JUDGMENT : I. A. ANSARI, J. Under the judgment and order, dated 28.06.1993, passed, in Sessions Trial No. 163 of 1991/530 of 1985, by learned 10th Additional Sessions Judge, Gaya, the appellants, Dukhit Mahto, Meghu Mahto and Kuleshwar Mahto, stand convicted under Section 302 read with Section 34 of the Indian Penal Code. Following their conviction, the accused-appellants have been sentenced to suffer imprisonment for life. 2. The case of the prosecution, as unfolded by the First Information Report (Exhibit-3), lodged by the informant, Sheo Shankar Prasad (PW 6), may, in brief, be described as under: (i) On 04.05.1985, at about 6:00/7.00 PM, accused Dukhit Mahto @ Dukhi Mahto started abusing Karndeo Prasad (PW 5), son of the informant, Sheo Shankar Prasad (PW 6), that he had stolen bricks belonging to Dukhit Mahto. As Karndeo Prasad denied to have stolen the bricks, an altercation ensued. At the time, when the altercation between accused Dukhit Mahto, on the one hand, and the informant’s son, Karndeo Prasad (PW 5), on the other, was on, the informant, Sheo Shankar Prasad, went there and asked Dukhit Mahto, Madhu Mahto and Kusheshwar Mahto not to use abusive language and tried to explain to them that the bricks had been brought from one Shyam Sundar. On the intervention of the informant, the three accused aforementioned surrounded the informant and started assaulting him by lathis. The informant sustained injuries on his person. On witnessing the occurrence, when the informant’s wife, Satiya Devi, went forward to save her husband, she was assaulted indiscriminately by means of lathis. Having sustained injuries, Satiya Devi fell unconscious. With the help of Yogendra Prasad (PW 2), Deo Kumar Prasad (PW 3) and some other co-villagers, informant (PW 6), carried his wife, Satiya Devi, to Mohanpur State Dispensary, where, having given initial treatment to Satiya Devi, she was referred to Golpathar Hospital at Gaya. (ii) On the following day, i.e., on 05.05.1985, at about 3.30 PM, the informant went to Barachatti Police Station and orally informed the police about the occurrence. The information, so given by the informant as regards the occurrence, was reduced into writing in the form of his fardbeyan and treating the said fardbeyan as First Information Report, Barachatti Police Station Case No. 42 of 1985, under Sections 323/34 of the Indian Penal Code, was registered against the accused persons, namely, Dukhit Mahto, Meghu Mahto and Kuleshwar Mahto. 3. 3. During investigation, as injured Satiya Devi succumbed to her injuries, Section 302 of the Indian Penal Code was added, on 21.05.1985, to the case aforementioned. Inquest was held over her dead body, which was also subjected to post mortem examination, and, on completion of investigation, a charge sheet was laid, under Section 302/323/34 of the Indian Penal Code, against the accused aforementioned. 4. At the trial, when a charge, under Section 302 read with Section 34 of the Indian Penal Code, was framed against the three accused persons, namely, Dukhit Mahto, Meghu Mahto and Kuleshwar Mahto, they all pleaded not guilty thereto. 5. In support of their case, prosecution examined altogether 9 (nine) witnesses. The accused were, then, examined under Section 313 (1) (b) of the Code of Criminal Procedure and, in their examinations aforementioned, all the accused denied that they had committed the offence, which was alleged to have been committed by them, the case of the defence being that of denial. No evidence was adduced by the defence. 6. Having, however, arrived at the finding that accused-appellants, Dukhit Mahto, Meghu Mahto and Kuleshwar Mahto, had been proved guilty of the charge under Section 302 read with Section 34 of the Indian Penal Code, the learned trial Court convicted them accordingly. Following their conviction, sentence has been passed against the convicted persons as mentioned above. 7. Aggrieved by their conviction and the sentence passed against them, all the convicted persons have preferred this appeal. 8. We have heard Mr. Neeraj Kumar @ Sanidh, learned Counsel, appearing as Amicus Curiae, and Mr. Ajay Mishra, learned Additional Public Prosecutor, appearing on behalf of the State. 