Judgment Dharnidhar Jha, J. The solitary appellant, Komal Devi, the daughter-in-law of the informant, P.W. 11, Buchchi Devi, was indicted under Section 302 of the Indian Penal Code for having hacked her father-in-law, Vedanand Jha, a man aged about 80-81 years to death by using a dabia. Indictment was made by the learned Presiding Officer, Fast Track Court, V, Saharsa, by framing a formal charge under Section 302 of the Indian Penal Code so as to putting the solitary appellant on trial in Sessions Trial No. 181 of 2004. The judgment in the case was delivered on 29.11.2005 and the appellant was convicted of committing the offence, she has been charged with. 2. The appellant was heard on sentence on 30th November, 2005, and she was directed to serve rigorous imprisonment for life. The learned Judge did not impose any sentence of fine. The appellant preferred the present appeal to challenge the above said judgment and order of sentence passed against her. 3. The prosecution narration is contained in Annexure 2, the fardbeyan of P.W. 11, Buchchi Devi, recorded on 24.03.2004 at 03.00 a.m. in Sadar Hospital, Saharsa. It was stated by P.W. 11 that the deceased, Vedanand Jha, and the informant had two sons, namely, Kanhaiya Jha and Madhav Jha out of whom Kanhaiya Jha was married to present appellant, Komal Devi. There used to be fight between the family members about properties and, as such, a formal partition was made some 8-10 years before and 1/3rd of the properties was allotted in each of the shares of the father and his two sons. On account of having attained an old age, the deceased Vedanand Jha was not in a position to earn livelihood and, as such, the deceased used to alienate part of the properties in his share so as to sustaining his survival. The alienation of properties by the deceased used to cause heart burn in Kanhaiya Jha and the present appellant and on that account the deceased used to be abused and ill-treated by the present appellant. 4. It so happened on 23.03.2004 that while the deceased was enjoying his after noon siesta after taking lunch at his darwaza, this appellant Komal Devi, came there with a dabia (a heavy sharp cutting weapon) at 12.00 a.m. and dealt 3-4 blows with the weapon on the head of the deceased with intent to kill him. 4. It so happened on 23.03.2004 that while the deceased was enjoying his after noon siesta after taking lunch at his darwaza, this appellant Komal Devi, came there with a dabia (a heavy sharp cutting weapon) at 12.00 a.m. and dealt 3-4 blows with the weapon on the head of the deceased with intent to kill him. Multiple cut injuries were caused to the deceased in his head and he started bleeding. On hulla witnesses, like, P.W. 2 Suman Jha, P.W. 4 Madan Jha and others rushed to the scene of occurrence and they also shifted the deceased to Mahishi Hospital from where the Doctor had referred him to Sadar Hospital, Saharsa, for treatment where he died. 5. As may appear from the evidence of P.W. 13, Sub Inspector of Police Nilesh Kumar, on receipt of the fardbeyan (exhibit 2) in Mahishi Police Station, the first information report (exhibit 5) was drawn up on that basis by him. The inquest report was also accompanying the copy of the fardbeyan and after drawing upon the first information report, P.W. 13 Sub Inspector of Police Nilesh Kumar, took up the investigation of the case himself. He came to the place of occurrence. It was the darwaz of deceased, Vedanand Jha, constructed by tat and thatch. There was a chowki, kept in it, which as per information given to P.W. 13 was used by the deceased for laying down. There was a bed sheet on it along with pillow cover kept there and both the bed sheet and the pillow cover were found having blood stains. The two were seized by preparing seizure memo (exhibit 4). To the north of the darwaza was a brick laden village road whereas to it’s south was the house of one Baijnath Jha and, further, south to that house was the barren land of Vednanand Jha, to the east and west of darwaza were the houses of Shambhu Jha and Anand Choudhary. The investigating officer questioned the witnesses, like Suman Jha (P.W. 2), Madan Jha (P.W. 4), Manoj Kumar Choudhary (P.W. 8), Mahikant Jha (P.W. 9) and Shambhu Jha (not examined), besides Umesh Kamat (P.W. 1) and recorded their statements in the case diary. P.W. 13 collected the post mortem examination report and after completing the investigation sent the solitary appellant, Komal Devi, who had surrendered herself to the custody of the Court, for trial. 6. P.W. 13 collected the post mortem examination report and after completing the investigation sent the solitary appellant, Komal Devi, who had surrendered herself to the custody of the Court, for trial. 