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2011 DIGILAW 48 (GAU)

Thandu Mia v. State of Assam

2011-01-19

A.C.UPADHYAY, I.A.ANSARI

body2011
JUDGMENT Arun Chandra Upadhyay, J. 1. In all 10 (ten) accused/Appellants above named were put on trial, in Sessions Case No. 48 of 2004, for commission of offence under Sections 147/148/323/324/341/302/149 IPC. On the conclusion of trial the learned Addl. Sessions Judge (FTC), Barpeta, by his judgment and order, dated 29.08.2007, convicted accused/Appellants No. 1 and No. 2 under Sections302/149/341/147/148 IPC and sentenced each of them to undergo rigorous imprisonment for life with fine of Rs. 2,000/- each, in default to undergo further rigorous imprisonment for two (2) months each, for commission of offence under Sections 302/149 IPC. However, no separate sentences were imposed on the Appellant Nos. 1 and 2, for commission of other offences. 2. By the same judgment and order, the learned trial Court convicted the Appellants Nos. 3, 4, 5, 6, 7, 8, 9 and 10 under Sections 147/148/323/149 IPC and sentenced them to undergo rigorous imprisonment for one (1) year, for offence under Sections 147/148 IPC and for two (2) months each for commission of offence under Section 323/149 IPC. Apart from convicting and sentencing the Appellants as aforesaid, the learned trial Court also convicted accused Appellants Nos. 6 and 10, respectively, under Section 324 read with Section 149 IPC and sentenced each of them to suffer RI for six (6) months. 3. We have carefully perused the entire record including the impugned judgment and order. We have heard Mr. M. U. Mahmud, learned Counsel appearing for the Appellants and Mr. D. Das, learned Addl. Public Prosecutor, representing the State of Assam. 4. The case of the prosecution, as unfolded at the trial, may, in brief, be described thus: On 8.4.1999 at about 7 a.m. in the morning when Idrish Ali, uncle of informant (PW-1) was in his paddy field, all of a sudden, Thandu Mia, Sahidul Islam, Major Ali, Fazal Hoque, Musstt. Sayeda Begum, Musstt. Rejia Khatun, Musstt. Tara Bhanu, Musstt. Haliman Nessa and Musstt. Noor Nehar, attacked and assaulted Idrish with "dao", "lathi" and "dagger". In the attack, Thandu Mia assaulted the deceased with a "lathi" and Sahidul Islam hacked the deceased with a "dao". As a result of assault Idrish Ali died at the spot. Sayeda Begum, Musstt. Rejia Khatun, Musstt. Tara Bhanu, Musstt. Haliman Nessa and Musstt. Noor Nehar, attacked and assaulted Idrish with "dao", "lathi" and "dagger". In the attack, Thandu Mia assaulted the deceased with a "lathi" and Sahidul Islam hacked the deceased with a "dao". As a result of assault Idrish Ali died at the spot. After the said incident, Hasen Ali (P.W. 1), i.e., the first informant and his mother advanced towards the place of occurrence together with Abdul Bashir (PW-3), Tayeb Ali (PW-2) and Hakim Uddin (PW-7) in a run to save Idrish Ali. The accused/Appellants allegedly inflicted injuries by means of 'dao' and 'lathi' upon all the witnesses. 5. The informant Hasen Ali, nephew of the deceased lodged a written 'Ejahar' before the I/C, Barvitha O [out Post, under Baghbor P. S. On receipt of the said 'Ejahar', the I/C Barvitha made a G. D. entry No. 100 dated 8.4.1999 and forwarded it to the O.C. Baghbor P.S., for registration of a case. Accordingly, the O.C. Baghbor P.S. registered Barpeta P.S. Case No. 52 of 1999, under Sections 147/148/341/325/326/302 IPC and launched investigation. 6. On completion of the investigation, the Investigating Officer laid charge sheet against the accused Appellants alleging commission of offence under Sections 147/148/341/325/326/302IPC. 7. During trial, learned trial Count framed formal charge under Section147/148/323/324/341/302/149 IPC, against the accused. On reading over and explaining the charge afore noted, all the accused pleaded not guilty and claimed to be tried. The prosecution examined as many as 11 (eleven) witnesses including the informant (P W-1), Investigation Officer I. O. (PW-10), and the doctor (PW-8), who carried out the post mortem examination of the dead body of the deceased. 8. The learned trial Court on completion of the examination of the prosecution witnesses, examined the accused as per provision of Section 313 Code of Criminal Procedure. The accused in their examination aforementioned, denied that they had committed the offence alleged against them. No evidence was adduced by the defence. On completion of the trial, the learned trial Court convicted and sentenced the accused Appellants as aforesaid giving rise to this appeal. 9. Learned Counsel for the Appellants vehemently contended that the trial Court miserably failed to appreciate the relevant law and facts in proper perspective and consequently accepted only the incriminating part of the prosecution evidence, which ultimately caused miscarriage of justice. 9. Learned Counsel for the Appellants vehemently contended that the trial Court miserably failed to appreciate the relevant law and facts in proper perspective and consequently accepted only the incriminating part of the prosecution evidence, which ultimately caused miscarriage of justice. According to the learned Counsel for the Appellants the conviction recorded by the trial Court is not based on facts and the circumstances revealed by the prosecution witnesses. 10. Learned Counsel for the Appellant drawing the attention of the Court to various segments of the evidence on record, adduced by the prosecution, submitted that the prosecution evidence is full of contradictions and unbelievable evidence adduced by the highly interested relatives of the deceased, which has only augmented the suspicion into the entire prosecution story. Learned defence counsel laid stress on the fact of non examination of any independent witness, even spite of acknowledging their presence at the place of occurrence. 11. On the other hand, learned Additional P.P. contended the prosecution has been able to demonstrate the charges against the Appellants beyond all reasonable doubt and the appeal preferred by the Appellants, being devoid of merit, is liable to be dismissed. 12. In order to appreciate the arguments advanced on behalf of the Appellants as well as State Respondents, it would apposite to discuss the evidence of the material witnesses of the prosecution, which is relevant for the purpose of deciding this appeal. 13. We begin with the evidence of Medical Officer, Dr. Bhupesh Choudhury (PW-8), who carried out the post mortem examination on 9.4.1999 with reference to GD. entry No. 100 dated 8.4.1999 and found the following- External Appearance - A male dead body of average built neither emaciated nor decomposed, eyes are closed, mouth open partially, no rigor mortis presence lacerated injury on left shoulder and one abrasion to left leg with crash injury to head. Brain matter seen on injury site. On examination of cranium and spinal canal: Multiple fracture of skull bone (front and both temporal; bone). Membrane ruptured (Sic). Brain tissue seen on and around the injury site. Also blood seen within the brain matter. On examination of abdomen: stomach contains presence of food particles. Small intestine contains presence of partially digested food particles. The injuries were anti-mortem in nature. Opinion: The cause of death is due to shock and haemorrhage as a result of injury sustained. Brain tissue seen on and around the injury site. Also blood seen within the brain matter. On examination of abdomen: stomach contains presence of food particles. Small intestine contains presence of partially digested food particles. The injuries were anti-mortem in nature. Opinion: The cause of death is due to shock and haemorrhage as a result of injury sustained. Ext.4 is the P.M. report and Ext.4(1) is my signature. 