JUDGMENT I.A. Ansari, J. 1. This appeal is directed against the judgment and order, dated 22.7.2008, passed, in Sessions Case No. 221(D-M) of 2006, by the learned Sessions Judge, Darrang, Mangaldoi, convicting the two accused-appellants under Section 302, IPC read with Section 34, IPC and sentencing each of them to suffer imprisonment for life and pay fine of Rs. 10,000 and, in default of payment of fine, suffer rigorous imprisonment for a period of six months. 2. The case of the prosecution is, in brief, thus: On 19.1.2005, at about 8-00 a.m., at Udalguri town, near the office of Ambagaon Co-operative Society, the accused-appellants gave blows with an iron rod on the head of Paresh Das and caused his death. On the basis of an FIR, lodged, in this regard, by Deepika Das (PW1), wife of the said deceased, Udalguri Police Station Case No. 13/2005, under Section 302/34, IPC, was registered against the two accused-appellants. During the course of investigation, police held inquest over the said dead body and, on completion of investigation, laid charge sheet against the two accused-appellants under Section 302/34, IPC. 3. During trial, a charge, under Section 302, IPC read with Section 34, IPC, was framed against the accused-appellants to which the appellants pleaded not guilty. In support of their case, prosecution examined altogether seven witnesses. The learned trial court also examined two witnesses as court-witnesses, whereupon the two accused-appellants were examined under Section 313, CrPC. In their examination aforementioned, both the accused-appellants denied that they had committed the offence alleged to have been committed by them, the case of the defence being that of total denial. No evidence was adduced by the defence. Having held the two accused-appellants guilty of the offence charged with, learned trial court convicted them accordingly and passed sentence against them as mentioned above. Aggrieved by their conviction and the sentence passed against them, the two convicted persons have preferred this appeal. 4. We have heard Mr. J.M. Choudhury, learned senior counsel, appearing on behalf of the accused-appellants, and Mr. D. Das, learned Additional Public Prosecutor, Assam. 5. It may be noted, at the very outset, that PW6 is the doctor, who had conducted post mortem examination; on 20.1.2005, on the dead body of Paresh Das, and his findings were as follows: (i) Abreaded cut injury on the left parietal area with haematoma in the left parietal bone. D. Das, learned Additional Public Prosecutor, Assam. 5. It may be noted, at the very outset, that PW6 is the doctor, who had conducted post mortem examination; on 20.1.2005, on the dead body of Paresh Das, and his findings were as follows: (i) Abreaded cut injury on the left parietal area with haematoma in the left parietal bone. Depressed fracture of left parietal bone 4 cm x 2 cm depressed with haematoma above the bone with injure of membrance below with haematoma causing displacement of brain tissues. (ii) Peritoneal cavity was filled with blood therein, rupture of spleen was also found. (iii) Abreaded cut injury present in the left arm. (iv) Abreaded cut injury behind left ear. 6. PW6 has also deposed that all the injuries mentioned above were ante mortem and caused by blunt weapon. In his cross-examination, PW6 has clarified that the injuries aforementioned could not have been caused by lathi or rod. 7. What, thus, transpires from the evidence of PW6 is that the said deceased had sustained as many as four injuries as deposed to by PW6. There was, however, no evidence to the effect as to whether the injuries, so caused, were sufficient, in the ordinary course of nature, to cause death. 8. Bearing in mind what is indicated above, when we turn to the oral evidence adduced by the prosecution, what attracts our attention, most prominently, is that out of the 7(seven) witnesses examined by the prosecution, PW6 is the doctor, whose evidence we have already discussed above, PW7 is the Investigating Officer and, out of the remaining witnesses, PW2, PW3 and PW4 were declared hostile by the prosecution and were accordingly cross-examined. Nothing was, however, elicited from the cross-examination of PWs 2, 3 and 4 by the prosecution, which could prove incriminating against the accused-appellants. The evidence, given by PW2, PW3 and PW4, do not, admittedly, implicate the present appellants. We have been, thus, left with the evidence of PW2 and PW5. 9. Nothing was, however, elicited from the cross-examination of PWs 2, 3 and 4 by the prosecution, which could prove incriminating against the accused-appellants. The evidence, given by PW2, PW3 and PW4, do not, admittedly, implicate the present appellants. We have been, thus, left with the evidence of PW2 and PW5. 9. While considering the evidence of PW5, brother of deceased Paresh Das, it may be noted that according to his evidence, at the time of the occurrence, he (PW5) was working in his garage, his garage being located at a distance of about two furlong from the place of occurrence and, on his being informed by his niece that Paresh Das had been assaulted by the two accused-appellants, he (PW5) rushed to the place of occurrence and, on finding Paresh Das lying in a pool of blood with injuries on his head, he (PW5) carried Paresh Das on a thella (pull-cart) to the hospital at Udalguri. PW5 has also deposed that while Paresh Das was being carried to the hospital by him (PW5), Paresh Das, on being asked by him (PW5), told him that Ram Bayan and Madhab Bayan (i.e., the two appellants) had assaulted him with lathi on his head. 10. Close on the heels of the evidence of PW5 is the evidence of the widow (PW1) of the said