SHYAM KISHORE SHARMA, J.:–Above noted both the appeals have been taken up together because both the appeals have been preferred by the above named appellants against the common judgment of conviction and sentence dated 31st October, 1990 passed by the learned Sessions Judge, Sitamarhi in Sessions Trial No. 28 of 1990 whereby these two appellants were held guilty for the offence punishable under section 302 of the Indian Penal Code and were sentenced to undergo imprisonment for life. These two appellants were acquitted from the charges under section 148 of the Indian Penal Code. Other accused persons, namely, Ramashray Chaudhary, Ram Sharan Chaudhary, Udit Narayan Thakur, Raj Kumar Thakur and Sunil Kumar Thakur were held not guilty and they were acquitted from the charges. 2. The occurrence of the noon of 28.11.1989 is before us through these appeals. The information with regard to occurrence was given after about 8 hours when the Officer Incharge, Sub-Inspector of Police, Arbind Kumar (PW 7) arrived at the place of occurrence village i.e. Khari and recorded the fard-beyan (Ext. 1) of Suresh Rai son of Nageshwar Rai (PW 4) in presence of Ram Bilash Hathi and Upendra Rai (both not examined). The informant was at his Dalan when his fard-beyan was recorded wherein he detailed the occurrence which was noon of the day. At that time he was having lunch. His Bhabhi Heera Devi (PW 6) wife of the deceased had been to call her husband for taking lunch. Suddenly, the informant heard cry of his brother and saw at the distance of 15 yards Ramashray Chaudhary, Udit Narayan Thakur, Raj Kumar Thakur @ Kuwar, Sunil Kumar Thakur and Ram Sharan Chaudhary were catching hold the informant’s brother Mahesh Rai, who wanted to rescue himself. In the meanwhile, Birendra Thakur stabbed upon the left side of the chest whereas Raghubansh Thakur stabbed upon the back of Mahesh Rai who fell down. Accused Ramashray Chaudhary pushed down the informant’s father Nageshwar Rai. Informant’s loud cry resulted into assemblage of villagers, namely, Ram Naresh Sah (not examined), Bechan Sah (PW 2), Shivjee Sahni (PW 1) and others. The accused persons took to their heels and Mahesh Rai succumbed to his injuries just after five minutes. On 26.11.1989 the voting was going on. Accused Ramashray Chaudhary pushed down the informant’s father Nageshwar Rai. Informant’s loud cry resulted into assemblage of villagers, namely, Ram Naresh Sah (not examined), Bechan Sah (PW 2), Shivjee Sahni (PW 1) and others. The accused persons took to their heels and Mahesh Rai succumbed to his injuries just after five minutes. On 26.11.1989 the voting was going on. Sunil Kumar Thakur and others of village Khari wanted to temper with the vote but that was not allowed, as a result thereof Sunil Kumar Thakur and Udit Narayan Thakur could not vote. On the day following Raghubansh Thakur, Ramashray Chaudhary and Raj Kumar Thakur had a meeting and on the date of occurrence they conspired and caused death of Mahesh Rai. Formal FIR (Ext. 6) vide Pupri P.S. Case No. 115 dated 28.11.1989 under sections 147, 148, 149, 342, 324, 302 of the Indian Penal Code was registered and investigation commenced. The inquest report (Ext. 4) of the dead body was prepared, post mortem report (Ext. 7) was obtained, the place of occurrence was investigated into and the statement of witnesses was recorded. The case was found to be true, so the Investigating Officer submitted chargesheet. The case was triable by the court of Sessions, so the case was committed to the court of sessions after taking cognizance where charge under sections 148 and 302 Indian Penal Code was explained to the appellants whereas charge under sections 147, 302/149 of the Indian Penal Code was explained to other accused persons, namely, Ramashray Chaudhary, Udit Narain Thakur, Raj Kumar Thakur, Sunil Kumar Thakur and Ram Sharan Chaudhary. All the accused persons pleaded their innocence, so the trial proceeded. 3. The defence of the accused persons was of false implication on account of enmity. Their further defence was that they had no motive at all to cause death of the informant’s brother Mahesh Rai and further Mahesh Rai was killed in the manner by the villagers of the different village, then the accused persons were framed in. 4. In order to substantiate its case, the prosecution has examined Sheoji Sahni (PW 1), Becha Sah (PW 2), (Sheojee Rai), PW 3, Nageshwar Rai the father of the deceased (PW 4), Suresh Rai the brother of the deceased as well as the informant (PW 5), Hira Devi the wife of the deceased (PW 6), Arbind Kumar the Investigating Officer (PW 7), Dr. Hari Prasad who held the post mortem examination upon the dead body of the deceased (PW 8), Ram Balak Kunwar the second Investigating Officer (PW 9) and Jitendra Jha is a formal witness (PW 10). PWs 1, 2, 3, 4, 5 and 6 are the witnesses whose names find mention in the fard-beyan. 