14. Dr. Bhupesh Choudhury PW-8, in cross examination precisely explained that neither the lacerated nor the abrasion injury sustained by deceased could have been the cause of death of the deceased, nor such injuries could be caused by a "dao" blow. PW-8, further clarified that the crash injury on the head of the dead body of the deceased could not have been caused by the stick (loru) stated to have been used by the Appellants. The kind of injury sustained by the deceased also could not be caused by stabbing with a 'dao'. Analyzing the injuries sustained by the deceased, PW-8, clarified that in order sustain the kind of injury caused on deceased, a blunt and heavy weapon is required. However, such injury cannot be caused, if the person sleep or lay parallel on the ground. PW-8, further opined that though he had not mentioned the size of lacerated injury and abrasion on the person of the deceased in his report, but has categorically confirmed that he had not found any stab injury, by a dagger, on the person of the deceased, during post mortem of the dead body. 15. Though the medical evidence cannot always be used as a benchmark for testing the authenticity of the ocular evidence and though, in a given case, when there is a conflict between the ocular evidence and the medical evidence, the Court may ignore the medical evidence, if it finds the ocular evidence trustworthy, safe and reliable. However, it needs to be seen that when there is a disagreement between the medical evidence and the eye-witnesses account of the occurrence, the medical evidence cannot be discarded unless it is either proved that the medical evidence on record is incorrect and untrue or it is established that the eyewitnesses’ account of the occurrences is correct. In the case before us, there is nothing to specify that the medical evidence on record suffers from hollowness or incorrectness. In the case before us, there is nothing to specify that the medical evidence on record suffers from hollowness or incorrectness. It is, therefore, essential to determine if the description of the occurrence given by the witnesses can be treated reliable so that the medical evidence on record, which reflects to the contrary, can be ignored. 16. Our quest for an answer to the above question compels us to marshal the evidence of the eye witnesses to the occurrence, to ascertain with certainty as to how consistent and reliable they are and to examine whether there is major incongruity between the medical evidence and the eye witnesses account. 17. Now, while considering this feature of the trial, it would be pertinent to discuss the evidence of the witnesses, who claimed to be eye witnesses to the occurrence. 18. PW-1, Md. Hasen Ali, stated in his deposition that on 8.4.1999, in the morning at about 7 A.M. while he was working in his paddy field, his uncle Idrish Ali (deceased) came to the field to have a look at his cultivation. Soon after Idrish reached his land, the accused Thandu hit him on his head by means of bamboo "lari" (a small stick to drive a bullock forward.) Thereafter rest of the accused persons came to the place of occurrence in a body armed with "dao", lathi and dagger. PW-1, further stated that accused Saidul inflicted Idrish Ali in the head with a "dao" and other accused persons assaulted Idrish Ali with lathi. When PW-1 raised hue and cry and offered resistance at the place of occurrence, accused Saidul inflicted a cut blow on his right shoulder with a "dao" and accused Nur Islam hit him on the back with lathi. On hearing his outcries, his mother Alladee (PW-4), his brother Hakimuddin (PW-7) and his cousins Tayeb Ali and Bashid and his aunt, arrived at the place of occurrence. The accused above named assaulted all the witnesses aforesaid with lathi and dagger. PW-1 stated that the deceased died at the place of occurrence. Since there was a hue and cry, the neighbouring people also gathered there after which the accused persons fled away from the scene. After the incident, the injured were taken to Kalgachia Hospital for treatment. After coming from the hospital PW-1, lodged 'Ejahar' Ext.1, written by Samad Master at Barvita Police Out Post. 19. Since there was a hue and cry, the neighbouring people also gathered there after which the accused persons fled away from the scene. After the incident, the injured were taken to Kalgachia Hospital for treatment. After coming from the hospital PW-1, lodged 'Ejahar' Ext.1, written by Samad Master at Barvita Police Out Post. 19. From a close reading of the above description of the occurrence given by PW-1 it appears that at the time of occurrence, labourers were also working in the land of Nazimuddin situated adjacent east to the land belonging to the deceased Idrish Ali. However, apparently no attempt was made to examine the labourers as witnesses PW-1, further stated in his cross examination that when accused Thandu had hit and felled the deceased, there were other men at the place of occurrence and clarified that the deceased Idrish died soon after he fell down on the ground. According to PW-1 accused Saidul had inflicted cut injury on the head of the deceased with a "dao", while the deceased was lying on the ground, however, according to PW- 8, the Doctor, the kind of injury on the head of the deceased could have been possible in a sleeping posture. When accused Saidul, had inflicted 'dao' blow on the head of the deceased, PW-1 reached near the deceased in a run from his field and offered resistance. PW-1 further stated in his cross examination that accused Nur Islam had inflicted cut injury on the leg of deceased Idrish with a dagger and all the remaining accused assaulted him, as a result of which Idrish had sustained bleeding injuries all over his body and the blood had spilled on the ground at the place of occurrence as well as on the wearing apparels of Idrish. Keeping in mind the above affirmation of PW-1, when we turn to the evidence of PW- 8 (doctor), who had held post-mortem examination, on the dead body of the deceased, we notice conspicuous divergence of ante mortem injuries and the weapon of assault. The post mortem report submitted by PW-8 did not vouchsafe the ocular testimony of the witnesses. 20. According to PW-1 his family members and other witnesses had arrived at the place of occurrence and saw the accused persons beating PW-1. The post mortem report submitted by PW-8 did not vouchsafe the ocular testimony of the witnesses. 20. According to PW-1 his family members and other witnesses had arrived at the place of occurrence and saw the accused persons beating PW-1. PW-1 further stated that the dead body of the deceased was pulled away by accused Thandu, Nur Islam and Saidul to the land of Mahammad Ali, which was seen by the neighbouring people. However, no neighbouring witness was examined by the prosecution. 