sentence passed against him by learned II Additional Sessions Judge, Dabra in STNo.230/06 convicting him under section 302/34 of IPC, thereby sentencing him to suffer life imprisonment and fine of Rs.500/-. Since both the matters have arisen from a common judgment, hence, they are being disposed of by this common judgment. 4. In brief the case of prosecution is that Ratan Singh on 13.6.2006 brought his uncle Moolchand (hereinafter referred to as "the deceased") in injured condition in his tractor to the Police Station Dabra. He was accompanied by Ballu, Nawab Singh and Chandrabhan. The complainant Ratan Singh lodged the first information report that the deceased was not having any son and he happened to reside with the complainant. Today after eating the meals, the deceased was sleeping on the platform. At that juncture appellant Babulal, who is in inimical terms with the deceased for last three years, arrived there having an axe in his hand. The son of Babulal, Virendra alias Gunga was having a farsa in his hand and Dhanvanti Bai was having lathi in her hand also arrived there. Accused Babulal with an intention to kill the deceased, dealt axe blow on his head and thereafter accused Virendra in order to kill the deceased, dealt two farsa blows on the head of the deceased, as a result of which deceased fell down, thereafter Dhanvanti Bai dealt lathi blows, which landed on the right hand of the deceased. It is the further case of the prosecution that Dhanvanti Bai was saying to her husband and son that the deceased may not escape and be should be killed. At the time of incident, Chandrabhan, Ballu, Nawab Singh, etc. were present and they have seen the incident. 5. It is the further case of the prosecution that Dhanvanti Bai was saying to her husband and son that the deceased may not escape and be should be killed. At the time of incident, Chandrabhan, Ballu, Nawab Singh, etc. were present and they have seen the incident. 5. It is also said that few months prior to the incident, accused Virendra alias Gunga caught hold the hand of the wife of Jayendra, who is the younger brother of complainant. A Panchayat was also assembled in the village and the matter was compromised and therefore the report of that incident was not lodged. Further it has been stated in the report that by basing the said enmity, all the three accused persons having axe, farsa and lathi caused injuries to the deceased. 6. On the basis of the abovesaid report lodged by the complainant, initially the case under section 307 read with section 34 of IPC was registered. The deceased who was injured at that time was sent to the hospital at Dabra, where he was attended by Dr. A.K. Saxena, who found seven injuries on the person of the deceased, out of which injuries No.1, 4,6 and 7 were found to be caused by hard and blunt object while injuries No.2, 3 and 5 according to the doctor, were caused by sharp edged weapon. 7. Thereafter, the deceased was referred for his further treatment to Gwalior. It is said that at Gwalior Dr. R.R. Chaturvedi (PW 13) after examining the deceased on 14.6.2006 at 1: 10 hours found him to be dead. The intimation of the death of the deceased was given by Dr. R.R. Chaturvedi on telephone to Police Station, Kampoo and on the basis of said telephonic information, the Head Constable of Police Station Kampoo registered Marg Case No.268/06 under section 174 of CrPC. The dead body of the deceased was sent for post-mortem and Dr. J.N. Soni conducted the post-mortem of the deceased, the details of which are mentioned in his post-mortem (Ex.P-20). 8. On the death of the deceased, the case which was registered under section 307/34 of IPC, was altered to section 302/34 of IPC. 9. After the investigation was over, a charge-sheet was submitted in the competent Court, which on its turn committed the case to the Court of Session and from where it was received by the trial Court for the trial. 10. 9. After the investigation was over, a charge-sheet was submitted in the competent Court, which on its turn committed the case to the Court of Session and from where it was received by the trial Court for the trial. 10. The learned trial Judge on the basis of allegations made against the accused persons, framed charges punishable under section 302/34 IPC, which they denied and requested for trial. On the imputation of the charge framed against accused Virendra, there is a note endorsed by learned trial Judge that he is dumb and he with the aid of gesture denied the charge. 11. In order to prove the charges, prosecution examined as many as 20 witnesses and placed EX.P-I to P-21 the documents on record. The defence also examined one witness namely Pista Bai (DW I). 12. The learned trial Court after appreciating and marshalling the evidence came to hold that Dhanwanti Bai has committed the offence under section 323 of IPC only and eventually she has been convicted for three months RI. Accused Dhanvanti Bai did not file any appeal. The State of M.P. has also not assailed her acquittal under section 302/34 of IPC. 13. The learned trial Judge held that the charge under section 302/34 of IPC is proved against Babulal as well as against Virendra. The learned trial Judge further came to hold that accused Virendra is not of unsound mind and understands the proceedings of the Court, though he is deaf and dumb, therefore referred this reference under section 318 of CrPC to pass necessary orders. 