Judgment This appeal is directed against the judgment of conviction and order of sentence dated 21.07.2005 passed by the then 1st Additional Sessions Judge, Dumka in Sessions Case No.208 of 2002, whereby and whereunder the appellant No.2 Bahamuni Murmu and also her husband i.e. appellant No.1 Baburam Kisku (since died during pendency of this appeal) having been found guilty for committing murder of one Kalia @ Kailash Yadav has been convicted under Section 302 of the Indian Penal Code and also under Section 307 of the I.P.C for attempting to commit murder of Bideshi Rai, Kanchan Yadav and Baidyanath Yadav. 2. It is the case of the prosecution that on 11.04.2002 at about 4:00 p.m. while the informant, Baidnath Yadav (P.W. - 6) was sitting in front of the house of Bhola Mahto, he heard children raising alarm that the appellant No.1 Baburam Kisku has been assaulting Kalia @ Kailash Yadav with tangi and the appellant No.2 Bahamuni Murmu wife of Baburam Kisku has been assaulting with dav. On hearing when he came to the house of Baburam Kisku he saw Baburam Kisku assaulting Kalia @ Kailash Yadav with tangi. On seeing this he tried to rescue Kalia @ Kailash Yadav but Baburam Kisku assaulted him with tangi on his back. Thereupon he fled away from there. Subsequently, when Bideshi Rai (P.W. - 3) and Kanchan Yadav (not examined) came there, they were assaulted by Baburam Kisku and also by the appellant No.2 Bahamuni Murmu. 3. Thereafter, Baidnath Yadav (P.W. - 6) came to Jarmundi Police Station where he gave his fardbeyan (Ext.- 4) which was recorded by Kiran Kumar (P.W. - 7), on the basis of which a formal F.I.R was drawn. P.W. - 7 himself took up the matter for investigation. In course of investigation he visited the place of occurrence i.e. the house of the appellants where dead body was found lying. He held inquest on the dead body and then sent the dead body for autopsy, which was done by Dr. Anant Kumar Jha (P.W. - 4) who did find following ante-mortem injuries on the person of the deceased :- 1. Incised wound (deep) over left popliteal Fosaa cutting across the joint with fracture of left femur (lower end) attached with a skin tag of 1” breadth on medial side. 2. Incised wound (deep) on right side neck 3” x 1½” x 2” deep. Incised wound (deep) over left popliteal Fosaa cutting across the joint with fracture of left femur (lower end) attached with a skin tag of 1” breadth on medial side. 2. Incised wound (deep) on right side neck 3” x 1½” x 2” deep. On dissection, common cortoid artery and other vessels were found cut with huge collection of blood. 3. Incised wound below left eye over face 2½” x ½” x bone deep cutting across the uper lip and incised wound below left ear 2½” x 1” x bone deep. 4. Incised wound over right scapular region 3” x 2” x bone deep. 5. Multiple abrasion on chest. According to the doctor, the death was caused due to haemorrhage and shock as a result of injury Nos. 1 & 2, which was sufficient to cause death in ordinary course of nature. The doctor prepared the post-mortem report (Ext. - 2). 4. The investigating officer recorded the statements of other witnesses and on completion of the investigation submitted charge sheet, upon which cognizance of the offence was taken against this appellant as well as her husband Baburam Kisku (since died during the pendency of this appeal). Upon commitment of the case, this appellant as well as her husband were put on trial during which prosecution examined 7 witnesses. Of them P.W. 1 Pramod Yadav and P.W. - 2 Ramu Khirhar, are hearsay witnesses whereas P.W. - 3 Bideshi Rai, the co-villager is an eye witness. According to him he saw Baburam Kisku assaulting the deceased with tangi whereas this appellant was assaulting with dav. According to him he was also assaulted by them as a result of which he received injury. Another eye witness is the informant i.e. P.W. - 6, who has testified that upon hearing alarm raised by the children, when he came to the house of this appellant he saw Baburam Kisku assaulting the deceased with tangi and this appellant assaulting the deceased with dav. He has further testified that when he came to rescue Kalia @ Kailash Yadav he was also assaulted on his abdomen repeatedly by Baburam Kisku. The prosecution has not only failed to bring injury report of P.W.-3 and P.W.-6 but has also failed to examine the doctor who had examined them. However, one Dr. He has further testified that when he came to rescue Kalia @ Kailash Yadav he was also assaulted on his abdomen repeatedly by Baburam Kisku. The prosecution has not only failed to bring injury report of P.W.-3 and P.W.-6 but has also failed to examine the doctor who had examined them. However, one Dr. Manjunth Jha, P.W.-5, has been examined, who has proved the injury report of Kanchan Yadav but Kanchan Yadav has not been examined by the prosecution. 5. The Court after putting reliance on the testimony of P.W. - 3 and P.W. - 6 did find the appellant and appellant's husband guilty for the offence not only under Section 302 IPC but also under Section 307 IPC for making an attempt to kill P.W. - 3, P.W. - 6 and also one Kanchan Yadav, though the prosecution had failed to bring the injury report either of P.W. - 3 or P.W. - 6 on record. The injury report of Kanchan Yadav was brought on record, but Kanchan Yadav has not been examined as witness. The Court having found the appellant guilty passed order of sentence as aforesaid. 