JUDGMENT I.A. Ansari, J. 1. This is an appeal against the judgment and order, dated 17.02.2006, passed, in Sessions Case No. 79 (T)/2002, by the learned Additional Sessions Judge No. 2 (FTC), Tinsukia, convicting the accused-appellant, Biren Naik, under Sections 302 and 326 IPC and sentencing him to suffer, for his conviction under Section 302 IPC, imprisonment for life and pay fine of Rs. 5,000/- and, in default of payment of fine, suffer rigorous imprisonment for a period of five years and also to undergo, for his conviction under Section 326 IPC, rigorous imprisonment for seven years and pay fine of Rs. 2,000/- and, in default of payment of fine, suffer rigorous imprisonment for a further period of four months, both the sentences having been directed to run concurrently. The case of the prosecution, as unfolded at the trial, may, in brief, be described as under: (i) Accused Biren Naik used to live in one of the rooms of Samara Naik (since deceased). In the said house, Samara Naik's sister, Raibari Sonia, and his two sons, namely, Amar Somia (PW2) and Suklal Somia, were also living. On 09.12.99, at about 10:30 pm, accused assaulted Samara Naik by a Kalam Katari (i.e., a knife meant for pruning of tea leafs) and when Raibari tried to interfere, she was also assaulted by the accused-appellant by means of the said knife. On hearing hue and cry, raised by Samara Naik and Raibari, PW2 and PW3 came out of their respective rooms and witnessed the occurrence of assault on Samara and Raibari. Hearing hullah raised, at the house of the said deceased, many of their neighbours assembled there and they disarmed the accused by snatching away the said knife from the hands of the accused. While being taken to Khobang T.E. Hospital, Samara succumbed to his injuries. After about 10 days, Raibari, while still under treatment at the said hospital, for the injuries sustained by her on her abdomen, died. (ii) On the following day of the occurrence, i.e., on 10.12.99, Pando Munda (PW1), line chowkidar of the Tea Estate lodged an Ejahar at Talap Police outpost, which falls under Doomdooma Police Station informing the police that the dead body of Samara Naik was lying in the hospital of Khobang T.E. and Raibari was lying at the said hospital in critical condition for the injury on her abdomen. Based on the said information and treating the same as First Information Report (in short, 'FIR'), Doomdooma Police Station Case No. 290/99, under Sections 302/326 IPC, was registered. During the course of investigation, police visited the place of occurrence, apprehended the accused and also seized the said knife by seizure list (Ext. 2). During the course of investigation, police also held inquest on the dead body of Samara Naik and, in course of time, when Raibari died, an inquest was held on her dead body too. On completion of investigation, police laid charge-sheet against the accused under Sections 302/326 IPC. 2. During trial, when charges, under Sections 302 and 326 IPC, were framed against the accused, he pleaded not guilty thereto. 3. In support of their case, prosecution examined altogether 13 (thirteen) witnesses. The accused was, then, examined under Section 313 Cr. PC and, in his examination aforementioned, he denied to have committed the offences, which were alleged to have been committed by him, the case of defence being that of total denial. No evidence was adduced by the defence. 4. However, having found the accused guilty of the offence, which he stood charged with, the learned trial Court convicted him accordingly and passed sentences against him as mentioned above. Aggrieved by his conviction and the sentences, which have been passed against them, the accused has preferred this appeal. 5. We have heard Ms. P. Bhattacharjee, learned Amicus Curiae, and Mr. K.A. Mazumdar, learned Additional Public Prosecutor, Assam. 6. Before we enter into the discussion of the evidence of PW2 and PW3, who have been examined by the prosecution as eye witnesses to the alleged occurrence, it is appropriate that the medical evidence on record be taken note of. 7. The doctor (PW9), who, admittedly, performed, on 11.12.99, post mortem examination on the dead body of Samara Naik, found, according to the evidence given by the doctor, as follows:- 1. One incised wound present on left frontal area of scalp size 6 cm x 2 cm x brain depth. 2. One incised wound present over left parietal area of scalp size 4 cm x 2 cm x scalp depth. 3. One incised wound present on palmer surface of the left thumb size 3 cm x 2 cm x muscle deep. 8. 2. One incised wound present over left parietal area of scalp size 4 cm x 2 cm x scalp depth. 