14. Babulal has also filed connected Criminal Appeal No.7l6/08, assailing the judgment of his conviction and order of sentence passed by learned trial Court convicting him under section 302/34 IPC and sentencing him to suffer life imprisonment. 15. We have heard Shri A.S. Yadav, learned counsel for the accused Virendra Singh. Shri Sushil Goswami, learned counsel appearing for appellant Babulal adopted the arguments of Shri A.S. Yadav, Advocate. We have also heard Shri C.S. Dixit, learned P.P. for respondent-State. 16. Having heard learned counsel for the parties, we are of the view that reference cannot be accepted since the charges against accused Virendra under section 302/34 of IPC are not proved and because charges under these sections are also not proved against appellant Babulal of connected Criminal Appeal No. 176/06, both of them are entitled for acquittal. 17. 16. Having heard learned counsel for the parties, we are of the view that reference cannot be accepted since the charges against accused Virendra under section 302/34 of IPC are not proved and because charges under these sections are also not proved against appellant Babulal of connected Criminal Appeal No. 176/06, both of them are entitled for acquittal. 17. In the present case, prosectuion examined four persons as eye-witnesses; they are Chandrabhan (PW2), Ashok (PW3), Guddi Bai (PW4) and Ratan Singh Rawat (PW6), who is also the author of the FIR. Out of these four eye-witnesses, Chandrabhan (PW2), has not supported the case of prosecution and was declared hostile. The learned trial Court disbelieved the statement of Guddi Bai (PW4) and has held that she is not an eye-witness (see para 19 of the impugned judgment). Thus, only two witnesses which remained are Ashok (PW3) and Ratan Singh (PW6). We will now examine the evidence of these two witnsses. 18. Ratan Singh (PW6), who is also the author of the FIR, has stated that the deceased was his uncle and was residing with him because he (deceased) was not having any son. On the date of incident, after eating the food, deceased was sleeping on the Chabutara (Platform). Thereafter, on account of enmity, Babulal carrying axe in his hand, Virendra with farsa and Dhanvanti Bai having lathi arrived there. According to him, Babulal dealt one axe blow on the head and thereafter Virendra also gave two blows of farsa on the head of the deceased and Dhanvanti Bai dealt lathi blow on the right hand of the deceased. He" has further stated that the incident has been wines sed by Guddi and Ashok, apart from this witness. He has further stated that accused Virendra Singh had teased Guddi three years prior to this incident, as a result of which he was beaten by the deceased. Further he has stated that 15 days earlier to this incident, accused Virendra caught hold Guddi. According to him, the deceased was brought to the police station and thereafter he was sent to the hospital, from where he was referred to Hospital at Gwalior. The doctor at Gwalior after examining the deceased, declared him to be dead. In cross-examination, he has admitted that there is enmity between the parties. 19. According to him, the deceased was brought to the police station and thereafter he was sent to the hospital, from where he was referred to Hospital at Gwalior. The doctor at Gwalior after examining the deceased, declared him to be dead. In cross-examination, he has admitted that there is enmity between the parties. 19. According to Ashok (PW3), there is enmity between the parties, because, three years prior to the incident, accused Virendra alias Gunga had teased Guddi Bai, who is her Mami (anut), but in the Panchayat the matter was settled. According to this witness, on hearing the scream of the deceased, who was sleeping on the platform, this witness reached to the place of occurrence and saw that Babulal was having axe and Virendra alias Gunga was having farsa and Dhanvanti Bai was having lathi and they were causing injuries to the deceased. At the spot, Nawab, Ratan Singh, Chandrabhan, Guddi Bai arrived and on seeing these persons, accused persons ran away from the place of occurrence. The deceased, who was seriously injured at that time, was brought to the police station in a tractor, where Ratan Singh lodged the report. This witness is also saying that accused Virendra Singh was having farsa and Babulal was having an axe and these persons were causing injuries by the weapons, which they were carrying 20. It be seen that abovesaid witnesses namely; Ratan Singh and Ashok are thickly related through blood to the deceased. Admittedly, parties are in inimical terms as both the witnesses are saying that they are in inimical terms and therefore by keeping this view in our mind, we are bound to scrutinize their evidence minutely in order to take out the grain from the chaff. 