JUDGMENT Indira Shah, J. 1. This appeal is directed against the judgment and order dated 28.05.2013 passed by learned Addl. Sessions Judge No. 4 (FTC) Kamrup in Sessions Case No. 130(K) of 2008 whereby and whereunder the appellants viz., Basarat Ali, Musstt. Safia Khatun, Md. Rafiqul Ali, Md. Safiqul Ali and Md. Chand Mahammad have been convicted under Section 302 read with Section 149 IPC and each of them have been sentenced to suffer imprisonment for life and also to pay a fine of Rs. 2,000/- each, in default of payment of fine, to suffer rigorous imprisonment for another two months. Earlier the judgment of conviction and sentence was challenged in Criminal Appeal No. 19 of 2010 and this Court remanded the case to the learned trial Court for causing GD Entry No. 94 dated 3.11.2006 to bring evidence on record by examining the Investigating Officer, re-examining him and also re-examining any such witness or witnesses as may be necessary. Accordingly, the trial Court summoned the Investigating Officer brought on record the aforesaid GD entry. Another witness who was the then Officer-In-Charge of Jalukbari, Police Station at the relevant time was also examined by the trial Court. 2. The prosecution case, in brief, is that on 3.11.2006 at about 6 am when Ukil Ali was proceeding to a nearby shop for purchasing biscuits, the accused Md. Chand, Md. Safiqul Ali, Md Basarat Ali, Musstt. Safia Khatun and Md. Rafiqul Ali who came in a group armed with lethal weapons assaulted him. On hearing the commotion Jakir Hussain (P.W. 1), son of Ukil Ali, and others rushed to the place of occurrence and found the appellants with various weapons in their hands. In the presence of the witnesses the appellants further assaulted Ukil Ali. Thereafter, Ukil Ali was brought to Jalukbari Police Station. On the basis of oral information lodged by Jakir Hussain (P.W. 1), GD Entry No. 94 dated 3.11.2006 was made and the injured was sent to Mohendra Mohan Choudhury Hospital at Guwahati. On the same day, at around 9 pm, a formal Ejahar in writing was lodged by P.W. 1 and treating the same as the First Information Report, Jalukbari PS Case No. 529/2006, under Sections 147/148/149/26 IPC was registered. During the investigation, the Investigating Officer seized one spade from the place of occurrence. On the same day, at around 9 pm, a formal Ejahar in writing was lodged by P.W. 1 and treating the same as the First Information Report, Jalukbari PS Case No. 529/2006, under Sections 147/148/149/26 IPC was registered. During the investigation, the Investigating Officer seized one spade from the place of occurrence. The injured Ukil Ali was referred and shifted to Guwahati Medical College and Hospital where he succumbed to his injuries on 10.11.2006. After the death of Ukil Ali Section 302 IPC was added by the police. Inquest on the dead body was held and the wearing apparels of the deceased was seized. On completion of investigation, charge-sheet under Section 147/148/149/302 IPC was submitted against all the accused appellants. 3. During the trial, charge under Section 302 IPC read with Section 149 IPC was framed against the accused persons. The accused persons pleaded not guilty to the charge and claimed to be tried. 4. Altogether 12 witnesses have been examined by the prosecution in support of its case. The accused persons in their statements recorded under Section 313 Cr. P.C. denied the allegations levelled against them and pleaded that they are innocent. The case of the defence is that of total denial having been falsely implicated in the case. Two witnesses were examined in support of defence case. On conclusion of trial, the learned trial Court convicted the accused appellants and passed sentence against them as mentioned earlier. Aggrieved by their conviction and sentence the appellants had preferred this appeal. 5. I have heard Ms. S.K. Nargis, learned counsel appearing on behalf of the accused appellants and Mr. B.S. Sinha, learned Addl. Public Prosecutor, Assam. 6. It is submitted by Mrs. S.K. Nargis, learned counsel for the appellants that the eye witnesses examined by the prosecution have given a different version as to the assault and presence of accused persons. The statement of witnesses with regard to the weapons used by the accused is also contradictory. It is further submitted that the GD Entry which is the First Information Report lodged to the police implicated Md. Rafiq Ali, Basarat Ali and others. The so-called Ejahar is an afterthought, wherein, all the accused appellants have been named. 