JUDGMENT Sunil Kumar Sinha, J. 1. This appeal is directed against the judgment dated 19.5.93 passed in Sessions Trial No. 206/92 by the Third Additional Sessions Judge, Raipur. 2. By the impugned judgment, the Appellant has been convicted Under Section 302/34 IPC and sentenced to undergo imprisonment for life. 3. The facts, briefly stated, are as under: Deceased-Rajkumar was running a betel shop in Lili-Chowk, Raipur. The case of the prosecution is that on 8.2.92 at about 9.30 p.m., when the deceased was closing his betel shop, the Appellant and another assailant namely Bhuru came there and assaulted the deceased by knife. Dinesh Kumar (PW-1- brother of the deceased) saw the incident and lodged the First Information Report (Ex.-P/1) in police station Purani Basti, Raipur, on which an offence Under Section 307/34 IPC was registered. Later on, the F.I.R. was transferred to police station Azad Chowk, Raipur, where F.I.R. No. 39/92 (Ex.-P/1-A) was registered. The deceased died during the course of his treatment in hospital. The Investigation Officer reached to the hospital, gave notice (Ex.-P/3) to the Panchas and prepared inquest (Ex.-P/4) on the body of the deceased. The dead body of the deceased was sent for post-mortem. The post-mortem examination was conducted by Dr. Arvind Nirulwar (PW-11). The post-mortem report is Ex.-P/10. He noticed multiple incised wounds, including stab wounds, on the body of the deceased and opined that the cause of death was syncope due to haemorrhage and shock on account of multiple injuries caused to the deceased. The injuries were ante-mortem caused by sharp cutting weapon. The death was homicidal in nature. During the course of further investigation, the Appellant was taken into custody and his memorandum statement (Ex.-P/8) Under Section 27 of the Evidence Act was recorded on 20.2.92 and a knife was seized at the instance of the Appellant vide seizure memo Ex.-P/9. The seized articles, including the knife, were sent for their chemical examination to Forensic Science Laboratory, Sagar, from where, a report Ex.-P/12 was received. According to the F.S.L. report, blood stains were found on the cloths of the deceased, whereas, no blood stains were found on the knife allegedly seized from the possessions of the Appellant. According to the F.I.R., lodged by Dinesh Kumar (PW-1 - brother of the deceased), Bhuru @ Ashok Sindhi was the other assailant who was accompanying the Appellant and who also inflicted injuries to the deceased. According to the F.I.R., lodged by Dinesh Kumar (PW-1 - brother of the deceased), Bhuru @ Ashok Sindhi was the other assailant who was accompanying the Appellant and who also inflicted injuries to the deceased. Therefore, Bhuru was also arrested and the case was registered against the Appellant and Bhuru @ Ashok Sindhi and remand was taken for both of them. However, on 15.5.92, the Investigating Officer filed an application before the remand Court for discharging co-accused - Bhuru @ Ashok Sindhi on the ground that in the investigation, it was found that Bhuru was not at all involved in commission of the said crime. On this application, Bhuru was directed to be released by the concerned Magistrate and was discharged from the said offence at the stage of remand itself on 15.5.92. The charge-sheet, therefore, was filed against the Appellant alone and the matter was committed to the Sessions Court, from where, it was received on transfer by Third Additional Sessions Judge, Raipur, who conducted the trial and convicted & sentenced the Appellant as aforementioned. It appears that after conviction of the Appellant in Sessions Trial No. 206/92 on 19.5.93, another charge-sheet was filed against accused- Ikram Ullah Khan in the year 1994. In the said charge-sheet, the prosecution came with the allegations that, in fact, Ikram Ullah Khan was accompanying the Appellant on 8.2.92 and the Appellant & Ikram Ullah Khan were the assailants of the deceased. The said charge-sheet became the subject matter of Sessions Trial No. 272/94 which was conducted by the Second Additional Sessions Judge, Raipur. In the said Sessions Trial, the learned Additional Sessions Judge acquitted accused- Ikram Ullah Khan vide judgment dated 16th February, 2001. 4. In the present matter, the prosecution examined 4 eye witnesses. They are Dinesh Kumar Soni (PW-1), Prashant Sharma (PW-2), Maniram Soni (PW-3) and Rameshwar Prasad Choudhary (PW-6). Rameshwar (PW-6) turned hostile and he did not support the case of the prosecution. Prashant Sharma (PW-2) was disbelieved by the Sessions Judge. However, the learned Sessions Judge relied on the testimonies of Dinesh Kumar Soni (PW-1) and Maniram Soni (PW-3) and held that the Appellant along with another assailant committed murder of the deceased by assaulting him by knifes. 