5. The defence has examined one Baidya Nath Prasad Singh to prove the ali-bi of co-accused Ramashray Chaudahry (since acquitted). 6. The trial court after considering the evidence on the record and after hearing the submissions came to the conclusion that these two appellants are guilty, whereas, other five persons, namely, Ramashray Chaudhary, Udit Narain Thakur, Raj Kumar Thakur, Sunil Kumar Thakur and Ram Sharan Chaudhary were held not guilty and they were acquitted. Being aggrieved upon the order of conviction and sentence these two appellants have preferred these appeals which are before us for consideration. 7. Now, this Court is to see as to whether the prosecution has succeeded in proving the charge against these two appellants beyond the shadow of all reasonable doubts or not. 8. Before taking up the eye witnesses- the material witnesses, it would be proper to go through the evidence of PW 8 Dr. Hari Prasad who held post mortem examination upon the dead body of Mahesh Rai on 29.11.1989 at 2.00 PM brought by constable no. 446 Ramanand Singh and Chowkidar Lakshman Paswan (not examined). Rigor mortis was present on all external injuries and following ante-mortem injuries were found: (i) Penetrating injury on right side of back 1” x ½” x viscera deep, (ii) Lacerated wound on left side of chest in its upper part 1” x ½” x muscle deep, (iii) on opening of thorax 1/8th rib was found fractured, pressing spleen, causing bleeding, right side of thorax cavity was full of blood and right lung was found punctured. The doctor observed that injury no. (i) was caused by sharp pointed weapon may be by Chura whereas injury no. (ii) and (iii) were caused by hard and blunt substance maybe iron rod or lathi. The death was on account of haemorrhage and shock as a result of the injuries. Injury no. 3 was possible by falling on hard blunt substance. Time elapsed since death is within 24 to 36 hours. 9. (ii) and (iii) were caused by hard and blunt substance maybe iron rod or lathi. The death was on account of haemorrhage and shock as a result of the injuries. Injury no. 3 was possible by falling on hard blunt substance. Time elapsed since death is within 24 to 36 hours. 9. The doctor’s evidence established that the death was on the time and date as suggested by the prosecution and it was not a natural death rather death is culpable homicide. 10. The informant has set the law into motion by giving the information of the case through the Police. The Police has arrived after hearing rumor regarding the occurrence in the village and thereafter, recorded the fard-beyan of PW 5. The informant (PW 5) deposed that on 28.11.1989 about noon, he was having lunch at his house, at that very time he heard shouts emanating from the side of the Pagdandi. The informant came out and saw that at about 15 feet of south of his house on the path were villagers Ramashray Chaudhary, Udit Narayan Thakur, Raj Kumar Thakur, Sunil Kumar Thakur and Ramsharan Chaudhary holding the informant’s brother Mahesh Rai who was making all efforts to get himself free but at the sight of the informant, Birendra Thakur gave a dagger blow upon the right side of the chest of Mahesh Rai and simultaneously Raghubansh Thakur gave another dagger blow upon the back of Mahesh Rai which caused injury to Mahesh. At the time of leaving the place of occurrence Ramashray Chaudhary pushed down the informant’s father Nageshwar Rai who was tendered by the prosecution. After about five minutes, Mahesh succumbed to injuries. The dead body was brought to the outer house of the informant. The motive as detailed by the informant was that on 26.11.1989 on polling booth at village Khari Sunil Thakur and others were obstructing the genuine voters which was protested by the informant. Sunil Thakur and others could not manage the forge voters. On the day following i.e on 26.11.1989 Raghubansh Thakur, Ramashray Chaudhary, Raj Kumar Thakur came and held a meeting which was objected by the informant’s brother Mahesh Rai-a teacher. The Police Officer came and the informant gave his fard-beyan which led to registration of the case. Sunil Thakur and others could not manage the forge voters. On the day following i.e on 26.11.1989 Raghubansh Thakur, Ramashray Chaudhary, Raj Kumar Thakur came and held a meeting which was objected by the informant’s brother Mahesh Rai-a teacher. The Police Officer came and the informant gave his fard-beyan which led to registration of the case. The informant further deposed that inquest report of the dead body was prepared in his presence which was signed by one Upendra Rai (not examined). Soil containing blood was seized and the seizure list was prepared. The informant remained consistent during the detail cross-examination and he supported that on the date and time of occurrence i.e. 26.11.1989 at 12.00 noon two stabs- one from front side and another from back side were given by the appellants and that proved fatal for Mahesh Rai. 11. PW 1 is a chance witness who after hearing the cry had gone and has seen Mahesh Rai was being caught hold by all the acquitted accused persons. Mahesh Rai was making all efforts to get rid of but at that very time he was stabbed by Birendra Thakur and Raghubansh Thakur which proved fatal. This witness has fully supported the informant and has remained consistent. Similarly PWs 2 and 3 have also fully supported the informant’s version that on the date and time of occurrence two stabs by dagger were given by Birendra Thakur and Raghubanch Thakur. 