7. The learned Addl. PP has submitted that in the GD Entry the name of two accused have been specifically mentioned along with others. Rafiq Ali, Basarat Ali and others. The so-called Ejahar is an afterthought, wherein, all the accused appellants have been named. 7. The learned Addl. PP has submitted that in the GD Entry the name of two accused have been specifically mentioned along with others. The oral information was lodged by the son of the deceased while he was, taking his injured father to the hospital. Therefore, it cannot be excepted from him to narrate the names of all the accused persons in details. The Ejahar was lodged on the same day wherein the names of all the appellants have been mentioned. 8. It is in the evidence of P.W. 1 Ukil Ali that he went to the place of occurrence hearing the hue and cry and found that accused persons assaulting his father. The accused assaulted his father inspire of his resistance. He deposed that Rafiq and Safiq were armed with knife and their mother was holding a spade in her hand and their father had an iron rod in his hand. The accused Safique hit Ukil Ali on his leg with a dagger. Basarat hit P.W. 1's father Ukil Ali with an iron rod on his head. Then Safique's mother hit Ukil Ali with a spade and as a result of which one of his ears almost imputed. When other people including the family members of P.W. 1 came and offered resistance, the accused persons fled away. P.W. 1 collected the spade, sandal and knife left behind by the accused persons. The victim Ukil Ali was taken to Jalukbari PS wherefrom he was sent to Mohendra Mohan Choudhury Hospital and then he was referred to GMCH. After 5/6 days he succumbed to his injuries at GMCH. In cross-examination he stated that the place of occurrence was visible from his house and he arrived at the place of occurrence first. After him, Reshma Begum, Karina Begum and 4/5 persons arrived. He admitted that there had been quarrel between the accused persons with his family members including her father. 9. P.W. 2, Reshma Begum is the daughter-in-law of the deceased. She deposed that when she went to the place of occurrence hearing the hue and cry raised by her father-in-law, she saw the accused Safia hitting his father in his leg with the help of a spade. 9. P.W. 2, Reshma Begum is the daughter-in-law of the deceased. She deposed that when she went to the place of occurrence hearing the hue and cry raised by her father-in-law, she saw the accused Safia hitting his father in his leg with the help of a spade. She saw Rafiq with a knife in his hand and Rafiq's father holding an iron rod, the accused Chand Mahammad had brick in his hand. In cross-examination she stated that on her arrival, she raised hue and cry, people came and then the accused persons fled away. However, in examination-in-chief she had stated that at first his husband's elder brother (P.W. 1) had gone to the place of occurrence. P.W. 3, Musstt. Jahira Begum and P.W. 4, Musstt. Phulchani Begum did not see the occurrence. 10. P.W. 5, Zerina Khatun corroborating the evidence of P.W. 1 and 2 deposed that the victim Ukil Ali had gone to bring biscuit and since he was late, P.W. 5 came out of her house and hearing commotion went to the place of occurrence. She saw the accused Safiq Ali stabbed her father in law (deceased) while he was lying on the ground. She also noticed spade in the hand of Safiq's mother. She also saw blood stain in his mother's hand. She noticed cut injury in the ear of the deceased. According to her all accused were armed with weapons. In cross examination she stated that on the preceding night of the occurrence there was a fight between the victim and the accused persons and Rafiq's father had sustained head injury. When she arrived at the place of occurrence she saw Reshma Khatun (P.W. 2), Saheda Khatoon and Maniruddin (P.W. 6). She also claimed that she arrived at the place of occurrence first. 