21. According to PW-1, all the remaining eyewitnesses came to the place of occurrence, when PW-1 offered resistance by raising hue and cry. Keeping in mind the above assertion made by PW-1, if resistance was offered after the deceased had fallen on the ground, on being beaten by all the accused persons present at the place of occurrence, in that case arrival of other eyewitnesses also at the place of occurrence, simultaneously to see the accused persons assaulting the deceased, appears to be barely credible. Viewed thus, it becomes crystal clear that the quality of evidence given by PW-1 is not of the kind that can override the medical evidence on record, which, if we may reiterate, contradict the description of occurrence given by PW-1. Apparently, according to PW-1, by the time other witnesses had arrived at the place of occurrence, the deceased was already lying on the ground due to alleged beating by all the accused persons. If that be so, other witnesses could not have seen the occurrence. 22. Now, from a close reading of the above description of the occurrence it appears PW-1 belied his own statement by deposing in cross that he had sustained only one injury on his back, caused by accused Saidul with a "dao". However, injury report of PW-1 proved by the doctor does not support his oral testimony. As per the medical report, it appears that PW-1 had sustained swelling injuries on his left fore arm, left frontal head and right shoulder. 23. However, when looking on the testimony of PW-1, we find that he had sustained cut injuries on his back but without cutting/penetrating the shirt, which he was wearing at the relevant time. 24. Interestingly, Dr. Nazirul Islam (PW-9) in his cross examination clarified that the injury caused on the person of Hasen Ali (PW-1), cannot be caused by any sharp object. 24. Interestingly, Dr. Nazirul Islam (PW-9) in his cross examination clarified that the injury caused on the person of Hasen Ali (PW-1), cannot be caused by any sharp object. These contradictions in the statement of PW-1 and the medical witness (PW-9) tends to confuse and give a wrong signal in respect of truthfulness of the statement made by PW.1 in respect of the injury sustained by him 25. However, PW-4 stated in her deposition that Hasen Ali (PW-1) was injured by means of a dagger. Apparently, the medical report of PW-1 and the statement of eye witnesses and the evidence given by PW-1 do not support the injury sustained by him on his person. Prosecution could not offer any explanation to the aforesaid anomalies and contradictions in the evidence of witnesses. 26. PW-1 in his re-examination proved the material Exbt-1, i.e. 'Lori' which was seized by police in his presence. According to the prosecution witness Lori/Loru was one of the weapons of assault used by the accused in the incident. But according to the medical witness, PW-8, Material Exbt-1, cannot be the weapon of assault for the injuries sustained by the deceased. 27. Turning to the evidence PW-10 i.e. investigating officer, we notice that Hasen Ali (P. W. 1) in his previous statement did not state before PW-10 that at the time of occurrence he was working in the field. According to PW-10, PW-1 did not state before him that accused Thandu had hit deceased Idrish on his head with a lari and accused Saidul had hacked him with dao in the right shoulder and accused Nur Islam had hit him in the back with lathi. 28. PW-2, Tayeb Ali, son of late deceased Idrish Ali stated that he was studying at his residence at the time of occurrence. At about 7 a.m., Hasen Ali (PW-1) cried out from the northern side of the house by saying "uncle is being killed, you people come forward". Having heard the outcry, PW-2 came out from his house together with his elder brother Basir Ali (PW-3) and his mother Tarifan Nessa (PW-5) in a run. After having come out from his residence, PW-2 saw accused Thandu hitting his father Idrish on the head with a 'Halowa lari' (a stick to drive bullock forward while ploughing etc.) as a result of which his father fell down. After having come out from his residence, PW-2 saw accused Thandu hitting his father Idrish on the head with a 'Halowa lari' (a stick to drive bullock forward while ploughing etc.) as a result of which his father fell down. When his father (deceased) fell down accused Saidul Islam hit him in the head with a "dao" and the other accused persons, in a body had beat him with "dao", dagger and 'lari' causing injury on his person. 29. PW-2 further stated that when he advanced to offer resistance, accused Fazal cut him in the head with a "dao". Other accused persons Sahida, Rejea, Tarabhanu, Nur Nehar and Haliman hit him on his back with lathi. When PW-2 reached near the place of occurrence, he found that his father was dead. After the incident, PW-2 was taken to Kalgachia PHC, for treatment and was interrogated by police about the occurrence. Creating further confusion in the prosecution story, PW-2 stated in his cross- examination that he did not see any injury on the person of his father Idrish. The prosecution did not come forward to explain the above situation. 30. What resolved itself from the above discussion is that if the evidence of PW-2 is taken to be true, PW-1 had raised the hue and cry after having seen the alleged incident of assault by the accused on the person of the deceased. Therefore, even if PW-2 was alarmed by the uproar raised by PW-1, PW-2 could not have reached the occurrence of assault in a flash of moment to witnesses every thing in details. As admitted by PW-1, by the time he had raised hue and cry, the deceased was lying on the ground following the assault made by all the accused persons. Therefore, if we closely look onto the testimony of PW-2, it appears, unless video replay of the scene of occurrence was played, PW-2 reached the place of occurrence. This in our opinion appears to be improbable in the facts and circumstances of the case. 31. Similarly, PW.3, who claimed himself to be eyewitness to the occurrence stated in his deposition that he was studying at his residence at the time of occurrence, when PW-3 heard PW-1 yelling 'Basir, Basir' from the northern side. This in our opinion appears to be improbable in the facts and circumstances of the case. 31. Similarly, PW.3, who claimed himself to be eyewitness to the occurrence stated in his deposition that he was studying at his residence at the time of occurrence, when PW-3 heard PW-1 yelling 'Basir, Basir' from the northern side. PW-3 came out in a run on hearing the shouting of PW-1 and saw accused Thandhu hit his father in the head with a lari (a stick to drive forwards the bullocks while ploughing). PW-3 also saw accused Saidul cut the deceased with "dao". When PW-3 reached near the place of occurrence, he was allegedly assaulted by Haliman Nessa with a "lathi" and the other accused persons hit his father with lathi, as a result of which his father fell down on the ground. PW-3 further stated that the accused persons dragged the dead body of his father to their land which is situated nearby. 32. PW-3, further stated that he had sustained injury on his head in the occurrence and was treated at Kalgachia Hospital. PW-3 also explained that the female accused persons had assaulted his brother Tayeb Ali on his back and head with lathi. Mother of PW-3, Tarifun and 'Jethi' (father's elder brothers' wife) had followed him to the place of occurrence. In his cross examination, PW-3, clarified that the place of occurrence is about two bighas away from their house and in between the place of occurrence and his house there is a pond. The pond is surrounded by bamboo, betel nuts and plantain groves. PW-3 further clarified in his cross examination that at the time of occurrence they had jute cultivation in their field and the jute plants were about 2 to 3 feet tall. According to PW-1, PW-3 could not be present at the time of occurrence. Apparently, above description of the place of occurrence, makes it improbable for a person to get a direct view of the happenings at the place of occurrence from the house of PW-3. 