6. The defence of the appellant, Komal Devi, was of complete innocence and also of false implication for the reason that she and Kanhaiya Jha had affairs and they decided to marry eath-other, which was not liked by the deceased and the informant and that was the reason that the couple had to live in a different house away from that retained by the deceased and lastly she was implicated in the case falsely. The appellant did not challenge that the deceased died of injuries. 7. In support of the charges the prosecution examined a total number of thirteen witnesses out of whom P.W. 6, Bablu Paswan, was the witness of formal character whereas P.W. 9, Mahikant Jha, was witness to the inquest proceedings and had signed the document, the inquest report. Another formal witness, P.W. 12 Jai Kant Yadav, brought on record the seizure memo which was in the hand of P.W. 13 and the document was marked exhibit 4 by the trial Judge. So far as other witnesses were concerned, P.W. 10 Dr. Sachchidanand Roy had held post mortem examination on the dead body of Vedanand Jha and had issued the post mortem examination report (exhibit 3) P.W. 1 Umesh Kamat P.W. 7 Sohan Jha, and P.W. 11 Buchchi Devi, are eye witnesses. P.W. 2 Suman Jha, P.W. 3 Kanhaiya Jha, P.W. 4 Madan Jha, P.W. 5 Munna Pathak, and P.W. 8 Manoj Kumar Choudhary, had not seen the occurrence themselves. While P.W. 8 Manoj Kumar Choudhary, claimed to have learnt about the incident from P.W. 4 Madan Jha, P.W. 3 Kanhaiya Jha, and others. The remaining witnesses, like P.Ws. 2 Suman Jha, P.W. 3 Kanhaiya Jha, P.W. 4 Madan Jha, and P.W. 5 Munna Pathak stated that they had been attracted to the place of occurrence on hulla and found the appellant running away with a dabia and further, found the deceased lying in an unconscious condition in a pool of blood when they all shifted him to Mahishi Hospital. Thus, the prosecution appears relying on the evidence of P.W. 1, Umesh Kamat, P.W. 7, Sohan Jha, and P.W. 11, Buchchi Devi. 8. What we found from the evidences of P.Ws. Thus, the prosecution appears relying on the evidence of P.W. 1, Umesh Kamat, P.W. 7, Sohan Jha, and P.W. 11, Buchchi Devi. 8. What we found from the evidences of P.Ws. 1, 7 and 11 so that P.W. 1 claimed his presence at the seen of the occurrence by stating that he had gone there to sink a tube well and was sitting on the darwaza of the deceased when the appellant came with a dabia and gave 3-4 blows to the deceased, who was sleeping on a chowki. P.W. 7 Sohan Jha, stated that he had come without any rhyme and reason to gossip with the deceased and the deceased was sitting on the chowki and the witness sat on the ground and was talking to him when the appellant appeared there in a fit of rage holding high the dabia to wield four blows which fell at a single place on the head of the deceased. He, further, stated that the appellant was shouting that she was to kill the deceased on that particular day. 9. Thus, what we find is that there is variance in evidence of P.Ws. as regards the position of the deceased when he was assaulted by the present appellant. P.W. 1 had made him to sit at the chowki while P.W. 7 made him to sit there on it. P.W. 11 probably came across the difficultly which was presented by P.Ws. 1 and 7, as regards the position of the deceased and she did not speak a word in her examination-in-chief as may appear from paragraph 1 of her evidence as to what was the position when the deceased was assaulted with dabia by the present appellant. We further find that the claim of P.W. 11 that he had come to sink a tube well does not appear borne out from two sources. We further find that the claim of P.W. 11 that he had come to sink a tube well does not appear borne out from two sources. P.W. 11, the informant of the case, did not state that P.W. 1 had come to sink any tube well and had, in fact, stated that while she was getting her tube well repaired, P.W. 1 was present there in her Aagan when we attempted to make further enquiry regarding the claim of the two witnesses on the presence of P.W. 1 at the scene of occurrence or anywhere around it by looking to the evidence of P.W. 13, the investigating officer, we found that the investigating officer, during the course of investigation had not found any tube well anywhere around the place of occurrence. He was categorically making that statement in paragraph 8 at page 80 of the paper book when he stated that if he had found any tube well there at the place of occurrence, he must have recorded it in the case diary. Thus, we find that the presence of P.W. 1 does appear doubtful as his own claim has not been corroborated by objective finding of the investigating officer, P.W. 13. 