5. Mr. Surendra Singh, learned Sr. Advocate appearing on behalf of the Appellant, argued that the prosecution came with different stories at different point of time. 5. Mr. Surendra Singh, learned Sr. Advocate appearing on behalf of the Appellant, argued that the prosecution came with different stories at different point of time. Even they got evidence to that effect also, therefore, the entire case of the prosecution is under shadow of doubt. He further argued that both the eye-witnesses i.e. Dinesh Kumar Soni (PW-1) and Maniram Soni (PW-3) are the got-up witnesses; there are many discrepancies in their evidence and their testimonies are not reliable to rest the conviction of the Appellant. 6. Mr. Akhil Mishra, learned Dy. Govt. Advocate appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. 7. We have heard the learned Counsel for the parties at length and have also perused the records of the sessions case. 8. According to the F.I.R. (Ex.-P/1) two assailants namely Appellant-Bulthu Pathak and Bhuru participated in commission of crime. This is clear from the contents of the F.I.R. promptly lodged by the brother of the deceased namely Dinesh Kumar (PW-1) who claims to be an eye-witness. On account of this report, the Appellant and Bhuru @ Ashok Sindhi both were arrested. The records of the sessions trial would show that on 27.2.92 a blood stained knife was also seized at the instance of Bhuru @ Ashok Sindhi and the same was also sent for its chemical examination to F.S.L., Sagar through memo Ex.-P/12. This is clear from the contents of Ex.-P/12. This was article-C. According to the F.S.L. report, blood stains were not found on article-C. Upto 15.5.92, the prosecution went on investigation on the line that the Appellant and Bhuru @ Ashok Sindhi were the two assailants. Thereafter on 15.5.92, an application was moved by the Investigating Officer before the remand/committal Court to discharge Bhuru @ Ashok Sindhi because according to him, on the investigation, it was found that Bhuru @ Ashok Sindhi was not at all involved in the said incident. Bhuru @ Ashok Sindhi, therefore, was discharged. Later on, in their further investigation, the prosecution came with the case that, in fact, Ikram Ullah Khan was the person who was involved in the said incident and a charge-sheet was filed against Ikram Ullah Khan in the year 1994. This was the third stand taken by the prosecution in this matter. Bhuru @ Ashok Sindhi, therefore, was discharged. Later on, in their further investigation, the prosecution came with the case that, in fact, Ikram Ullah Khan was the person who was involved in the said incident and a charge-sheet was filed against Ikram Ullah Khan in the year 1994. This was the third stand taken by the prosecution in this matter. It is therefore clear that the prosecution came with different stories at different point of time so far as involvement of the assailants are concerned and the prosecution was not sure about the assailants till the filing of the second charge-sheet against Ikram Uliah Khan. 9. Dinesh Kumar Soni (PW-1) deposed that on the fateful night, he saw that the Appellant and another assailant, whom he does not know by name but he can identify by face, came there on foot and both assaulted his brother by knifes which they were carrying. He took his brother to the police station on a rickshaw and thereafter he took him to D.K. Hospital, Raipur. He had lodged the F.I.R. to the police in D.K. Hospital, Raipur. He identified his signature on the F.I.R. (Ex.-P/1). There are many contradictions in the evidence of this witness. In the F.I.R. (Ex.-P/1), he deposed that the Appellant was accompanied by Bhuru, whereas in his court evidence, he did not take the name of Bhuru and simply deposed that he can identify the other assailant. He was also contradicted by his police case diary statement (Ex.