JUDGMENT : Dharnidhar Jha, J. 1. The three appellants were put on trial by the learned Sessions Judge, East Champaran, Motihari by being jointly charged under Sections 302/34 and 307 of the Indian Penal Code in Sessions Trial No. 12 of 1990 and by judgment dated the 30th March 1992 were held guilty of committing offences under Sections 302/34 of the Indian Penal Code. However, the appellants were acquitted of the charge under Section 307 of the Indian Penal Code4 and were instead held guilty of committing an offence under Section 324 of the Indian Penal Code. They were heard on sentence on the 31st March, 1992 and each of them was directed to suffer rigorous imprisonment for life under Sections 302/34 of the Indian Penal Code and rigorous imprisonment for two months for having been found guilty of committing an offence under Section 324 of the Indian Penal Code. The appellants have preferred the present appeal to assail the impugned judgment and order of sentence. 2. As per the prosecution case, the deceased and P.W. 3 Salamuddin with P.W. 14 Bhola Mian the informant of the case and P.Ws. 1 and 2, namely, Mahbood and Ash Mohammad were sitting at the bathan of the informant and were talking together. The appellants are said to have arrived there and are said to have asked the deceased as to why he did not pay up Rs.1000/- to them and started abusing the deceased Noor Hassan. The deceased protested being abused which further enraged the accused persons so much so that appellant Mozahir Mian ordered to kill the deceased upon which appellants Samsul Mian gave a blow with chhura into the chest of the deceased. Mozahir Mian himself gave a chhura blow on the neck of the deceased, whereas, appellant Qudus Mian dealt a blow with a similar weapon on his head. Deceased Noor Hassan cried and fell on the ground whereafter Salamuddin (P.W. 3) was given a chhura blow by appellant Samsul Mian on his head while appellant Mozahir Mian gave a blow with a similar weapon on his left arm which hit him on his thumb. Appellant Qudus Mian dealt a blow with chhura which hit P.W. 3 on his knee-joint. Appellant Qudus Mian dealt a blow with chhura which hit P.W. 3 on his knee-joint. The informant stated that they could not assault him as he ran away from there into the village and raised alarm that the accused persons were assaulting his brother which attracted persons as a result of which the accused persons ran away from there. The deceased Noor Hassan along with the injured P.W. 3 Salamuddin were shifted to Sadar Hospital, Motihari but Noor Hassan was declared brought dead by the doctor whereas P.W. 3 Salamuddin was treated there. 3. The informant gave his fardbeyan in the hospital itself and on that basis, as may appear from the evidence of P.W. 16 ASI Upendra Kumar Mishra, the FIR was drawn up and the investigation was taken up. 4. The evidence of P.W. 16 ASI Upendra Kumar Mishra, however, discloses another facet of the prosecution case. P.W. 16 stated that he was posted in Govindganj police station on the 31st July, 1988 and he has been deputed in Sirni Bazar on that day. He received an information at about 9.15 in the night on that day that there had been an occurrence of marpit in village Belhi and on that basis he came to the village but could not meet anyone. P.W. 16 learnt that persons who were injured in the incident, had been shifted to the hospital and found that the villagers had run away from the village out of fear. P.W. 16 stated that he came back to Sirni bazaar and went to Areraj Hospital the next morning to learn that the injured persons had been shifted in the very night to sadar hospital, Motihari and, as such, he came back to Motihari where he found that one out of the two injured had died and the other was lying unconscious. P. W. 16, thereafter, came to Town Police Station, Motihari where he received the fardbeyan (Ext. 4) of P.W. 14 Bhola Mian as also a copy of the inquest report which were in the writings of ASI Ram Ayodhya Singh of Town Police Station, Motihari and on that basis he registered the case and took up the investigation. 5. During the course of investigation P.W. 16 came to the place of occurrence which was situated at village Belhi. 5. During the course of investigation P.W. 16 came to the place of occurrence which was situated at village Belhi. It was a palani made of thatch which was used as a cattle shed and which was situated on the east-southern extremity of the village. There was a road intervening the palani and the houses of the accused which were situated north of the road. Thus, the palani was situated south of the road. The palani was open from north, south and west and there was a tati which had put up on its eastern side. A log of Shisham was found lying there. He also visited the houses of accused Mozahir Mian and other accused persons. P.W. 16 the Investigating Officer found a piece of dhoti bismeared with soil and blood lying at the place of occurrence and accordingly, he seized the same. After closing the investigation P.W. 16 submitted charge-sheet for the trial of the appellant which ultimately ended in the impugned judgment. 