21. The deceased was firstly referred to hospital at Dabra where he was examined by Dr. A.K. Saxena (PW20). According to this doctor, he found following injuries on the person of the deceased: (1) Black eye. (2) Incised wound oblique 1-1/2"x 1/2" on right fronto parietal region. (3) Incised wound 3/4"x 1/4" on mid parietal region. (4) One lacerated wound on the left parietal region cross shaped 1"xl/4". (5) One incised wound 3/4"xl/2" on right parietal region. (6) One lacerated wound 1/2"xl/4" on the right side of head at parietal region situated at the distance of I" behind wound No.5. (7) Swelling on the right shoulder and forearm. (4) One lacerated wound on the left parietal region cross shaped 1"xl/4". (5) One incised wound 3/4"xl/2" on right parietal region. (6) One lacerated wound 1/2"xl/4" on the right side of head at parietal region situated at the distance of I" behind wound No.5. (7) Swelling on the right shoulder and forearm. According to the MLC doctor, injuries No.1, 4, 6 and 7 were caused by hard and blunt object, while injuries No.2, 3 and 5 were caused by sharp edged weapon. This doctor also referred the deceased to Gwalior for further treatment. The above said injuries sustained by deceased are shown in MLC report of this doctor (Ex.P-21). In cross-examination, this MLC doctor has admitted that he examined the deceased in ordinary manner. Further he has stated that injury No.1 may come on account of accumulation of blood and it may also come by fall. In very specific words, this witness has stated that in the injuries No.2 and 3, the bone was not cut. This doctor is firmly saying that injuries No.2, 3 and 5 will not come by hard and blunt object, but it will come only by sharp edged weapon. 22. The deceased, after his MLC was done, was referred to Gwalior for further treatment and in the hospital at Gwalior, he was declared to be dead by the doctor. In the post-mortem, Dr. J.N Soni (PWI9) found following injuries on the person of the deceased: (1) Three lacerated wound having 3 stitches each present (lower) 6 cm. above the end of right eyebrow 2x0.5 cm. each lower two 1.5 cm. apart and upper one cm. scalp deep, treansversely placed. (2) 3 lacerated wound 10 cm. above the mid of left eyebrow, transversely placed upper one (post) 1.5 long middle 2.5 cm. and lower 2.0 cm. long 0.5 cm. wide each and lower 1.5 cm. and upper 1 cm. apart from middle one having 3 stitches each. (3) 3 contusions present below medial end of clavicle 2.5x0.5 cm. each reddish blue in colour, upper 1 cm. and lower 1.5 cm. apart. (4) Contusion right arm upper third 3x3 cm. underneath bone fractured reddish blue. (5) Abrasion mid of right arm laterally lxl cm. (6) Abrasion left elbow I x1 cm. and 4 cm. below 2x1 cm.. vertical. On opening the skull, autopsy surgeon found multiple small fractures. each reddish blue in colour, upper 1 cm. and lower 1.5 cm. apart. (4) Contusion right arm upper third 3x3 cm. underneath bone fractured reddish blue. (5) Abrasion mid of right arm laterally lxl cm. (6) Abrasion left elbow I x1 cm. and 4 cm. below 2x1 cm.. vertical. On opening the skull, autopsy surgeon found multiple small fractures. The scalp was found to be ecchymosed underneath, external injury subdural and sub arachnoid. According to the autopsy surgeon, the cause of death was due to cardio respiratory failure, as a result of head injury and injury was caused by lohangi like object and they were homicidal in nature. According to autopsy surgeon, injuries No.1, 2 and 3 may come by an object like lohangi, injury No.4 may come by hard and blunt object and injuries No.5 and 6 may come on account of collusion or by the impact of some rough substance. In very specific words, the autopsy surgeon is saying that he did not find any incise wound on the person of the deceased. 23. The autopsy surgeon has categorically stated that the deceased had died due to cardio respiratory failure, as a result of head injury caused by lohangi like object but according to MLC doctor, on the head, two injuries were caused by sharp edged weapon. Thus, what type of injury has been sustained on the head of the deceased, there is conflicting opinion of the two doctors. 24. The testimony of MLC Dr. A.K. Saxena (PW20) indicates that he did not find any bony injury on injuries No.2 and 3, which are mentioned in his MLC report. According to MLC doctor, the bone of the head was not cut. But the autopsy surgeon has found multiple fractures in the head. Not only this, he found subdural and sub arachnoid haemorrhage present allover the brain and more underneath fractures and therefore on examining the deceased minutely, when he found multiple fractures on the head, he opined that the injuries on head have been caused by hard and blunt object. Because if a hard and blunt object is dealt with a great force, its impact may result into multiple fractures on the head. The MLC doctor did not find the bone of the skull of the deceased to be cut. Because if a hard and blunt object is dealt with a great force, its impact may result into multiple fractures on the head. The MLC doctor did not find the