12. PW 3 was aged about 10 years. He has stated that while he was going with his father for taking lunch, then his father was caught by Ramashray Chaudhary, Raj Kumar Thakur, Sunil Kumar Thakur and Ramsharan Chaudhary and in that position he was stabbed on his chest and back by Birendra Thakur and Raghbansh Thakur respectively. His father fell down and died soon. This witness is a school boy and described the occurrence as an eye witness. 13. PW 6 is an another material witness who was waiting to feed her husband on the date and time of occurrence. She was going to call him but she heard some cry coming from the outside one laggi from the house. She saw persons catching hold of her husband- the appellants and five others (since acquitted) were the persons who were catching hold of Mahesh Rai. She saw Raghubansh Thakur stabbed her husband from behind and Birendra Thakur from front. She was going to call him but she heard some cry coming from the outside one laggi from the house. She saw persons catching hold of her husband- the appellants and five others (since acquitted) were the persons who were catching hold of Mahesh Rai. She saw Raghubansh Thakur stabbed her husband from behind and Birendra Thakur from front. The assault proved fatal. 14. The eye witnesses account are consistent that due to two injuries inflicted by sharp cutting weapon, namely, dagger Mahesh Rai died. One injury was caused upon chest and another was upon the back. The inquest report (Ext. 4) was prepared on the next date i.e. on 29.11.1989 at 6.00 PM and the inquest report mentions two stabbed injuries caused by sharp point weapon- one was on the left chest and another was on the back. In this connection, the doctor’s evidence is to be looked into. The doctor has found three injuries- the first being penetrating injury, the second is lacerated wound and third is internal injury. Injury no. 1 was caused by sharp pointed weapon may be by dagger, whereas, injury nos. 2 and 3 were caused by hard blunt substance, namely by iron rode or lathi. The doctor has further stated that injury no. 3 possibly might have been caused by falling on hard and blunt substance also. About injury no. 3 he elaborated that it was internal injury and, so it was not mentioned in the inquest report. The inquest report is always prepared on the basis of external injury. The inquest report was sent to the doctor and the doctor has perused it. The doctor further stated that the penetrating injuries were caused by sharp penetrating weapon. Bhala is a sharp penetrating weapon and injury no. 1 might have been caused by Bhala. Dagger produced stab injury normally. Injury no. (ii) was likely to be caused by iron rod or by lathi and injury no. 3 would have been possible by stroke of rod or lathi. The doctor has remained specific when he has stated that “from the post mortem report, it appears that two types of weapons were used for causing injuries on the person of the deceased”. The doctor has given specific reply that injury no. 2 is possible only by hard and blunt substance. The doctor has remained specific when he has stated that “from the post mortem report, it appears that two types of weapons were used for causing injuries on the person of the deceased”. The doctor has given specific reply that injury no. 2 is possible only by hard and blunt substance. Meaning thereby that there is no possibility that the second injury would be caused by any sharp cutting or pointed weapon and the doctor has remained categorical that only one injury was caused by sharp cutting and not both injuries as stated by the eye witnesses. 15. Learned Amicus curiae appearing on behalf of the appellants has submitted that the doctor’s evidence negates eye witnesses version that each appellants were responsible for the death of Mahesh Rai. It has been submitted that all the material witnesses have stated that two stabbed wounds were given by the appellants but doctor has found only one injury as such one injury was not caused in the manner as deposed by the witnesses. It has been submitted that it is simple to say that the witnesses were not the eye witness and after murder of Mahesh Rai by villagers of neighbouring village, accused persons were framed in. So it has been submitted that the prosecution has failed to establish the charge against the appellants beyond the shadow of all reasonable doubts. It has also been submitted that major part of the evidence has been disbelieved by the trial court when it has disbelieved their evidence so far as it relates to other five accused persons who have already been acquitted. Once the testimony was found to be interested and motivated, then the evidence of the witness should have been discredited and these two appellants have been singled out for being convicted. 