9. While considering the present appeal, let us, first, take note of the medical evidence on record with regard to the initial treatment provided to Satiya Devi (since deceased) by Dr. Sachidanand Prasad (PW 7) and also the examination and treatment of her husband, Sheo Shankar Prasad, and her son, Karndeo Prasad, and also the evidence of Dr. Mithilesh Kumar (PW 8), who conducted post mortem examination on Satiya Devi’s dead body. 10. It is in the evidence of PW 7 (Dr. Sachidanand Prasad (PW 7) and also the examination and treatment of her husband, Sheo Shankar Prasad, and her son, Karndeo Prasad, and also the evidence of Dr. Mithilesh Kumar (PW 8), who conducted post mortem examination on Satiya Devi’s dead body. 10. It is in the evidence of PW 7 (Dr. Sachhidanand Prasad) that, on 04.05.1985, at about 11.45 PM, he had examined, at Mohanpur State Dispensary, Smt. Satiya Devi and found following injuries: “(i) Swelling over top of the head 2” in circumference; (ii) Bruise 2” x 1/2” with swelling at the left side of the neck; (iii) Bruise 2” x ½” at lower portion of back;” 11. It is also in the evidence of PW 7 (Dr. Sachhidanand Prasad) that because of injury No. (i), Satiya Devi was referred to Golpathar Hospital, Gaya, for investigation and further treatment, whereas injury Nos. (ii) and (iii) were simple. 12. In the opinion of the doctor (PW 7), all the injuries, sustained by Satiya Devi, were caused by hard blunt substance, such as, lathi. 13. We may pause here to point out that it is also in the evidence of doctor (PW 7) that he had examined Sheo Shankar Prasad, i.e., husband of the said deceased, on 05.05.1985, at 1.30 AM, and found following injuries: “(i) One lacerated wound 1” x1/6” x muscle deep at left side of the forehead; (ii) Another lacerated wound ½” x 1/6” x muscle deep at left side of forehead; (iii) Swelling 1½” circumference at dorsal surface of right hand.” 14. In the opinion of the doctor (PW 7), all the injuries, sustained by Sheo Shankar Prasad, were simple in nature caused by hard blunt substance, such as, lathi. 15. It is the further evidence of PW 7 that he had examined Karndeo Prasad, too, on 05.05.1985, at 01.45 AM, and found following injuries: “(i) Bruise 1 ½” x ½” at outer surface of left forearm; (ii) Bruise 1” X1/2” at right shoulder; (iii) Bruise 1 ½” x ½” at left side of back; (iv) Bruise 3” x1/2” at outer surface of left ring in the middle.” 16. In the opinion of the doctor (PW 7), all the injuries, sustained by Karndeo Prasad, were simple in nature caused by hard blunt substance, such as, lathi. 17. In the opinion of the doctor (PW 7), all the injuries, sustained by Karndeo Prasad, were simple in nature caused by hard blunt substance, such as, lathi. 17. From the evidence given by PW 7, it becomes clear that Satiya Devi had sustained swelling over top of her head and two bruises, one, on the left side of her neck and the other, at the lower portion of her back; whereas her husband, Sheo Shankar Prasad, had sustained lacerated wounds on left side of his forehead and swelling on the dorsal surface of his right hand and as far as Karndeo Prasad was concerned, he was found to have suffered four bruises, one, on the outer surface of his left forearm; the second, on his right shoulder; the third, on the left side of his back; and the fourth, in the middle of the outer surface of left ring. 18. Turning to the evidence of PW 8 (Dr. Mithilesh Kumar), who had, admittedly, conducted post mortem examination on the said dead body, on 05.05.1985, at 12.30 hours, we notice that according to PW 8, he found following ante mortem injuries on the said dead body: “(i) Swelling over top of the head. Size 2” circumference. On dissection: On the dissection of part underline tissues infiltrated with blood clots. On removal of scull cap, there was presence of extraderal and subderal haematoma over superior part of brain. Brain and ménages were grossly congested. Injury was ante mortem in nature, grievous and dangerous to life. Injury was caused by hard blunt object.” 19. In the opinion of the doctor (PW 8), the ante mortem injuries aforementioned were caused by hard blunt substance, such as, lathi, and the death was result of shock, compression and coma. 20. Neither the findings of the doctor nor his opinion, with regard to cause of death of the said deceased and/or his opinion with regard to the nature of weapon, which might have been used, for causing assault on, and death of, the said deceased, were disputed either by the prosecution or by the defence. This apart, we, too, do not notice anything inherently incorrect or improbable in the evidence given by the doctor (PW 8). From the unshaken evidence of the doctor (PW 8), what clearly transpires is that Satiya Devi had met with homicidal death. 21. This apart, we, too, do not notice anything inherently incorrect or improbable in the evidence given by the doctor (PW 8). From the unshaken evidence of the doctor (PW 8), what clearly transpires is that Satiya Devi had met with homicidal death. 