deceased. In her evidence, PW1 has deposed that the occurrence took place near the office of the Ambagaon Cooperative Society, which is located on the western side of her house intervened by 3/4 houses. According to her evidence, while she was cooking rice, she heard alarm raised by others, she came out of her house and saw both the present appellants causing hurt on her husband, Paresh Das, by iron rod and, on seeing assault on her husband, she interfered, whereupon accused Ram Bayan fled away, but accused Madhab Bayan struck her husband by an iron rod on his head, her husband fell down and, thereafter, she, along with others, brought her husband to Udalguri hospital and from the said hospital, her husband was referred to the Gauhati Medical College Hospital, but due to paucity of money, she could not take her husband to the Gauhati Medical College Hospital and at about 2-3 p.m., on the very day of the occurrence, her husband succumbed to his injuries. 11. 11. In the light of the evidence, given by PW1, if the evidence of PW5 is considered, it becomes clear that while PW5 claims that deceased Paresh Das had stated to PW5, while being carried to hospital in injured condition, that Rain Bayan and Madhab Bayan had assaulted him on his head by lathi and it was as a result of the injuries, sustained by Paresh Das at the hands of the two accused-appellants by lathi that Paresh Das died, PW1 claims that she had seen her husband, Paresh Das, being assaulted by the two accused-appellants by iron rod. 12. What is, now, necessary to point out is that the Investigating Officer (PW7) has deposed that he had examined PW5 as a witness for the inquest and that the statement of PW5 had not been recorded in respect of the facts of the case. It is, however, equally important to note that the categorical assertion of the Investigating Officer, at the trial, was that PW5 did not state anything before him as regards the occurrence. 13. The fact that PW5 had not made any statement to the police to the effect that Paresh Das had named the two present appellants, as assailants, is of great significance. At the time of hearing of this appeal, it has been pointed out, on behalf of the prosecution, that since the Investigating Officer had examined PW5 only as an inquest witness, it might be possible that PW5 had not made any statement to the police as regards the said oral dying declaration of the deceased. 14. While considering the above submissions, made on behalf of the prosecution, it needs to be pointed out that PW5 was examined as a witness and since his (PW5's) own brother had died, and had he (PW5) really been told by the said deceased, before his death, that the two appellants had assaulted him (deceased), there was no reason for him not to mention before the police about the dying declaration, which PW5 claims, at the trial, to have been made to him (PW5) by his brother in injured condition. It is also of great significance to note that PW5 did not, admittedly, state before the Investigating Officer that he had been informed by his niece that his (PW5's) brother, Paresh Das, had been assaulted by the accused persons. It is also of great significance to note that PW5 did not, admittedly, state before the Investigating Officer that he had been informed by his niece that his (PW5's) brother, Paresh Das, had been assaulted by the accused persons. Thus, in the absence of any assertion having been made, in the past by PW5, though he was examined as a witness by the Investigating Officer, that the deceased had told him as to who the assailants were, PW5's assertion, made, for the first time, at the trial, that his brother had named the two appellants, is, in our firm view, wholly unsafe to place reliance upon. 15. What is, now, of utmost importance to note is that according to the evidence of PW5, his brother, Paresh Das, had reported to him that the two appellants had assaulted him by lathi on his head; whereas the evidence, given by PW1, who claims to be an eye-witness, is that she had seen both the accused persons assaulting her husband by iron rod and, in fact, on her intervention, while accused Ram Bayan fled away, the co-accused, Madhab Bayan, struck her husband by an iron rod on his head. 16. The question, now, is as to whether the evidence of PW1, that she had seen her husband being assaulted by the two appellants by iron rod, can be safely relied upon. 17. While considering the evidence of PW1, it needs to be pointed out that her statement, as recorded by the Investigating Officer, was to the effect that she had seen both the accused persons causing hurt on her husband with blow and fist and left him on the path. Thus, the previous statement, given by PW1, did not describe any weapon, far less iron rod, in the hands of the two accused; rather, her statement was to the effect that the two accused had assaulted her husband with blow and fist and left him on the path. 18. Coupled with the above, PW1 stated before the police that the villagers had informed her that both the accused had assaulted her husband and left him on path and, on being so informed, she rushed to the place of occurrence and found her husband lying half-dead on the path. 18. Coupled with the above, PW1 stated before the police that the villagers had informed her that both the accused had assaulted her husband and left him on path and, on being so informed, she rushed to the place of occurrence and found her husband lying half-dead on the path. Had she been a truthful witness and had she really seen her husband being assaulted by the two accused by iron rod, as she, now, claims, there was no reason for her to rush to the place of occurrence only after she had been informed by her co-villagers that her husband had been assaulted by the accused-appellants and left her husband causing serious injuries on his person. 