16. On the other hand learned APP has submitted that the eye witness count has given detailed version and all have remained consistent and the medical evidence which is only opinion and that cannot overrule the testimony of ocular witnesses. 17. Where the direct evidence is not supported by the expert evidence, then the evidence is wanting in the most material part of the prosecution case and it would be difficult to convict the accused on the basis of such evidence. 17. Where the direct evidence is not supported by the expert evidence, then the evidence is wanting in the most material part of the prosecution case and it would be difficult to convict the accused on the basis of such evidence. If the evidence of the witnesses for the prosecution is totally inconsistent to the medical evidence or the evidence of ballistic expert, this is a most fundamental defect in the prosecution case and unless it is reasonably explained, then it can be said to be sufficient ground for discrediting the entire case. In the judgment reported in 1975 Cr. Law Journal 1500 (Ram Narain Vs. State of Punjab) it was held that in case of conflict between the evidence of eye witnesses as well as medical evidence, the case of the prosecution can be said to be suffering from fundamental defect and this was enough to discredit the prosecution version. In another case reported in (1983) 1 Supreme Court Cases 379 (Maula Bux and Ors. Vs. State of Rajasthan) the benefit of conflict between inquest report and post mortem report was given to the accused and it was held that discrepancy between the post mortem examination report as well as the inquest report was vital in the circumstances and it was held that in case of conflict, the accused persons is entitled to get the benefit of doubt. In another case reported in (1976) 2 Supreme Court Cases 401 (Banka Nayako & Ors. Vs. State of Orissa) it was held that if a conviction was bassed on a dying declaration and it was not corroborated by the medical evidence, then in that circumstances, the benefit was given to the accused. 18. If the entire evidence available on the record is analyzed, then it appears that the death was caused in a particular manner as stated by the witnesses or as supported by the doctor. If the oral witnesses are to be believed, then the doctor’s evidence becomes doubtful and vice versa also. The occurrence was caused in a particular manner and that manner was not explained by the prosecution in the present case. The factum of giving two stab wounds is the consistent evidence of the witnesses but doctor’s negation of the version given by the witnesses goes to the root of the case. It would be difficult to reconcile such a vital discrepancy. The factum of giving two stab wounds is the consistent evidence of the witnesses but doctor’s negation of the version given by the witnesses goes to the root of the case. It would be difficult to reconcile such a vital discrepancy. In case of minor discrepancy, it can be said that the witnesses might have been deviated to some extent but if the conflict between two types of evidence is apparent and prominent, then it can be said that the prosecution has not succeeded in proving the case and occurrence beyond the shadow of all reasonable doubt. Version of the eye witnesses has been clouded after the evidence of the doctor. It would be unsafe to rely upon the version of the either eye witnesses or the medical evidence because both are giving different versions. 19. In view of the aforesaid discussions, we are of the view that the prosecution has not been able to reconcile the conflict between the oral as well as the medical evidence. So the accused persons deserve benefit of doubt. 20. In the result, the judgment of conviction and sentence is set aside and these appeals are allowed. The appellants are acquitted. Since they are on bail, they are discharged from the liabilities of their bail bonds. 21. Since no one appeared on repeated calls to represent the appellants in both the appeals, Ms. Shama Sinha, Advocate was appointed as Amicus Curiae to assist this Court on behalf of the appellants in both the appeals. She has argued well. We appreciate her assistance given on behalf of the appellants. 22. Let a copy of the first and last page of this judgment be handed over to Ms. Shama Sinha, so that she may get the prescribed fee from the High Court Legal Services Committee, Patna.