6. The appellant on being convicted has preferred Jail Appeal. 7. Mrs. Priya Shrestha, who has been appointed as Amicus Curiae to assist the Court, submits that though P.W. - 3 and P.W. - 6 claim themselves to be an eye witnesses, but the testimonies of the witnesses are contradictory to each other and therefore the Court should not have placed reliance on their testimonies. Further, it was submitted that the aforesaid two witnesses have testified that this appellant assaulted the deceased with dav, but according to the evidence of the investigating officer, when he visited the place of occurrence he did not find dav smeared with blood though the tangi was found to be smeared with blood which does suggest that this appellant had not caused any injury to the deceased by dav. Thus, the aforesaid fact creates doubt over the testimonies of the eye witnesses, and therefore their testimonies, so far as it relates to this appellant, are fit to be rejected. Learned counsel further submits that the appellant had been charged for the offence under Section 307 I.P.C for making an attempt on life of P.Ws – 3, 6 and Kunchan Yadav, but prosecution has not brought any injury report with respect to P.Ws. Learned counsel further submits that the appellant had been charged for the offence under Section 307 I.P.C for making an attempt on life of P.Ws – 3, 6 and Kunchan Yadav, but prosecution has not brought any injury report with respect to P.Ws. - 3 & 6 nor any doctor has been examined. Further, it was pointed out that prosecution though has proved the injury report of Kunchan Yadav by examining the doctor who had treated Kanchan Yadav, but Kanchan Yadav has never come forward to depose in this case. Under the circumstances, it was submitted that the Court committed illegality in convicting the appellant for the office under Section 307 of the Indian Penal Code. 8. As against this, learned counsel appearing for the State submits that in view of the testimonies of P.W. - 3 & 6 the eye witnesses, the Court seems to be justified in recording the order of conviction and sentence under Section 302 of the Indian Penal Code, which needs no interference. 9. Having heard learned counsel appearing for the parties and on perusal of the record, we do find that two witnesses P.W. - 3 & P.W. - 6 have come forward to testify that this appellant and her husband Baburam Kisku (died) did assault the deceased Kalia @ Kailash Yadav in their house. According to them Baburam Kisku assaulted the deceased with tangi whereas this appellant did assault the deceased with dav. It be noted that the testimony of P.W.-3 does suggest that he had entered into the house of the appellant earlier than P.W.-6. He is silent over the presence of P.W.-6 indicating therein that while P.W.-3 was there at place of occurrence P.W.-6 had not reach there and therefore P.W.-6 may not have seen the appellant and her husband assaulting the deceased as P.W.-6 has himself testified that while he was sitting in front of the house of Bhola Mahto, he heard children saying that the appellants have been assaulting the deceased only then he came to the house and still he claims to have seen the appellant and her husband assaulting the deceased which does not appear to be believable as P.W.-3 who was there from before has testified that he saw this appellant and her husband assaulting the deceased. If the accused persons went on assaulting the deceased after P.W.-3 left the place the doctor could have found much more injuries on the person of the deceased which is not there. This at least suggests that they are not giving a true picture. This observation gets strengthen from the fact that this appellant and her husband, as per the evidence of the investigating officer, had lodged a case against the deceased prior to lodgment of the case by the informant. Further, the testimonies of P.W. - 3 and P.W. - 6 to the effect that this appellant also did assault the deceased, gets falsified from the fact noted by the investigating officer that there was no blood stain over the dav. 10. Under the circumstances, we find that this appellant in the facts and circumstances, as stated above, deserves benefit of doubt so far as the charge under Section 302 I.P.C is concerned and so far as the conviction under Section 307 I.P.C. is concerned the Court seems to have committed illegality as we have already noted above that the prosecution neither proved the injury report of the injured P.W.-3 and P.W.-6 nor Kanchan Yadav has been examined. Accordingly, the judgment of conviction and order of sentence passed by the trial court in Sessions Case No.208 of 2002 is hereby, set aside so far as appellant No.2 is concerned. Consequently, the appellant is hereby acquitted and is directed to be released forthwith, if not required in any other case. 11. Thus this appeal stands allowed.