3. One incised wound present on palmer surface of the left thumb size 3 cm x 2 cm x muscle deep. 8. All the injuries, according to the evidence of doctor (PW9), were ante mortem in nature and the same were caused by sharp weapon, which were homicidal in nature. The doctor (PW9) has opined that death was caused due to shock and hemorrhage, which resulted from the injury No. 1 sustained by the said deceased and that the said injury was sufficient, otherwise also, to cause death of a person in the ordinary course of nature. 9. The further evidence of the doctor (PW9) is that on 22.10.99, he conducted post mortem examination on the dead body of Raibari and found one horizontally placed ante mortem incised wound over left side of anterior abdominal wall size 12 cm x 2 cm x abdominal cavity deep with stitches. 10. The doctor (PW9) has deposed that Raibari died due to peritonitis resulting from the abdominal injury, which she sustained and the said injury having been caused by a sharp cutting weapon, the injury being homicidal in nature. 11. The material aspects of the evidence of PW9 remained unchallenged by the prosecution as well as the defence. Thus, the medical evidence on record clearly shows incised wounds having been sustained by Samara Naik and incised wound on Raibari. It also surfaced from the medical evidence on record that the said injuries were caused by a sharp cutting weapon on both the said deceased. 12. Bearing in mind the medical evidence on record, when we turn to the evidence of PW2, son of deceased Samara Naik, we notice that this witness claimed, in his examination-in-chief, that the incident took place at about 10 pm inasmuch the accused, who used to stay in one room of their house, inflicted cut injury on the head of his father by a kalam katari (i.e. a knife meant for pruning tea leafs) and also caused stab wound on Raibari by means of the said knife, whereupon neighbours came and caught the accused-appellant along with the said knife. It is in the evidence of PW2 that his father died on the way to Khobang T.E. hospital, but injured, Raibari, was taken to the said hospital, where she died while remaining under treatment 13. Notwithstanding the evidence, given by PW2, in his examination-in-chief, reflecting as if he was an eye witness to the occurrence, he has clearly admitted, in his cross-examination, that after getting up from sleep, he saw that Biren (i.e., the accused-appellant) was giving cut injury on his father. However, on further cross-examination, PW2 deposed that Biren inflicted cut injury on the head of his (PW2's) father prior to his getting up from sleep. This is a clear admission of PW2 that he had not seen the accused assaulting either Samara Naik or Raibari. 14. The evidence of PW3 is no better inasmuch as even this witness claimed that on hearing hue and cry, he got up from sleep and saw the accused inflicting cut injury on Raibari and his father, Samara Naik, but, in his cross-examination, he (PW3) admitted that he did not witness the incident while the same was committed by the accused. 15. Thus, what becomes clear from a close scrutiny of the evidence of PW2 and PW3 is that though both these witnesses were examined as eye witnesses to the occurrence of assault on Samara Naik and Raibari, neither PW2 nor PW3 had actually seen the occurrence. 16. Coupled with the above, though it has been claimed that the accused was caught by the neighbours and he was disarmed and that the knife, which he had used was seized by the police, the fact remains that seizure list (Ext. 2) gives no indication at all that there was any blood stain on the said knife. The said knife could not be proved to be the weapon of offence inasmuch as the said knife was not even put to any serological test. 17. So far as the other witnesses of the prosecution are concerned, they had, admittedly, not seen the accused assaulting any of the said two deceased. 18. Situated thus, it becomes clear that the evidence on record were not only grossly inadequate, but wholly deficient to hold the accused-appellant guilty of the offences, which had been charged with and, in these circumstances, the accused-appellant ought to have been acquitted by the learned trial Court. 19. 18. Situated thus, it becomes clear that the evidence on record were not only grossly inadequate, but wholly deficient to hold the accused-appellant guilty of the offences, which had been charged with and, in these circumstances, the accused-appellant ought to have been acquitted by the learned trial Court. 19. In the result and for the reasons discussed above, this appeal succeeds. The conviction of the accused-appellant and the sentence passed against him by the impugned judgment and order are hereby set aside. The accused-appellant is hereby hold not guilty of the offences, which he had been charged with, and is acquitted of the same. 20. Let the accused-appellant be set at liberty, forthwith, unless he is required to be detained in connection with any other case. 21. Let the learned amicus curiae be paid a sum of Rs. 5,000/- for her valuable assistance rendered to the Court. Send back the LCR. Appeal allowed.