11. P.W. 6, Md. Manir Uddin, is the neighbor of the victim. He deposed that at the time and date of occurrence, the accused Safia and Rafiq came from the side of Ukil Ali's house and told that they would break the hands and legs of Ukil Ali and he should not disturb them. When they left his house and when P W 6 saw Ukil Ali coming out of his house, he and his wife stopped him and told him not to go that side else he would be beaten. Thereafter, Ukil went to a nearby shop to bring some articles. When they left his house and when P W 6 saw Ukil Ali coming out of his house, he and his wife stopped him and told him not to go that side else he would be beaten. Thereafter, Ukil went to a nearby shop to bring some articles. P.W. 6 saw the occurrence from a distance of 25 ft. He deposed that Rafiq gave blow in the head of Ukil, Safiq attempted to stab in the Ukil's stomach with a pointed knife. Safiq stabbed Ukil aiming at his neck with a spade and when Ukil moved aside the blow lander on his ear and as a result the ear got almost cut. Out of fear this witness left to his home. In his cross examination he stated that he saw the appellant first and out of fear he left the place. P.W. 7, Mansur Ali is the son of the deceased. He also claimed that he saw accused persons assaulting his father. His father sustained fracture in his hand and his ear was cut. His legs were injured by means of a dagger. Immediately, after the occurrence the injured father was taken to the police station and then to the hospital. The injured succumbed to is injuries at GMCH. In cross examination, he, however, admitted that he had not seen the occurrence. He had seen the accused persons at the place of occurrence. 12. P W 8, Saheda Khatun turned hostile to the prosecution. She only deposed that she saw the victim lying on the ground with injuries. P.W. 9 Raja Ahmed claimed that he saw the incident from the veranda of his house. The accused persons assaulted the victim with spade, iron rod, knife etc and after assaulting him they (accused persons) left the place. He stated that after the incident he took the injured Ukil Ali to police station. 13. Dr. R. Chaliha (P.W. 10) held post mortem examination on the dead body of Ukil Ali on 10.11.2010 at GMCH and found the following injuries:-- (1) One stitched wound over the left ear 5 cm in length with three stitched. (2) Stitched wound over left frontal temporal occipital region 15 cm length with stitches. (3) One stitched over the lower one third of the left thigh 3 X 1 cm. The thoracic organs are congested and healthy. Abdominal organs are congested and healthy. Stomach is healthy and empty. (2) Stitched wound over left frontal temporal occipital region 15 cm length with stitches. (3) One stitched over the lower one third of the left thigh 3 X 1 cm. The thoracic organs are congested and healthy. Abdominal organs are congested and healthy. Stomach is healthy and empty. The scull was contused on the left side. The membrane was stitched and congested on the left side. Extra dural haemorrhage was present over the left frontal parietal region. Sub dural haemorrhage was present all over the brain. Brain was congested. 14. In the opinion of the doctor, death was due to coma as a result of injuries to the head as described above. The injuries were ante-mortem in nature being caused by blunt force impact. P.W. 10 was not cross-examined. The ocular evidence that the victim sustained injuries in his ear, head and leg has, thus, been corroborated by the medical evidence. Although, the doctor stated that the injuries were caused by blunt force impact, he had performed the postmortem examination after the deceased was being treated at Mahendra Mohan Choudhury hospital and found stitched wounds. Since the wounds were stitched it would not had been possible for the doctor to opine whether the injuries were caused by blunt force impact or by any sharp weapon. The fact, that the death of the deceased was homicidal in nature and was due to coma, as a result injury to the head, has not been disputed. Therefore, it can be safely held that the death of the deceased was homicidial in nature. 15. P.W. 11, is the Investigating Officer. He confirmed that P.W. 9 did not see the incident. P.W. 9 in his statement before him, had stated that he had gone to the hospital and saw the injured there. He was re-examined and he exhibited the GD entry. He could not say who took the injured to hospital. P.W. 12, Rahul Amin the Officer-in Charge of Jalukbari PS deposed that on 3.11.2006 at about 8 am Jakir Ali informed him that the accused, Basarat Ali, Rafiq Ali and others assaulted his father causing injuries to his head. P.W. 12, entered the information in the general diary and sent the injured to hospital. The informant was asked by him to lodge a written Ejahar. On the same day, Md. Jakir lodged the written Ejahar. P.W. 12, entered the information in the general diary and sent the injured to hospital. The informant was asked by him to lodge a written Ejahar. On the same day, Md. Jakir lodged the written Ejahar. On the basis of Ejahar so lodged the police case was registered. In his cross examination he stated that Jakir Ali did