33. Contradicting his own statement in examination in chief, PW-2 stated that the lathi with which Thandu had hit his father was 2 ft. long with a circumference of two inches. 33. Contradicting his own statement in examination in chief, PW-2 stated that the lathi with which Thandu had hit his father was 2 ft. long with a circumference of two inches. Whereas all other witnesses, who claimed to be eye witnesses stated that the deceased was assaulted by a 'Lori' @ 'Loru' i.e. a small stick to drive forwards the bullocks while ploughing. Very interestingly, PW-2 heard PW-1 Hasen shouting 'uncle is being killed you people come'. However, PW-3 heard Hasen shouting 'Basir, Basir'. Contradicting the statement of other witnesses P.W.2 stated that there was chili cultivation at the place of occurrence. PW-2 in his cross-examination stated that he had seen accused Thandu assaulting his father with lathi on his head from near his house. However, in his cross-examination PW-2 himself admitted that the place of occurrence is not visible from his house. PW-2 further stated that he did not notice, who was holding what kind of weapon. 34. PW-3, stated that PW-1 had gone to the field in a run by saying that there had been a commotion in the field. Therefore, PW-3 could not have reached the place of occurrence prior to PW-1. If we closely scrutinize the testimony of PW-1 and PW-3 we find that even PW-1 reached the place of occurrence after the incident of alleged assault on the deceased. Consequently, despite the fact that PW-3 stated about other witnesses, who had seen the occurrence of assault on the person of the deceased, but his statements to that effect do not find corroboration from other witnesses. 35. PW-10, the investigating officer in his cross examination clarified that P.W.3 did not state before him during his previous statement under Section 161 that he had seen Thandu hit his father in the head with lathi; that Halimon Nesa had hit him in the head; and that the accused persons had dragged the dead body of his father to their land, which apparently is a major contradiction in the testimony of P.W. 3. Apparently, evidence of PW-3 does not seem to be trustworthy in view of the contradictions indicated therein above. 36. If we go by the description of the place of occurrence as given by PW-3, then the place of occurrence is not immediately visible from the residence of Basir PW-3, which is situated two 'bighas' away from the place of incident. PW-4 Musstt. 36. If we go by the description of the place of occurrence as given by PW-3, then the place of occurrence is not immediately visible from the residence of Basir PW-3, which is situated two 'bighas' away from the place of incident. PW-4 Musstt. Alladi Nessa, sister-in-law of the deceased unlike other witness stated that having heard the uproar raised by the deceased Idrish in the field, she came out from the house and saw accused Thandu and Nur Islam beating Idrish with lathi. Thus, PW 4, contradicted the statement of PW-1 in material particulars by refuting the claim of P. W. 1 to be the 1st person to raise hue and cry. According to PW-4 Hakimuddin (PW-7) had offered resistance to the accused persons, and while doing so (PW-7) was also assaulted by the two accused persons, after which PW-4 advanced towards the place of occurrence and then accused Mazar Ali, Sahidul and Fazal had assaulted her. PW-4 stated that deceased Idrish sustained injuries in the head and neck and died at the cultivation field itself. PW-4 also stated that she sustained injuries in her forehead and hand and her son PW-7 had sustained injuries on his head and ear. PW-4 stated that she was under medical treatment for 15 days, which was not corroborated by the medical witness, who had examined her in the hospital. 37. After hearing the commotion at the cultivation field, PW-4 stated to have come along with other witnesses to the place of occurrence. But after they came out from their house to the place of occurrence, the accused persons had left the place of occurrence. PW-4 further clarified that at the time of occurrence, jute cultivation of Idrish was about 3 to 4 ft. tall. Coupled with the above, what can also not be ignored is that, not a single witness was examined by the prosecution to lend support to the assertion of the fact of raising of alarm by the deceased. From the above statement made by PW-4 it is quite apparent that the witnesses could not have seen the occurrence and at the most they reached the place of occurrence to find the dead body of the deceased lying on the ground. 38. According to PW-4 injuries sustained on her forehead, was caused by 'Lori'. From the above statement made by PW-4 it is quite apparent that the witnesses could not have seen the occurrence and at the most they reached the place of occurrence to find the dead body of the deceased lying on the ground. 38. According to PW-4 injuries sustained on her forehead, was caused by 'Lori'. Keeping in view what is indicated above, when we turn to the evidence of PW-9, we find that the medical witness, who had examined her injuries, contradicted the statement of PW-4 and stated that the injuries on the frontal head, sustained by PW-4 were caused by sharp weapon. In her cross-examination PW-4 stated that Idrish (deceased) had sustained injury on the neck. On the other hand, as per the medical report, the deceased did not sustain any injury on his neck. Because of what have been discussed and pointed out above, we find it frightfully unsafe and too dangerous to place implicit reliance on the evidence of PW 4, particularly, when her evidence remains uncorroborated by any direct or circumstantial evidence. Situated thus, it is clear that the evidence of PW 4, cannot be made sole basis for conviction of the present Appellants, nor can the evidence on record, when considered, as a whole, can assertively establish that the accused-Appellants were the ones, who were present at the place of occurrence. 39. Mustt. Tarifon Nessa, PW- 5 in her deposition stated that on hearing a commotion, she came out from her house. She saw accused Thandu beating her husband with a 'Lori' and accused Sahidul was hitting her husband in the head with "dao". PW-5 further stated that Thandu, Nur Islam, Mazar Ali, Sahidul and Fazal also had beaten her husband, as a result of which her deceased husband sustained injuries on his body and died at the place of occurrence itself. The defence proved the contradictions in her statement made before the investigating officer during investigation, PW-10, the investigating officer in his cross examination clarified that PW-5 did not state before him that accused person, Thandu had hit Idrish with 'lathi' and Sahidul had hit with a 'dao'. 40. Therefore, the above statement of PW-5 cannot be relied on to rope in the accused. Very surprisingly PW-5 saw 3 to 4 injuries on the chest of the deceased caused by dagger, which is contrary to the medical report and the inquest report. 