6. The defence of the appellants was that of innocence and false implication. It appears from the cross-examination of P.W. 14 that it was specifically suggested to the witness that some of the accused persons, like, Mozahir Mian and Kudus Mian were not present at the scene of occurrence and they had falsely been implicated and it was also suggested as may appear from paragraph 24 of P.W. 14 that the defence had challenged the very veracity of the prosecution story by further suggesting that it was out and out a fabricated story. 7. During the course of the trial 18 witnesses were examined out of which P.Ws. 17 and 18 were formal witnesses who had testified two different writing, like, those on the formal FIR or the fardbeyan. P.W. 1 Mahboob, P.W. 2 Ash Mohammad, P.W. 3 Salamuddin and P.W. 14 Bhola Mian had given eye witness account of the occurrence. P.W. 4 Kitab Mian, P.W. 5 Bhuteli Mian, P.W. 7 Ghambhir Mian as also P.W. 12 Farman Mian had been tendered for cross-examination. P.W. 8 Bandhu Mian and P.W. 10 Robeya Khatoon had given evidence as hearsay witnesses. P.W. 9 Khalil Mian had, though claimed himself to be an eye witness, as appears from his examination-in-chief but from his cross-examination in paragraph 3 he admitted that he had not seen the occurrence himself. P.W. 8 Bandhu Mian and P.W. 10 Robeya Khatoon had given evidence as hearsay witnesses. P.W. 9 Khalil Mian had, though claimed himself to be an eye witness, as appears from his examination-in-chief but from his cross-examination in paragraph 3 he admitted that he had not seen the occurrence himself. Considering the evidence of above four witnesses, namely, Mahbood, Ash Mohammad, Salamuddin and the informant Bhola Mian (P.W. 14) the court below convicted the appellants and sentenced them as noted above. 8. Shri Uma Kant Shukla, learned counsel appearing on behalf of the appellants submitted that there was glaring defect in the prosecution story as the manner of assault both on the deceased as also on P.W. 3 was not borne out from the medical evidence. It was contended that as per the evidence of P.W. 3 Salamuddin in paragraph 5 it could very well be held that it was a dark night and there was no source of light and, as such, the identification was not possible especially when it had rained in the night as appears stated by P.W. 16 ASI, Upendra Kumar Mishra the investigating officer of the case in paragraph 6. Submission also was that the prosecution used all weapons possible to ensure that the appellants were convicted and sentenced. In this regard, Sri Shukla was drawing our attention towards the evidence of P.W. 6 Mohammad Fahim Mian, who was deposing to the dying declaration of the deceased when he stated that the two injured, i.e., P.W. 3 and the deceased had stated before him that it were the present set of appellants who had caused injuries to both of them. Submission was that it was the solitary evidence and even the wife of the deceased, namely, Robeya Khatoon (P.W. 10) was not stating this fact that her husband had made any statement to anyone. Shri Shukla was further submitting that before the FIR was drawn up or the fardbeyan had been received by P.W. 16, he had reached village Belahi and had attempted to gather the information as to how the occurrence had taken place and who had participated in it, but no one came forward to inform or to point out the names of any of the persons who had assaulted either the deceased or the P.W. 3. It was, as such, submitted that the fardbeya was a document which was brought into existence after concert and deliberations. 9. Shri Abhimanyu Sharma, learned Additional Public Prosecutor had very fairly submitted that the evidence was too weak to support the findings of guilt. 10. It was rightly contended by Shri Shukla that there were many serious defects in the prosecution case. To begin with, we find that the initial story was that appellant Samsul Mian dealt a blow with Chhura to the chest of the deceased and some of the witnesses, like, P.Ws. 1, 2, 3 and 14 have stated that the blow with Chhura which was given by appellant Mozahir Mian on the throat of the deceased was wielded when the deceased was standing up. But we found during the course of perusal of the evidence that there was no injury with Chhura found by the doctor on the chest of the deceased and, as such, the evidence and story that Samsul Mian had given a Chhura blow on the chest of the deceased falls flat to the ground. The description of injury no. 1 given by P.W.13 Dr. Birendra Kumar Agrawal who held post-mortem examination on the dead-body of the deceased