21. The question, which, however, falls for consideration, is: whether the accused-appellant had caused the death of Satiya Devi? 22. Bearing in mind the medical evidence on record, when we examine the remaining evidence on record, we notice that the First Information Report (Exhibit-1) makes no mention of any assault having been suffered by PW 5 (Karndeo Prasad). However, PW 5 claims that he had been assaulted by sipaha, where the evidence of his father, Sheo Shankar Prasad (PW 6), is that his son, Karndeo Prasad (PW 5), was slapped and given fists blows and only one blow was given by means of sipaha. 23. We may pause to point out that a sipaha consists of two pieces of bamboo tied together by means of a piece of rope or iron chain and while making a cart stand, the two pieces of bamboo are opened so as to make the cart rest on the said two pieces of bamboo. 24. What is, now, imperative, to note is that in his evidence, PW 6 has conceded that he understands the difference between a lathi and sipaha. 25. Situated thus, it becomes abundantly clear that a lathi is distinctly different from a sipaha and PW 6 understands the difference between a lathi and a sipaha. 26. It is also clearly discernable from the evidence discussed above that the First Information Report (Exhibit-1) makes no mention of any assault having been suffered by PW 5, Karndeo Prasad, and while the evidence of PW 5 is that he had been assaulted by the accused by means of a sipaha, his father claims that his son, Karndeo Prasad (PW 5) was slapped and given fists blows and only one blow was given by means of sipaha. 27. Keeping in mind what has been indicated above, when we proceed further, what attracts our attention, most prominently, is that PW 2 and PW 3, who are claimed to be the eye-witnesses, have deposed that PW 5, PW 6 and Satiya Devi were all assaulted by lathis. 27. Keeping in mind what has been indicated above, when we proceed further, what attracts our attention, most prominently, is that PW 2 and PW 3, who are claimed to be the eye-witnesses, have deposed that PW 5, PW 6 and Satiya Devi were all assaulted by lathis. The fact that lathi and sipaha are two different instruments, which can be used for the purpose of assault, is not in dispute. There is clear contradiction between the evidence of PW 5 and PW 6, on the one hand ,and PW 2 and PW 3, on the other, as regards the articles, which were used as weapons. This apart, though PW 6, as already indicated above, has claimed that PW 5 was slapped and also given fists blows, neither PW 5 nor PW 2 and/or PW 3 have given any such evidence. 28. What can also not be ignored is that while PWs 2 and 3 claim that PWs 5 and 6 were given one blow each by lathis, the evidence of the doctor (PW 7) shows that PW 5 and PW 6 were found to have suffered more than one injury caused by hard blunt substance, such as, lathi. 29. While considering the ocular evidence on record, it is of paramount importance to note that according to PW 6, Satiya Devi was assaulted indiscriminately by lathi. To the same effect is the evidence of the other witnesses; whereas the findings of the post mortem report reveals only one injury having been sustained by Satiya Devi on her forehead. 30. What crystallizes from the above discussion is that apart from the fact that there were inconsistencies as regard the manner of the occurrence and/or the weapons of assault, the medical evidence do not support the ocular evidence that Satiya Devi was assaulted indiscriminately by lathis. Either the evidence given by the witnesses are exaggerated or it has to be inferred that none of them had actually seen the occurrence. 31. At any rate, when the evidence of PW 2, PW 3, PW 5 and PW 6 suffer from multiple inconsistencies, none of these four witnesses can be treated as a wholly reliable witness and even if their evidence is not rejected outright as evidence of wholly unreliable witnesses, their evidence would fall, at best, in the category of those witnesses, who are neither wholly reliable nor wholly unreliable. 32. 32. It is trite that the witnesses, ordinarily, fall into three distinct categories, namely, (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable nor wholly unreliable. If the witness is wholly reliable, his evidence can be implicitly relied upon and such a witness’s testimony can be made basis for conviction of an accused. Similarly, when a witness is found to be wholly unreliable, no reliance can at all be placed on his evidence and his evidence has to be rejected outright. When, however, a witness is found to be neither wholly reliable, nor wholly unreliable, his evidence cannot be accepted as true unless his evidence is found to have been corroborated by some credible independent evidence, direct or circumstantial. 