40. Therefore, the above statement of PW-5 cannot be relied on to rope in the accused. Very surprisingly PW-5 saw 3 to 4 injuries on the chest of the deceased caused by dagger, which is contrary to the medical report and the inquest report. PW-5 further confirmed that the dead body was brought to their residence after the occurrence. 41. In her cross examination, PW-5 stated that the place of occurrence is about 2 kms away from her house. PW-5 further clarified that though there is a pond near the house but in between the place of occurrence and her house there are no trees. Contradicting the statement of other witnesses PW-5 stated that she together with Alladee (PW-4), Tayeb (PW-2), Hasen (PW-1) and Hasimuddinhad come out from their house and could see beating of her husband by the accused immediately after coming out from the house and also could see her husband falling down on the ground after being beaten by the accused persons. The statement of fact made by PW-5, do not inspire confidence. If PW-5 was at her residence together in the company of other witnesses, as stated by her, she could not have seen the occurrence as the place of occurrence which was at distance of 2 kms from the house. If we go by her own statement it would not have been possible for PW- 5 to have seen the occurrence from a distance of 2 kms. This position was not clarified by the prosecution by re-examining PW-5, to clarify the distance from the house of PW-1 to the place of occurrence. 42. According to PW-7 Hakimuddin, when Idrish Ali (deceased) reached the place of occurrence, there was a commotion. On hearing the commotion, PW-7 along with other witness came out from their house and rushed to the place of occurrence in a run. On arrival, at the place of occurrence, they found accused Thandu, Saidul Islam, Fazar Ali, Nurul Islam and Mazar Ali beating Idrish (deceased) with lathi, "dao" and dagger. PW-7 further deposed that he along with Hasen Ali, Taibuddin, Basir Ali and Alladee Nessa, aunt Tarabanu tried to save Idrish and while doing so they also sustained injuries on their persons. PW-7 stated that he had sustained cut injury on his head and right ear on being assaulted by Mazar Ali and at that time the deceased was lying on the ground. PW-7 stated that he had sustained cut injury on his head and right ear on being assaulted by Mazar Ali and at that time the deceased was lying on the ground. 43. PW-7 further clarified in his examination in chief that accused Saidul Islam had dealt several blows on the head of the deceased with a "dao" and accused Thandu had hit the deceased with 'lari'. Again describing the place of occurrence, PW-7 contradicted the statement of other witnesses by saying that there is a road in between the place of occurrence flanked by two ponds on each side. On the north of one of the ponds and on the east of the other there are trees. On the other hand, the deposition of PW-7, regarding the injuries sustained by the deceased, is not corroborated by the medical witness and the postmortem examination report. 44. The Investigating Officer (PW-10) in his deposition clarified that the place of occurrence is about 1 furlong away from the house of Idrish (deceased). PW-7, who was admittedly at his residence when he heard the uproar, could not have covered a distance of one furlong in a flash of moment to witness vividly everything that had happened before his arrival at the place of occurrence, unless, of course, a repeat video clip of the incident was shown to him. On the top of it, the evidence of PW-7 to the effect that on hearing the commotion all the eyewitnesses, had come out from their house and had gone to the place of occurrence is not corroborated by other eyewitnesses to the occurrence. If the statement of PW-7 is believed it would imply that the so called eyewitnesses reached the place of occurrence only to find the dead body of Idrish and none of the witnesses could have seen the incident of assault upon the deceased. 45. Turning to the FIR, Exbt. 1, we find that upon hearing the uproar raised by P W-1, the accused persons fled away from the place of occurrence, but in his cross-examination PW-1 stated that the accused Thandu, Noor Islam, Sahidul dragged away the dead body of the deceased to the land of Mohammad Ali. 46. 45. Turning to the FIR, Exbt. 1, we find that upon hearing the uproar raised by P W-1, the accused persons fled away from the place of occurrence, but in his cross-examination PW-1 stated that the accused Thandu, Noor Islam, Sahidul dragged away the dead body of the deceased to the land of Mohammad Ali. 46. P W-1, the informant of this case was working in his paddy field when the accused -Appellant No. 1 assaulted the deceased and felled him down on the ground, which was seen by other witnesses. But in his cross-examination PW-1 contradicted his own statement to say that when accused-Appellant No. 1 had assaulted his uncle Idrish none else was present at the place of occurrence. 47. PW 1 also stated that at the time of incident there was jute cultivation on the land of the deceased but according to PW 2 there was chilly cultivation and PW 7 denied the existence of any type of cultivation at the place of occurrence. 48. PW-1 claims to be the person, who first raised uproar on seeing the incident. According to PW-1, only on hearing his outcry, other witnesses had come out. According to PW -1, hue and cry was raised by him after the alleged incident of beating and felling down of the deceased was over, therefore, all other witnesses, who had come to the occurrence later on, could not have seen the occurrence, as there could not have been any repeat show of the occurrence. 49. If we analyse the evidence of PW-1 we find that other people of the locality also came to the place of occurrence and on seeing the local people the accused fled away from the scene. But PW -7 by disagreeing with his own statement revealed that village people took away the accused persons from the place of occurrence. 50. If we turn to the evidence of PW-1 we find that he stated in his deposition that while he was working in the paddy field the incident had taken place; but this statement is contradicted by PW-3 and PW-7 in their cross examination, who stated that while they were at home at the time of occurrence, they heard some 'hulla' in the field and only then PW-1 (informant) along with PW-7, his mother, aunt, Taibuddin and Basir had gone towards the paddy field. What becomes clear from the above discussion is that the evidence of the so called eye witnesses to the occurrence is required to be wholly discarded as the evidence does not inspire confidence at all. Interestingly, all the eyewitnesses to the occurrence are very close relations of the deceased. The exaggerations and embellishments in the statement of the witnesses, who are very close relatives of the deceased, are so inextricably interwoven that it became impracticable on our part to disengage the truth from the statement of the witnesses. In such a situation motive of the accused-Appellants to commit the offence, which assumes importance to ascertain and determine the authorship of the offence alleged, is also conspicuously absent. 51. On the other hand, the local villagers, who according to the eye witnesses witnessed the occurrence, were not at all examined by the prosecution. There is no explanation by the prosecution for non-examination of the local villagers as witnesses, which in the facts and circumstances coupled with the unstable testimony of eye witnesses makes the prosecution case extremely doubtful. 