19. Moreover, in her evidence before the court, PW1 claims that having been attracted by the alarm raised, she came out of her house and she saw both the accused-appellants assaulting her husband. As against the evidence, so given by her, her previous statement before the investigating Officer was to the effect that she had been informed by her co-villagers that the accused-appellants had assaulted her husband and left him on the path after causing injuries on his person. Furthermore, notwithstanding the fact that PW1 claims that when she intervened, accused Ram Bayan fled away and accused Madhab Bayan struck her husband on his head by iron rod, the Investigating Officer has proved that PW1 had not stated before him that while she intervened, accused Ram Bayan fled away and accused Madhab Bayan struck her husband on his head by an iron rod. 20. In the face of the evidence, discussed above, it becomes clear that the evidence, given by PW1, implicating the two accused persons, is full of major contradictions and wholly irreconcilable assertions. Her evidence cannot, therefore, be held believable or, at least, safe to place reliance upon. At any rate, PW1 is not a wholly reliable witness and even if we do not reject her evidence as wholly unreliable, her evidence would fall in the category of those witnesses, who are neither wholly reliable nor wholly unreliable. The evidence of a witness, who is neither wholly reliable nor wholly unreliable, such as, PW1, cannot be relied upon unless corroborated by credible evidence, direct or circumstantial. 21. What is, now, necessary to note is that the learned trial court, as already indicated above, examined two witnesses as court-witnesses. The evidence of a witness, who is neither wholly reliable nor wholly unreliable, such as, PW1, cannot be relied upon unless corroborated by credible evidence, direct or circumstantial. 21. What is, now, necessary to note is that the learned trial court, as already indicated above, examined two witnesses as court-witnesses. These two witnesses were Kanak Chandra Bharali (CW1) and Lalita Das (CW2). Both these witnesses have given evidence to the effect that they had seen the two accused persons assaulting Paresh Das by iron rod. 22. While considering the evidence of CW1 and CW2, it needs to be pointed out that these two witnesses were not examined by the Investigating Officer. Their names did not, admittedly, surface during the course of the investigation. Even at the trial, neither PW1 nor any other witness, produced by the prosecution, referred, in any manner, to CW1 and CW2. There was, thus, no foundation laid for examination of CW1 and CW2 as witnesses of fact or as eye-witnesses of the occurrence. We notice from the records that the said two persons were examined as court-witnesses on the basis of a petition, filed by PW1, whereby she claimed that there were sufficient eye-witness of the occurrence, but the police had not examined them and that the witnesses were Kanak Chandra Bharali (CW1) and Lalita Das (CW2). The two persons, named as witnesses in the said petition, were, despite objections raised by the defence, examined by the learned trial court, as court-witnesses. 23. In the backdrop of the fact that the names of CW1 and CW2 had not surfaced as witnesses of fact and the fact that these two persons were examined at the behest of PW1, whose evidence we have already discussed and held unsafe to place reliance upon, the mere fact, that CW1 and CW2 have withstood the test of cross-examination, could not have been made a ground for placing complete reliance on their evidence in the absence of any other cogent, believable, safe and reliable evidence on record implicating the two accused-appellants. In fact, the occurrence had taken place as far back as on 1.9.2005 and it was exactly after two years that the petition, seeking to examine CW1 and CW2, was filed by the widow of the said deceased, whose evidence, as we have already pointed out above, is wholly unsafe to place reliance upon. 24. In fact, the occurrence had taken place as far back as on 1.9.2005 and it was exactly after two years that the petition, seeking to examine CW1 and CW2, was filed by the widow of the said deceased, whose evidence, as we have already pointed out above, is wholly unsafe to place reliance upon. 24. Thus, when the evidence of CW1 and CW2 is found unsafe to place reliance upon, they cannot be treated to have corroborated the evidence of PW1, who has already been held to be, if not wholly unreliable, a witness, who falls in the category of those witnesses, who are neither wholly reliable nor wholly unreliable. It needs to be borne in mind that an infirm witness, such as, CW1, cannot be taken to have corroborated the evidence of any other inform witness, such as, CW2 or PW1. Thus, the unsafe evidence of CW1 and CW2 cannot strengthen the weak and unsafe evidence of PW1. 25. Situated, thus, we find that the prosecution could not adduce any such evidence, which could make the court hold confidently that the two accused-appellants had assaulted the said deceased or caused his death. The findings of guilt, reached against them, cannot, therefore, be sustained. 26. In the result and for the reasons discussed above, this appeal is allowed. The conviction of the appellants and the sentence, passed against them is hereby set aside. The appellants are directed to be set at liberty forthwith unless they are required to be detained in connection with any other case. 27. Send back the LCR. Appeal allowed