not inform him about the weapon used by the accused to assault his father. At the time of lodging oral information the informant came along with his injured father. P.W. 12, could not ask the injured about the incident, as he was not in a position to talk. 16. From the above discussion, it transpires that P.W. 1, 2, 5, 6, 7 and 9 have claimed themselves to be the eye witnesses. P.W. 1 has not implicated accused Chand Mahammad. While P.W. 2 has not implicated the accused Rafiq Ail, P.W. 6 has not mentioned the name of Basarat Ali and Chand Mahammad. P.W. 9 has not mentioned the name of Chand Mahammad. The evidence of the aforesaid witnesses are also inconsistent with regard to the use of weapon. P.W. 1 and P.W. 2 have admitted that there had been quarrel between the accused persons and the victim's family and due to the enmity the accused persons were not in visiting terms with the victim's family. From the evidence of P.W. 6 it appears that the victim was inimical to the accused persons. 17. In this case, P.W. 1,2, 5 and 6 are the relatives of the deceased and therefore, they are interested witnesses. The evidence given by P.W. 1,2,5 and 6 is contradictory to each other on material point. There are discrepancies about the presence of all the accused persons, weapons used by them and their time of arrival at the place of occurrence. P W 7, although claimed himself as eye witness in cross-examination, he admitted that he did not see who assaulted his father. P.W. 9, who is the neighbor and independent witness did not state before the I.O. that he saw the incident. In his statement under Section 161 Cr.P.C. he stated that he had gone to the hospital and saw the injured there. He did not state that he had seen the occurrence. Police has not seized the knife and sandal left by the accused persons which were in possession of Jakir Hussain(P.W. 1). 18. In his statement under Section 161 Cr.P.C. he stated that he had gone to the hospital and saw the injured there. He did not state that he had seen the occurrence. Police has not seized the knife and sandal left by the accused persons which were in possession of Jakir Hussain(P.W. 1). 18. Thus, from the aforesaid evidence it is difficult to ascertain as to who actually inflicted fatal blow on the deceased. Moreover, there is evidence of P.W. 6, Maniruddin, which suggests that while the accused Safiq attempted to gave a blow in the stomach of the deceased with his knife, the accused Basarat restrained him saying that the victim may die and then the accused Safiq gave blow in his leg. The evidence of P.W. 6 suggests that the accused persons had no intention to kill the deceased and therefore, their conviction under Section 302 IPC read with Section 149 [PC is not proper. P.W. 1 has stated that the accused left spade, sandal and knife at the place of occurrence. The I.O. in his re-examination has stated that Jakir's wife snatched away the spade from Dhangla's (Safique Ali) mother. 19. In the case of Raguveer Yadav v. State of Bihar, (1995) 4 SCC 392 it was held that where there are party faction, there is a tendency to include the innocent with the guilty and it is extremely difficult for the Court to guard against such danger. It was pointed out that real safeguard against the risk of condemning the innocent with the guilty lies, in insisting of acceptable evidence which in some measure implicates such accused and satisfies the conscience of the Court. Here in this case, in the GD entry which is the first information only the names of the accused Basarat Ali and Safiq Ali were mentioned, whereas the accused Basarat Ali has not been implicated by P.W. 6. The accused Chand Mohammad has not been implicated by P.W. 1, 6 and 9. P.W. 2 and 5 have also not mentioned the name of accused Rafiq. 20. In view of the aforesaid discussion, we find it risky to uphold the conviction passed against the accused appellants. The accused appellants are, therefore, entitled to get benefit of doubt. Accordingly, the conviction and sentence passed by the learned trial Court in Sessions Case No. 130(K) of 2008 is hereby set aside. 20. In view of the aforesaid discussion, we find it risky to uphold the conviction passed against the accused appellants. The accused appellants are, therefore, entitled to get benefit of doubt. Accordingly, the conviction and sentence passed by the learned trial Court in Sessions Case No. 130(K) of 2008 is hereby set aside. The accused appellants are acquitted and set at liberty forthwith. Return the LCR along with a copy of this judgment.