52. As a matter of fact absence of proof of motive does not render the evidence unreliable. However, in a case where there is clear proof of motive for commission of crime it affords added support to the finding of the Court that the accused was guilty of offence charged with. 53. In the instant case, the prosecution witness did not allege any kind of motive for commission of offence. Hon'ble Supreme Court in Suresh Chandra Bahri v. State of Bihar 1995 Supp (1). SCC 80 observed that sometimes motive plays an important role and becomes a compelling force to commit a crime. The relevant extract of the above decision of the Apex Court in Suresh Chandra Bahri v. State of Bihar (supra) reads as follows: 21. At the very outset we may mention that sometimes motive plays an important role and becomes a compelling force to commit a crime and therefore motive behind the crime is a relevant factor for which evidence may be adduced. A motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act but with illegal means with a view to achieve that intention. A motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act but with illegal means with a view to achieve that intention. In a case where there is clear proof of motive for the commission of the crime it affords added support to the finding of the Court that the accused was guilty of the offence charged with. But it has to be remembered that the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable because most often it is only the perpetrator of the crime alone who knows as to what circumstances prompted him to a certain course of action leading to the commission of the crime. 54. Hon'ble Supreme Court in Jarnail Singh v. State of Haryana, 1993 Supp (3) SCC 91, observed that the motive behind a crime is a relevant fact and normally prosecution is expected to adduce evidence in respect of thereof. The relevant extract of the observation reads as follows: 8. That is why this Court has repeatedly expressed the view that where the positive evidence against the accused is clear, cogent and reliable, the question of motive is of no importance. Reference may be made to the cases of Gurcharan Singh v. State of Punjab, Narayan Nathu Naik v. State of Maharashtra, Pedda Narayana v. State of A.P., Faquira v. State of U. P. and Molu v. State of Haryana. But at the same time it must be impressed that motive behind a crime is a relevant fact and normally prosecution is expected to adduce evidence in respect thereof. Experience shows that one or other motive moves the culprit to a certain course of action. In cases where prosecution is not able to establish a motive behind the alleged crime it assumes importance especially in cases where the prosecution rests on circumstantial evidence or on witnesses who have an inimical background. Proof of motive on the part of the accused persons to commit an offence satisfies the judicial mind about the likelihood of the authorship but in its absence it is only proper on the part of the Court to have a deeper search. Proof of motive on the part of the accused persons to commit an offence satisfies the judicial mind about the likelihood of the authorship but in its absence it is only proper on the part of the Court to have a deeper search. But if the Court is satisfied that evidence adduced, oral or circumstantial, establishes the charge against the accused, the prosecution case cannot be rejected saying that there was no immediate impelling motive on the part of the accused persons to commit the crime. 55. If we look in the evidence of P.W. 5 we find that the dead body was brought home immediately after the occurrence. But according PW-7 the deceased died when they lifted him in a 'thela', which creates doubt as to where and when the deceased died. Further, the dead body was shifted from one place to another in a 'thela' (a push cart), immediately after the occurrence, creates a doubt, since this fact is not supported by other eye witnesses. 56. On the other hand, the so called eyewitnesses to the occurrence, who are close relations of the deceased, stated that the local villagers had come and seen the accused persons at the place of occurrence, but surprisingly the prosecution did not come forward to examine any one of them as a witness in the case. The evidence of the persons who gathered immediately after the occurrence, on hearing the out cry, would have been valuable piece of evidence to corroborate the account given by the direct witnesses. No reason is forthcoming for not examining them. This is another serious lapse which casts a doubt on the prosecution case. 57. During investigation, PW-10, the uncharge of Barvita PS found the dead body in the paddy field, and held the inquest. PW 10 did not seize any sharp weapon on the spot. However, the inquest report proved by PW-10 reveals that the inquest was held in the courtyard of the deceased. Apparently courtyard is not the place of occurrence. The I. O., PW-10 stated in his cross-examination that he held the entire investigation as per G.D.E. No. 100 dated 8.4.1999 of the police out post and also admitted that the G.D.E. on the basis of which he had held the investigation by treating it as first information report, was not proved and exhibited in the Court during trial. The I. O., PW-10 stated in his cross-examination that he held the entire investigation as per G.D.E. No. 100 dated 8.4.1999 of the police out post and also admitted that the G.D.E. on the basis of which he had held the investigation by treating it as first information report, was not proved and exhibited in the Court during trial. PW-10, the I.O., found dead body of Idrish in the paddy field, where he prepared the inquest report, however, PW-4 contradicting the above statement and deposed in his evidence that when police came, the dead body of Idrish was in their courtyard. Exbt.-P/3, the inquest report prepared by PW-10 reveals that the dead body of Idrish was found in the courtyard in front of his house. The prosecution did not come forward to elucidated the above puzzlement 58. Keeping in view what has been pointed out above, when we turn to the evidence of the Investigating Officer, PW-10, we find that he could not clarify, as to where exactly the seized articles were found. Interestingly PW-10, did not find blood mark in the place of occurrence or on the weapon seized from the place of occurrence. Belying his own statement, subsequently PW-10 in his re-examination stated that M. Exbt.-l Okhun (a piece of bamboo with a hook in the fore front used in thrashing paddy) was found with blood stains. Nonetheless, admittedly seized articles were not sent to Forensic Laboratory to ascertain, if the blood stain was that of human being or animal. Very surprisingly 'okhun' was not stated to be the weapon of assault by any of the witnesses. 59. In Dr. Sunil Kumar Sambhudayal Gupta and Ors. v. State of Maharashtra reported in Hon'ble Supreme Court observed that exaggerations or omissions per se do not render the evidence brittle, but it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. The relevant extracts of the discussion read as follows: 14. Material Contradictions: While appreciating the evidence, the Court has to take into consideration whether the contradictions/omissions had been of such magnitude that they may materially affect the trial. Minor contradictions inconsistencies, embellishments or improvements on trivial matters without affecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. Material Contradictions: While appreciating the evidence, the Court has to take into consideration whether the contradictions/omissions had been of such magnitude that they may materially affect the trial. Minor contradictions inconsistencies, embellishments or improvements on trivial matters without affecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The Trial Court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate Court in normal course would not be justified in reviewing the same again without justifiable reasons. (Vide: State Represented by Inspector of Police v. Saravanan and another AIR 2009 SC 152 ). 