indicates as if the blow could have materialized only when the man could have been sleeping and his neck was slit with some sharp cutting weapon. P.W.13 has found an incised wound measuring 6”x3”x2” over left side of neck in its lower part, starting from base of left shoulder near the back of the neck to the front of the neck in its lower part. This wound which was the fatal injury as per description of injuries given by P.W.13 in our opinion could not have been caused if the deceased had remained standing or it could have been caused only when the man could have positioned himself behind the deceased and sufficient force had been applied so as to immobilizing him to slaughter him. The cross-examination of P.Ws. 1, 2, 3 and 14 leaves a lot to be desired as regards the description of giving the blow and specially that particular blow which caused injury no. 1. The cross-examination of P.Ws. 1, 2, 3 and 14 leaves a lot to be desired as regards the description of giving the blow and specially that particular blow which caused injury no. 1. As regards the injuries which were found by the doctor on P.W.3, the court below has itself recorded that there were three injuries on his person out of which one might have been caused by a sharp cutting weapon, like, a Chhura while the other two could have been resulted from blows given by some hard and blunt substance. The learned trial judge was addressed on these anomalous positions as regards the oral testimony and the medical evidence, but what the learned trial judge did was to refer to the Medical Jurisprudence by Modi to reject the argument of inconsistency between the medical and oral testimony. Referring to medical texts might be permissible but that could be done only when some substantially medical data is required to extract in support of the findings by the court. The line which was extracted from the text by Modi which appears in paragraph 55 of the judgment, in our opinion, was more a reference to a text-book than to supply sufficient reasons for rejecting a substantially noteworthy argument. We have indicated above by referring to the evidence given by P.W. 13 as also by referring to the injuries which were found by the doctor on P.W.3 that there were anomalous evidence as regards injury caused either to the deceased or to the injured. These anomalies, in our opinion, were bound to occur only because the witnesses were not in a position to see and comprehend the full manner of occurrence and, as such, they were imagining the facts to narrate it before the court and that was the reason that they were being inconsistent with the medical opinion. We may refer to the evidence of P.W.3 himself in paragraph 5 when he stated that there was no light available on the cattle-shed where he and the deceased were sitting. The evidence of P.W.16 is that he came to the village and attempted to gather information about the manner in which the occurrence had really taken place, but failed to get any information as to how the marpit had taken place and between whom. The evidence of P.W.16 is that he came to the village and attempted to gather information about the manner in which the occurrence had really taken place, but failed to get any information as to how the marpit had taken place and between whom. The evidence of P.W.16 rather indicates that if none was willing to come forward to state to him that any occurrence had occurred in the village and that a cover of silence was looming large upon the village not allowing P.W.16 to have any information. The fardbeyan of the injured was recorded on 01.08.1988 at about 1.50 a.m. in Sadar Hospital, Motihari and the FIR was drawn up on that basis by P.W.16 on 01.08.1988. But, so far as other persons are concerned, they were very much in the village and it was expected that they should have come out to tell the police, i.e., P.W.16 about the story which was later propounded by the prosecution. It was not that none was present. There is no evidence before us that the wife of the deceased Robeya Khatoon who was examined as P.W.10 had gone away from the village with others of her family. The manner of occurrence gets further doubtful by the fact that P.W.16 did not find any drop of blood at the place of occurrence as appears from his evidence in paragraph 19. These are some of the serious defects which we could find out after considering the evidence and in light thereof we are of the opinion that the evidence was not such as to hold the appellants guilty of committing the offences they had been convicted of. 11. In the result, the appeal succeeds. The judgment of conviction and the order of sentence are hereby set aside. The appellants are acquitted of the charges they had been found guilty of. The appellants are on bail. They shall stand discharged from the liabilities of their respective bail bonds. Appeal allowed.