bone of the skull of the deceased to be cut. According to us, the opinion by MLC doctor was given in his report, because the deceased was seriously injured and he was to be referred to Gwalior Hospital and therefore in casual manner, the MLC doctor must have examined the deceased when he was brought in injured condition without going into the minute details. The autopsy surgeon found all the injuries to be anti-mortem and therefore it cannot be said that the multiple fractures on the head of the deceased were post-mortem fractrures. If the sharp edged weapon is forcefully inflicted on the head, definitely the bone will cut and its impact would not result into multiple fractures, but, if the hard and blunt object is used as weapon and blow is dealt with full force on the head, the impact will result into multiple fractures. The autopsy surgeon categorically found multiple fractures on the head of the deceased and therefore according to us in causing the injuries to the deceased hard and blunt object was used. 25. Apart from this, the external haemorrhage in lacerated wounds is as a rule, not extensive, owing to the fact that the arteries are not cut evenly, but are torn across irregularly so as to facilitate clotting of the blood. In lacerated wounds of the scalp the temporal arteries often spurt as freely and forcefully as when cut cleanly. These arteries being firmly bound are unable to contract, and may, therefore, spurt and continue to bleed for a long time. The tissues are torn and the skin beyond the seat of injury is ecchymosed and the underlying bones are likely to be fractured. (See Modi's Medical Jurisprudence and Toxicology, Twenty-second Edition, page 341). At the cost of repetition we would like to go again through the post-mortem report, in which the doctor has found following injury on the skull of the deceased. (See Modi's Medical Jurisprudence and Toxicology, Twenty-second Edition, page 341). At the cost of repetition we would like to go again through the post-mortem report, in which the doctor has found following injury on the skull of the deceased. "scalp ecchymosed, multiple small fractures of skull present in underneath external injury subdural and sub arachnoid haemorrhage present all over the brain more underneath site of fracture." In the same book at page 342, the Modi has opined that occasionally on wounds produced by a blunt weapon or by a fall, the skin splits and may look like incised wounds when inflicted on tense structures covering the bones, such as scalp, eyebrow, iliac crest, skin, perineum etc. or by a fall on the knee or elbow. Thus, according to us, looking to the injuries on the head, the MLC doctor opined the lacerated wound to be incised wound because it may also look like incised wound. Since in detail, the autopsy surgeon has opined that the injuries caused on the head were on account of hard and blunt object like lohangi and specifically it has been stated by him that he did not find any incised wound on the person of the deceased, therefore, it is difficult to hold that the accused Virendra alias Gunga or Babulal inflicted farsa or axe blow respectively on the head of the deceased. 26. When there is contradictory evidence of ocular and medical to each other and while appreciating variance between medical evidence and ocular evidence, oral evidence "of eye-witnesses is having more credential value because medical evidence is basically an opinion of expert only. But if the Court finds inconsistency in the evidence given by eye-witnesses, which is altogether and totally inconsistent to that given by autopsy surgeon, then evidence is appreciated in different perspective. In the present case, according to the eye-witnesses namely; Ratan Singh (PW6) and Ashok (PW3), accused Virendra was having farsa and Babulal, was having axe. According to them these two accused persons dealt the blows of these weapons on the head of the deceased. According to Ashok (PW3), Virendra dealt two blows of farsa and Babulal gave one axe blow on the head of the deceased. But no incised wound has been found by the autopsy surgeon. According to them these two accused persons dealt the blows of these weapons on the head of the deceased. According to Ashok (PW3), Virendra dealt two blows of farsa and Babulal gave one axe blow on the head of the deceased. But no incised wound has been found by the autopsy surgeon. The Supreme Court in Hallu v State of M.P. [1974 JLJ 628= AIR 1974 SC 1936 ], in para 11 has held that: "The post-mortem report repared by Dr. N. Jain shows that on the body of Jagdeo were found three bruises and a hematoma. On the body of Padum were found four lacerated wounds and two bruises. According to the eye-witnesses the two men were attacked with lathis, spears and axes but that clearly stands falsified by the medical evidence. Not one of the injuries found on the person of Jagdeo and Padum could be caused by a spear or an axe. The High Court however refused to attach any importance to this aspect of the matter by saying that the witnesses had not stated that "the miscreants dealt axe blows from the sharp-side or