15. Where the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and other witness also make material improvements before the Court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence. (Vide: State of Rajasthan v. Rajendra Singh (2009) 11 SCC 106 ). 16. The discrepancies in the evidence of eye- witnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence or with the statement already recorded, in such a case it cannot be held that prosecution proved its case beyond reasonable doubt. (Vide: Mahendra Pratap Singh v. State of Uttar Pradesh (2009)11 SCC 334 ). 17. In case, the complainant in the FIR or the witness in his statement under Section 161 Code of Criminal Procedure, has not disclosed certain facts but meets the prosecution case first time before the Court, such version lacks credence and is liable to be discarded. (Vide: State Represented by Inspector of Police, Tamil Nadu v. Sait @ Krishnakumar (2008) 15 SCC 440 ). 18. In State of Rajasthan v. Smt. Kalki and another AIR 1981 SC 1390 , while dealing with this issue, this Court observed as under: In the depositions of witnesses there are always normal discrepancies, however honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence, and the like. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person. 19. The Courts have to label the category to which a discrepancy belongs. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. (See: Syed Ibrahim v. State of A.P. AIR 2006 SC 2908 ; and Arumugam v. State AIR 2009 SC 331 ). 20. In Bihari Nath Goswami v. Shiv Kumar Singh and Ors. (2004) 9 SCC 186 , this Court examined the issue and held: Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. 21. While deciding such a case, the Court has to apply the aforesaid tests. Mere marginal variations in the statements cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited. 60. Applying the aforesaid tests it appears that the evidence of witnesses appears to be inconsistent with each other and the material discrepancies stated above renders the whole testimony of the witnesses unworthy of credence. Even if we become over lenient to the prosecution case and do not abandon the evidence of the so called eye witnesses, but when we closely consider the reliability we find their evidence is neither wholly reliable nor wholly un-reliable. There is no question of looking for corroboration, since we find that the prosecution did not come forward to examine even those witnesses, who had either witnessed the occurrence or reported to have been present at the place of occurrence. It would not be safe to rely on evidence, which is neither wholly reliable nor wholly un-reliable, to indict the accused-Appellant for commission of offence alleged. 61. It would not be safe to rely on evidence, which is neither wholly reliable nor wholly un-reliable, to indict the accused-Appellant for commission of offence alleged. 61. Turning to the evidence of PW- 8, we find that according to him, the lacerated injury and abrasion injury cannot be the cause of death; such injuries cannot be caused by blow of "dao" and also that the crash injury on head of the deceased could not be caused by stick (Loru). PW-8, the doctor who carried out post mortem examination, did not find any stab injury by a dagger on the person of the deceased unlike what has been stated by the prosecution witnesses. The types of injuries sustained by the deceased, do not support the prosecution story. Apparently, the injuries of the deceased as described by the so called eyewitnesses do not corroborate with the medical testimony. The oral evidence of witnesses regarding injuries sustained by the victims is inconsistent with the medical evidence on record. All these render serious doubt about the prosecution case. 62. This is true that even if there is conflict with the medical evidence, eye-witnesses account can be relied upon, if it is found fully reliable and truthful. In the instant case, statements of the witnesses are not fully reliable due to embellishment, exaggeration and contradictions. It is not clear whether out of lacerated injury on left shoulder and one abrasion on left leg with crash injury on the head and multiple fracture of skull bone of the deceased, which two were caused by the Appellants, since the Appellants admittedly, did not use any such weapons which could have caused the aforesaid injuries. However, without any solid and proper reasons, learned trial Court jumped into the conclusion in the impugned judgment that Appellant caused the injuries on the person of the deceased. 63. In a criminal trial a witness is often pitted against the medical evidence. The witness only has memory-recall to this aid, whereas the medical expert is equipped with all the post-incident analysis report with the scientific apparatus at his command. However, the law in this regard is settled that the statement of the witness will generally take precedence over medical evidence unless both are completely at odds. 64. The witness only has memory-recall to this aid, whereas the medical expert is equipped with all the post-incident analysis report with the scientific apparatus at his command. However, the law in this regard is settled that the statement of the witness will generally take precedence over medical evidence unless both are completely at odds. 64. In the case of Ram Narain Singh v. State of Punjab, AIR 1975 SC 1727 , the Apex Court held that where the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence, it amounts to a fundamental defect in the prosecution's case and unless reasonably explained, it is sufficient to discredit the entire case. Turning to the case in hand, we find that the prosecution could not reasonably explain the inconsistency of the ocular testimony with the medical evidence. Obviously, in terms of Ram Narain Singh v. State of Punjab, it amounts to a fundamental defect in the prosecution's case. 65. In State of Haryana v. Bhagirath and Ors. (1999) 5 SCC 96 , it was held as follows: The opinion given by a medical witness need not be the last word on the subject. Such an opinion shall be tested by the Court. If the opinion is bereft of logic or objectivity, the Court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact situation. If one doctor forms one opinion and other doctor forms a different opinion on the same facts it is open to the Judge to adopt the view which is more objective or probable. Similarly if the opinion given by one doctor is not consistent with probability the Court has no liability to go by that opinion merely because it is said by the doctor. Of course, due weight must be given to opinions given by persons who are experts in the particular subject. 