33. The evidence of PW 2, PW 3, PW 5 and PW 6, which the prosecution has adduced in the present case, cannot be safely relied upon unless the same is found to have been corroborated by some credible independent evidence, direct or circumstantial. 34. It is also an undisputed proposition of law that one infirm witness cannot be treated to have corroborated the evidence of another infirm witness meaning thereby that witnesses of same brand cannot be taken to have corroborated each other. Thus, when a witness is neither wholly reliable nor wholly unreliable, his evidence cannot be taken to have been corroborated by a witness of the same brand, namely, a witness, who is neither wholly reliable nor wholly unreliable, for, evidence is not to be counted, but weighed. It is not the number of the witnesses, which determines the outcome of a trial; rather, it is the inherent falsity or truth of the evidence given by the witness, which decides the outcome of trial. If each one of a large number of witnesses is found to be wholly unreliable, their evidence cannot become acceptable as true merely because a large number of similar brand of witnesses has corroborated each other. 35. A reference, with regard to the above position of law, may be made to the case of Muluwa, S/o Binda and others Vs. If each one of a large number of witnesses is found to be wholly unreliable, their evidence cannot become acceptable as true merely because a large number of similar brand of witnesses has corroborated each other. 35. A reference, with regard to the above position of law, may be made to the case of Muluwa, S/o Binda and others Vs. The State of Madhya Pradesh, [ AIR 1976 SC 989 ], wherein the Supreme Court has observed as follows : “It is elementary that the evidence of an infirm witness does not become reliable merely because it has been corroborated by a number of witnesses of the same brand; for, evidence is to be weighed not counted. Since the evidence of P.Ws. 5 and 6 suffered from the same infirmities as that of Smt. Jugatia, it cannot be said that the trial Judge had no basis, whatsoever, for stigmatising it as unreliable.” 36. Situated thus, it becomes clear that merely because PW 2, PW 3, PW 5 and PW 6 have given evidence to the effect that Satiya Devi had been assaulted by the accused-appellants, their evidence cannot be made basis for holding them truthful witnesses, when each one of them is a witness, who is neither wholly reliable nor wholly unreliable, for, one infirm witness cannot be treated to have corroborated the evidence of another infirm witness. 37. From the evidence on record, it has also transpired that the assault on Satiya Devi took place at the spur of the moment and in the face of the fact that she had not sustained multiple injuries, it is wholly impossible to infer that the assault on her was made with intent to kill her. When no common intention is proved from the evidence on record, there ought to have been clear evidence as to who had given the blow on Satiya Devi’s head, which proved fatal. As the identity of the assailant could not be established by the evidence on record, the accused-appellants, considered from this angle, ought to have been accorded, at least, benefit of doubt. 38. Situated thus, it becomes clear that in the light of the evidence, which had been adduced by the prosecution, the accused-appellants ought to have been acquitted. 39. In the result and for the foregoing reasons, we allow this appeal. 38. Situated thus, it becomes clear that in the light of the evidence, which had been adduced by the prosecution, the accused-appellants ought to have been acquitted. 39. In the result and for the foregoing reasons, we allow this appeal. The impugned conviction of the accused-appellants and the sentence passed against them by the judgment and order, under appeal, are hereby set aside. The accused-appellants are held not guilty of the offence, which they stand convicted of and they are hereby acquitted of the same under benefit of doubt. 40. Since the accused-appellants are on bail, their bail bonds are hereby cancelled and their sureties shall stand discharged. 41. Let the Amicus Curiae be paid a fee of Rs.5,000/-. 42. Registry shall, forthwith, send a copy of this judgment and order to the learned trial Court along with the Lower Court Records.