10. While perusing the evidence of witnesses, like P.Ws. 1, 2, 3, 4, 5 and 7, we found that there was a single common reason in evidence of all witnesses, except P.W. 1, for their presence at the scene of occurrence. All the witnesses stated that they were moving by motorcycle and they were moving with a particular purpose, except P.W. 7, who was stating that he had come to talk to the deceased. However, P.W. 7 was also very far in admitting in paragraph 5 at page 46 of the paper book that he did not have any purpose for coming to the house of deceased rather it was a aimless arrival of the witness and he clame and started gossiping with him. We do not get persuaded by the evidence of P.W. 7. The distance of the houses of the witnesses who were roaming around on motorcycles, we have found, was somewhere in between 1-2 KMs. The village where the incident had taken place as per evidence of P.W. 13 was populated by four thousand persons and was spread in an area of three kilometers as may appear from paragraph 6 of P.W. 13. The village where the incident had taken place as per evidence of P.W. 13 was populated by four thousand persons and was spread in an area of three kilometers as may appear from paragraph 6 of P.W. 13. There were 16 wards in the village and it appeared that the village was divided in two gram panchayats and P.W. 8 Manoj Kumar Choudhary was Mukhiya of one of the gram panchayats of the same village. Roaming around and coming accidentally to the house appears in our opinion, a very convenient mode of claiming the presence by the witnesses. That was the reason that most of them, like, P.Ws. 2, 3, 4 and 5 were statingthat they had not seen the real part of the occurrence and they had seen the appellant running away with the dabia throiugh the gali which was situated to the west of the darwaza of the deceased. We, again, were holding an enquiry as to whether there was a gali or a pathway running anywhere in the west of the darwaza of the deceased, the place of occurrence as appeared from the statement of the witnesses and we again found from the evidence of P.W. 13 that he did not find any gali or lane passing in the west of the darwaza. This evidence is available in paragraph 5 of P.W. 13 at page 80 of the paper book. Thus, the very claim of witnesses that they had seen the appellant running away through the lane appears not acceptable. 11. Coming to the manner of occurrence, P.W. 7 Sohan Jha, one of the eye witnesses along with P.W. 1 Umesh Kamat appeared stating that the appellant was had holding the dabia which as per P.W. 5, Munna Pathak was almost around one and half feet long and was a couple iron structure. The appellant lifted the dabia up to her head and then wielded each blow by both hands. As regards physique of the appellant, P.W. 1 Umesh Kamat has stated that she was quite hail and hearty and the blows, which were wielded by the appellant, resulted in bleeding wounds so much so that the blood oozing out of the wounds was splattered all over. As regards physique of the appellant, P.W. 1 Umesh Kamat has stated that she was quite hail and hearty and the blows, which were wielded by the appellant, resulted in bleeding wounds so much so that the blood oozing out of the wounds was splattered all over. P.W. 7 Sohan Jha had stated that the appellant came raising dabia in a fit of rage and shouting and stating that she will kill the old man on that day and she successively gave four blows to the deceased, which fell on one single part of the head so much so that the brain matter had come out of the skull. No witness had stated that they had seen any part of the brain matter popping out of any injury which appeared on the head of the deceased. 12. Thus what we find is that the witnesses appeared in making statements from investigation as regards the manner of occurrence. As per the evidences of P.Ws. 1 and 7, the injuries ought to have been sharp cutting injuries caused by such a sharp cutting weapon, like dabia. However, in order to satisfy our conscience as regards the narration of manner of occurrence by the witnesses we read the evidence of P.W. 10, Dr. Sachchidanand Roy, who had found the following injuries on the dead body : (i) Bruise, blackish in colour on both left and right eyes. (ii) Lacerated wound 3”x1/2”x bone deep on the left side of the parietal bone. (iii) Lacerated wound 3”x1/2”x bone deep on the posterior aspect of the vertex. (iv) Lacerated wound 5”x1/2”x skin deep on the middle of the head with fracture of the underneath bone. (v) Lacerated wound 4”x1/2”x skin deep on the lateral aspect of the right side of the head. On internal examination, P.W. 10 had found fracture of scalp bones with laceration of the brain matter and meninges. Blood clots were present underneath the scalp bone. In the opinion of P.W. 10 death had occurred due to haemorrhage ensuing on account of head injuries within 24 hours of holding of the post mortem examination. 13. It was contended by Mr. Blood clots were present underneath the scalp bone. In the opinion of P.W. 10 death had occurred due to haemorrhage ensuing on account of head injuries within 24 hours of holding of the post mortem examination. 