66. In view of the observation in Bhagirath's case (supra), when the medical evidence is at variance with ocular evidence, it has to be noted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses, to exclude the eyewitnesses' account, which had to be tested independently and not treated as the "variable" keeping the medical evidence as the "constant". Where the eyewitnesses account is found credible and trustworthy, a medical opinion pointing to alternative possibilities can not be accepted as conclusive. The eyewitnesses' account requires a careful independent assessment and evaluation for its credibility, which should not be adversely prejudged on the basis of any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. 67. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts, the "credit" of the witnesses; their performance in the witness box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation (Vide: Thaman Kumar v. State of Union Territory of Chandigarh and Krishnan v. State (2003) 7 SCC 56 ). 68. In Solanki Chimanbhai Ukabhai v. State of Gujarat, AIR 1983 SC 484 , Hon'ble Supreme Court observed that "Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye-witnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities, whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence." A similar view has been taken in Mani Ram and Ors. v. State of U.P. 1994 Supp (2) SCC 289; Khambam Raja Reddy and Anr. v. Public Prosecutor, High Court of A. P. (2006)11 SCC 239 ; and State of U.P. v. Dinesh (2009) 11 SCC 566 . 69. In State of U.P. v. Hari Chand (2009) 13 SCC 542 , Hon'ble Supreme Court reiterated the aforementioned position of law and stated that, "In any event unless the oral evidence is totally irreconcilable with the medical evidence, it has primacy." 70. 69. In State of U.P. v. Hari Chand (2009) 13 SCC 542 , Hon'ble Supreme Court reiterated the aforementioned position of law and stated that, "In any event unless the oral evidence is totally irreconcilable with the medical evidence, it has primacy." 70. In case of Thaman Kumar v. State of Union Territory of Chandigarh (2003) 6 SCC 380 , the Apex Court has considered conflict between the medical evidence and eyewitness/witnesses statements and observed as under: 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. There is another category where though the injuries found on the victim are of the types which are possible by the weapon of assault, but the size and dimension of the injuries do not exactly tally with the size and dimension of the weapon. The third category can be where the injuries found on the victim are such which are normally caused by the weapon of assault but they are not found on that portion of the body where they are deposed to have been caused by the eye-witnesses. The same kind of interference cannot be drawn in the three categories of apparent conflict in oral and medical evidence enumerated above, in the first category it may legitimately be inferred that the oral evidence regarding assault having been made from a particular weapon is not truthful. However, in the second and third categories no such inference can straight away be drawn. The manner and method of assault, the position of the victim, the resistance offered by him, the opportunity available to the witnesses to see the occurrence like their distance, presence of light and many other similar factors will have to be taken into consideration in judging the reliability of ocular testimony. 71. Thus, the position of law, in cases where there is a contradiction between medical evidence and ocular evidence can be crystallized to the effect that though the ocular testimony of a witness has greater evidentiary value vis-a-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. Thus, the position of law, in cases where there is a contradiction between medical evidence and ocular evidence can be crystallized to the effect that though the ocular testimony of a witness has greater evidentiary value vis-a-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved. 72. When we consider the factual circumstances in the instant case in the light of the above decision of the Apex Court, we find that the conflict between the statement of eye-witness and medical evidence is glaring and conspicuous. Eye witnesses have specifically stated that injuries were caused by sharp edge of "dao", whereas not a single injury was found on the person of the deceased caused by sharp edged weapon. Further, the injury on the head of the deceased could not caused by a "Loru" as per the medical evidence of the expert. Therefore, statements on this aspect made by the witnesses cannot be relied upon because of direct conflict with the medical evidence. 73. Accordingly, instant case squarely falls within the category number one as held by Supreme Court in the case of Thaman Kumar (supra). Since the medical evidence is not consistent and corroborative in connecting any of the Appellants in the commission of the offence alleged. Because of what have been discussed and pointed out above, we find it fearfully risky and too unsafe to place implicit reliance on the evidence of the so called ocular witnesses, particularly, when their evidence is not wholelly reliable and it remains uncorroborated by any direct or circumstantial evidence. Situated thus, it is clear that the evidence of the type of witnesses indicated above cannot be made sole basis for conviction of the present Appellants, nor can the evidence on record, when considered, as a whole, can confidently make us hold that the accused-Appellants were the ones, who committed the offence alleged. 74. The learned trial Court altogether ignored vital aspects of the matter as discussed above, which compelled us to carefully analyse the evidence of the witnesses and the materials on record. 74. The learned trial Court altogether ignored vital aspects of the matter as discussed above, which compelled us to carefully analyse the evidence of the witnesses and the materials on record. What emerges from the above discussion is that the evidence of the so called eye witnesses have to be wholly discarded since the evidence given by them do not inspire the confidence at all. As already discussed above, the evidence of the witnesses is found to be inconsistent with each other and unreliable. We find it difficult to accept the evidence on record to maintain the conviction of the accused-Appellants, basing upon inconsistent, embellished and improved statements of the eye witnesses. 75. Considering all these circumstances, when the proof of prosecution story rests entirely on the evidence of the category of witnesses discussed above, we have no option, but to hold, that the prosecution has miserably failed to bring home the charges framed against the accused-Appellants. In the light of the evidence discussed above, we are of the view that it is a fit case, where the accused-Appellants deserved to be accorded at least, benefit of doubt. 76. Consequently, for the reasons discussed above, this appeal succeeds. The conviction of the accused-Appellants and the sentence passed against them are hereby set aside. The accused-Appellants are hereby held not guilty and are acquitted of the charge under Sections147/148/341/323/324/302 IPC, on benefit of doubt. 77. The accused-Appellants, are acquitted of the charges and they are set at liberty forthwith in connection with this case. Bail bonds furnished on behalf of the Appellants, No. 3 to 10, who are on bail, stand discharged. 78. Send a copy of this judgment together with the lower Court case records to the learned trial Court immediately.