-D/1), where he had taken the name of Bhuru @ Ashok Sindhi. He denied to take the name of Ashok Sindhi in his 161 statement. He was further contradicted on many other points. In appreciation, we find that initially, he had involved Bhuru @ Ashok Sindhi as one of the assailant, but later on he left him and he only made statement against the Appellant. It is on the report of this witness and his 161 statement, Bhuru @ Ashok Sindhi was made an accused, but later on the prosecution found that he was not at all involved in crime in question and for that reason Bhuru was got discharged by the prosecution in the above manner on 15.5.92. It is on the report of this witness and his 161 statement, Bhuru @ Ashok Sindhi was made an accused, but later on the prosecution found that he was not at all involved in crime in question and for that reason Bhuru was got discharged by the prosecution in the above manner on 15.5.92. This makes two things clear, first that even according to the prosecution, Bhuru @ Ashok Sindhi was falsely implicated by PW-1 in F.I.R. and in his 161 statement; and the second, that the prosecution got the evidence of false seizure of blood stained knife at the instance of Bhuru @ Ashok Sindhi and sent it for chemical examination to F.S.L, Sagar. Dinesh Kumar (PW-1) very specifically deposed that he lodged the F.I.R. in D.K. Hospital, Raipur, whereas, the contents of the F.I.R. (Ex.-P/1) would show that it was not in form of dehatinalishi but it was in the prescribed format of taking a report Under Section 154 Code of Criminal Procedure and the above report was lodged in the police station-Purani Basti, Raipur. The above contradictions and variance in the evidence of this witness creates a serious doubt on his testimony. It also creates doubt on the conduct of the prosecution and the investigation, in which the false seizure of weapon from the possession of Bhuru @ Ashok Sindhi was made alleging that it was stained with blood like substance. The tendency of this witness to falsely implicate an innocent person makes his evidence full of doubts. 10. Maniram Soni (PW-3) deposed that "On the fateful night he was present near the place of occurrence and he saw that the Appellant was assaulting the deceased by gupti and knife. He very clearly deposed that another person was also with the Appellant. The assailants ran away after assaulting the deceased. Thereafter the deceased was taken to the hospital". He was confronted with his case diary statement (Ex.-D/3). In his case diary statement, he had stated that the Appellant was accompanied by Bhuru @ Ashok Sindhi, who was also armed with knife and who also assaulted the deceased by knife. Whereas, in the court evidence he omitted the name of Ashok Sindhi. Even he went to the extent to say that he does not know Ashok Sindhi. In his case diary statement, he had stated that the Appellant was accompanied by Bhuru @ Ashok Sindhi, who was also armed with knife and who also assaulted the deceased by knife. Whereas, in the court evidence he omitted the name of Ashok Sindhi. Even he went to the extent to say that he does not know Ashok Sindhi. When he was faced with above case diary statement, he could not explain the said contradiction and said that these things have been wrongly written in his case diary statement. This was a material contradiction in the evidence of this witness which makes him unreliable. 11. It was argued before us by learned Counsel for the State that the evidence of above two eye-witnesses are intact against the Appellant, therefore, the conviction of the Appellant on the basis of testimonies of these two witnesses was justified. We are unable to accept this argument in light of the above discussion. In our considered view, the evidence of these two witnesses were not fully reliable and they were the infirm witnesses. In Muluwa S/o Binda and Ors. v. The State of Madhva Pradesh AIR 1976 SC 989, it was held that the evidence of an infirm witness does not become reliable merely because it has been corroborated by a number of witnesses of the same brand; for, evidence is to be weighed not counted. In the present case, we do not find the overall conduct of the witnesses to be credible and trustworthy. 12. On appreciation of entire evidence of these two witnesses and the above conduct of the prosecution, which changed the face of its case at many occasions, we are of the opinion that the conviction based on the testimonies of these 2 witnesses cannot be sustained. The testimonies of these witnesses are highly suspicious and the Sessions Judge erred in law in relying on their testimonies to rest the conviction of the Appellant. 13. For the foregoing reasons, the appeal is allowed. The conviction and sentence awarded to the Appellant Under Section 302/34 IPC are set-aside. The Appellant is acquitted of the charges framed against him. It is stated that the Appellant is on bail. His bail bonds are cancelled and surety stands discharged.