13. It was contended by Mr. Pramod Mishra, the learned counsel appearing for the informant that the Doctor holding post mortem examination had given an opinion that if the sharp cutting part of the weapon had turned blunt then in that case injuries of the nature and description found by P.W. 10 Dr. Sachchidanand Roy were possible. 14. We may point out that when the evidence of prosecution story was that the appellant had picked up a heavy sharp cutting weapon, like a dabia, then it ought to be presumed that she had picked up the weapon only on account of the same being useful in giving the blows so as to causing the intended injuries upon the desired part. Thus, the presumable under ordinary circumstance ha to be that the weapon was bearing sharp cutting edge and the blows were wielded by the sharp cutting part of the weapon and, further, that the blows had hit the part of the body intended to be struck by the sharp cutting part of the weapon. 15. The learned trial Judge also appeared conjucturizing while writing his judgment, as appears from paragraph 15 that the sharp cutting part of the weapon might have turned blunted and, as such, the resultant lacerated injuries were found by the Doctor. 16. We do not find any witness stating that the weapon was appearing blunted edge or that it was used by its blunt part so as to causing lacerated injuries. We have already noted that presumption under ordinary circumstance would be of using the weapon so as to striking the part of the body of the deceased by it’s sharp cutting edge. The learned Judge in absence of any evidence so as to explaining away the use of the weapon, in our opinion, had no occasion or reason to conjucturize and note that the sharp cutting part of the weapon might have been blunted. 17. A similar statement and situation had also arisen in Hallu Vrs. State of Madhya Pradesh (A.I.R. 1974 S.C., 1936) and we find that the Apex Court was also raising the same inference as we have done in face of the testimony witnesses. 18. 17. A similar statement and situation had also arisen in Hallu Vrs. State of Madhya Pradesh (A.I.R. 1974 S.C., 1936) and we find that the Apex Court was also raising the same inference as we have done in face of the testimony witnesses. 18. We have already referred to the evidence of P.Ws. 1 and 7 as regards the use of the weapon and that does not leave any doubt that as per the witnesses the weapon was raised up to the head and blows were given with all force by it’s sharp cutting part by the appellant with great momentum and force. We want to note that if there is clear unexplained conflict between oral evidence and medical testimony, the inference to be drawn that the witnesses might not be present at the scene of occurrence and had not really seen the manner of assault and they were probably making statements out of their imagination because of tutoring by others interested in the prosecution. 19. There was a suggestion given to the witnesses that they had been set-up by P.W. 8 Manoj Kumar Choudhary who was Mukhiya of one of the Panchayats of the village and who also happened to be the son-in-law of the deceased. P.W. 8, himself, admitted in paragraph 1 at page 50 of the paper book that he was the son-in-law of Vedanand Jha. We have already noted that the witnesses were all chance witnesses having not inspired our confidence on account of the reason that we have doubted their claim of being present at the place of occurrence. 20. The defence suggestion that Komal Devi and Kanhaiya Jha, one of the sons of the deceased, had married against the will of their parents is an admitted fact of the death of the deceased. P.W. 8 Manoj Kumar Choudhary who had also stated in paragraph 5 that Kanhaiya Jha and the present appellant had married each-other against the will of their parents. There is suggestion given to the witnesses that the parents were not having no attention for the appellant and, as such, the appellant was falsely implicated. 21. It is true that the deceased, Vedanand Jha, received injuries, but, as we have already noted the manner of giving the injuries has not been corroborated. We have found the witnesses not trustworthy on account of their presence being doubtful. 21. It is true that the deceased, Vedanand Jha, received injuries, but, as we have already noted the manner of giving the injuries has not been corroborated. We have found the witnesses not trustworthy on account of their presence being doubtful. The case, in our opinion, suffers from serious vice of the witnesses not being trustworthy and, as such, the prosecution appears to have failed in the proof of the charges. We found that it was a case in which Komal Devi, ought to have been acquitted. 22. In the result, the appeal succeeds and the same is allowed by setting aside the judgment of conviction and order of sentence, passed against the appellant. The appellant is in prison, she shall be set at liberty forthwith if not wanted in any other case. Appeal allowed.