used the spear as a piercing weapon". According to the High Court axes and spears may have been used from the blunt side and therefore the evidence of the eye-witnesses could safely be accepted. We should have thought that normally when the witness says that an axe or a spear is used there is no warrant for supposing that what the witness means is that the blunt side of the weapon was used. If that be the implication it is the duty of the prosecution to obtain a clarification from the witness as to whether a sharp-edged or a piercing instrument was used as a blunt weapon." The accused of the above said case was having axes and spears. High Court opined that blunt side of those weapons were used and therefore this Court believed the testimony of eye-witnesses. The Supreme Court by reversing the judgment of this Court has categorically held that when the witness says that an axe or a spear is used there is no warrant for supposing that what the witness means is that the blunt side of the weapon was used. The Supreme Court by reversing the judgment of this Court has categorically held that when the witness says that an axe or a spear is used there is no warrant for supposing that what the witness means is that the blunt side of the weapon was used. If that be the implication it is the duty of the prosecution to obtain a clarification from the witness as to whether a sharp-edged or a piercing instrument was used as a blunt weapon. In the present case also' as stated by the eye-witnesses, Babulal and Virendra used axe and farsa respectively and therefore normally it should be inferred that they used the blade side and it was for the prosecution to clarify from the witnesses that the blunt side of these weapons were used by the accused persons. I 27. In Thaman Kumar v. State of Union Territory of Chandigarh [ (2003)6 SCC 380 ], in para 16 the Supreme Court has held that the conflict between oral testimony and medical evidence can be of varied dimensions and shapes. There may be a case where there is total absence of injuries which are normally caused by a particular weapon. In that situation, the Supreme Court held that, it may legitimately be inferred that the oral evidence regarding assault having been made from weapon is not truthful. The decision of Thaman Kumar (supra), has been placed reliance in recent decision by the Supreme Court in Kapildeo Mandal and others v State of Bihar [2008(1) CAR (SC)36]. In this decision also the Supreme Court in para 12 has categorically held that the medical evidence is to the effect that there were no firearm injuries on the body of the deceased, whereas eye-witnesses version is that the accused-appellants were carrying firearms and the injuries were caused by the firearms. In such a situation and circumstance, the medical evidence will assume importance while appreciating the evidence led by the prosecution, by the Court and will have priority over the ocular version and can be used to repel the testimony of the eye-witnesses as it goes to the root of the matter having an effect to repel conclusively the eye-witnesses version to be true. Further Supreme Court has held in the same para that the medical evidence when specifically rules out the injury claimed to have been inflicted as per the eye-witnesses version, then the Court can draw adverse inference to the effect that the prosecution version as being put forth before the Court, is not trustworthy. By applying the aforesaid principle in the present case we find that in the present case also the medical evidence completely rules out the injuries claimed to have been inflicted by farsa and axe as per eye-witness version, therefore, we can hold that their evidence is not trustworthy. The Supreme Court in the same para 12 further came to hold that in the light of the fact that there was a previous enmity between the parties and the eye-witnesses examined are related to the deceased are interested witnesses, therefore it was held by the apex Court that the case of prosecution is full of doubts. In the present case also as we have discussed herein-above, Ratan Singh (PW6) and Ashok (PW3) are thickly related through the blood to the deceased and enmity between the parties is admitted, therefore, according to us, it raises heavy doubt about the implication of accused Virendra Singh as well as of Babulal in this incident. 28. For the reasons stated herein-above, we are unable to accept the reference made by the learned trial Judge to this Court under section 318 of Code of Criminal Procedure. We hereby hold that accused Virendra alias Gunga as well as appellant Babulal are entitled for benefit of doubt and therefore, the conviction of these two accused namely; Virendra alias Gunga as well as appellant Babulal is hereby set aside and they are acquitted from the charges punishable under section 302/34 of IPC. These accused persons are in jail, they be set at liberty forthwith if not required in any other case. 29. The reference made by the learned trial Court is hereby not accepted and the connected Criminal Appeal No.716/06 filed by appellant Babulal is hereby allowed.