JUDGMENT : INDIRA BANERJEE, J. 1. This appeal is against a judgment and/or order dated 22nd May, 2003 and sentence dated 23rd May, 2003, passed by the Additional Sessions Judge, Fast Track Court No.1, Purulia, in Sessions Trial No.2/2003 arising out of Sessions Case No.103/2002. 2. By the judgment and/or under appeal the appellants have been convicted under Sections 307/34 and Section 326/34 of the Indian Penal Code. The appellants No.2, 3 and 6 have been sentenced to 10 years rigorous imprisonment for offence under Section 307/34 of the Indian Penal Code and for 7 years for offence under Section 326/34 of the Indian Penal Code. The appellant Nos.1, 4, 5 and 7 have been sentenced to 7 years rigorous imprisonment for offence under Section 307/34 and for 5 years for offence under Section 326/34. 3. It appears that on 6th April, 1998 a First Information Report (FIR) was lodged by the de facto complainant Smt. Mithila Gope, mother of the victim, who alleged that at about 6:30/7:00 p.m. in the evening on 6th April, 1998 Shri Shankar Gope, son of Sri Haru Gope of village Telidih, had come to their house to call her son Shri Gayaram Gope, the victim. She along with the victim and Shri Shankar Gope proceeded towards the house of the Upa-Prodhan along the Kuli road. Smt. Kala Gope, wife of the victim followed the three of them. 4. In the FIR it is alleged that when the victim, Shri Shankar Gope, the complainant and Smt. Kala Gope reached the house situated between the houses of Mantu Gope and Lagan Gope, Shri Rajen Gope, son of Hem Gope, Shri Dandu Gope, son of Sri Rampada Gope, Shri Dhiren Gope, son of Shri Bisheswar Gope, Shri Binod Gope, son of Shri Bisheswar Gope, Shri Debu Gope, son of Shri Hem Gope, Smt. Amoli Gope, daughter of Shri Bisheswar Gopoe, suddenly surrounded them and attacked them. 5. In the FIR it is alleged that the accused Smt. Amoli Gope caught hold of Shri Gayaram Gope from behind and started instigating the others saying “Maro, Maro” (hit !). Shri Dandu Gope assaulted Shri Gayaram Gope on his head with a “Tabla”, Shri Rajen Gope also assaulted on the left shoulder of Shri Gayaram Gope with a “Tabla” and Shri Dhiren Gope assaulted Shri Gayaram Gope with a sword. 6. Shri Dandu Gope assaulted Shri Gayaram Gope on his head with a “Tabla”, Shri Rajen Gope also assaulted on the left shoulder of Shri Gayaram Gope with a “Tabla” and Shri Dhiren Gope assaulted Shri Gayaram Gope with a sword. 6. In the FIR it is alleged that when the complainant tried to protect the victim, they pushed and kicked her for which she fell down on the ground and they fled away “hither and thither”. 7. It is further alleged that Shri Gayaram Gope’s wife, Smt. Kala Gope came running there and picked the victim up. At first they brought the victim to the house of the Prodhan in a cot and thereafter they went to the police station and as advised by the police Gayaram was admitted to Purulia Sadar Hospital. 8. In the FIR it was alleged that Shri Gayaram Gope’s life was in grave danger and there was no hope of his surviving. According to the complainant, the victim’s wife, Shri Haribol Gope, son of Shri Lekhu Gope and many others of the village witnessed the incident. 9. After investigation, charges were framed against the accused appellants. The accused appellants were charged of offence under Sections 323/34 and 326/34 of the Indian Penal Code for causing hurt and grievous hurt to Gayaram Gope. The accused appellants were also charged under Sections 307/34 of the Indian Penal Code on the allegation that in furtherance of common intention, the accused appellants voluntarily caused grievous hurt to Gayaram Gope with intention and/or knowledge that if the act had caused the death of Gayaram Gope, the accused appellants would have been guilty of murder. The charges were read out and explained to the accused persons who pleaded not guilty and claimed to be tried. 10. In course of trial nine prosecution witnesses were examined. The defence did not examine any witness. The accused were, however examined under Section 313 of the Criminal Procedure Code. 11. The 1st Prosecution Witness being the de facto complainant stated that on the day of the incident in the evening the accused appellant No. 1, Shankar Gope came to call her son, Gayaram Gope, the victim to take him to the house of the Upa-Pradhan. She stated that she accompanied Gayaram to the house of the Upa-Pradhan along with Shankar Gope. She stated that she accompanied Gayaram to the house of the Upa-Pradhan along with Shankar Gope. Amoli Gope assaulted Gayaram with a ‘tabla’ (sharp weapon) while the other accused persons surrounded him. Dhiren and Binode also assaulted Gayaram and Rajen caught hold of Gayaram. As a result of the assault, Gayaram sustained injuries. 12. From the trend of the cross-examination, it appears that Amoli Gope was the wife of Gayaram Gope. PW1 deposed that she could not say whether Amoli Gope was the wife of Gayaram Gope. She said that Amoli Gope never lived with Gayaram Gope as his wife. She said that her son never had any quarrel with Ananda. She could not say whether there was a criminal case filed against Gayaram Gope by Amoli Gope. Later, when cross-examined on behalf of Shankar Gope, she denied that Amoli was Gayaram’s wife. 13. The 2nd Prosecution Witness, Smt. Kala Gope stated that Gayaram was her husband. She stated that Shankar had come to their house to call her husband. Shankar asked her husband to accompany him to the house of the Pradhan. She said that she, her mother-in-law and her husband accompanied Shankar. In front of the house of Amoli, there is a banyan tree. Amoli caught hold of Gayaram, Dandu Gope assaulted her husband on his head with a ‘farsa’. Rajen assaulted her husband on his left shoulder with a ‘farsa’, Dhiren assaulted him with a sword on his waist, Binode assaulted Gayaram with ‘lathi’, Debu assaulted her husband with ‘lathi’. The accused persons threatened to strangulate her if she raised cries. 14. This witness said that her husband fell on the ground due to the assault. He had to be admitted at Ranchi Hospital. He was in hospital for about a month. 15. In cross-examination, this witness said that she was seven years old when she got married. She first said that she did not know whether Amoli was the wife of Gayaram, but later she admitted that Amoli was Gayaram’s wife. She further said that there had been no legal separation between Amoli and Gayaram in Court, but there had been separation between them after village ‘salish’. She admitted that Amoli had filed a case against her husband for maintenance. 16. This witness said that blows were struck on the head of Gayaram. She further said that there had been no legal separation between Amoli and Gayaram in Court, but there had been separation between them after village ‘salish’. She admitted that Amoli had filed a case against her husband for maintenance. 16. This witness said that blows were struck on the head of Gayaram. One blow was struck on the front part of the head and one on the back of the head. Rajen assaulted him with a ‘farsa’. She also stated that her husband was conscious when he was brought home. She said that her mother-in-law had become unconscious at the place of occurrence after seeing the incident. She said that she raised cries of ‘bachao bachao’, hearing which the villagers came. Many people came, namely, Haribol, Maheswar, Majhi, Lalu etc. 17. She said that her husband fell down on the ground and she alone caught hold of him and brought him home. The accused fled away from the place of occurrence. This witness said that about 20/25 persons went to the Police Station. All those persons were from the village. They went to the house of the Pradhan after the incident. She and her husband went to the house of the Pradhan. They were in his house for half an hour. She said that she had mentioned the names of the assailants to the Pradhan. This witness said that she, her mother-in-law, her husband and her children were present in the house when Shankar came. 18. The 3rd Prosecution Witness is Gayaram Gope, the victim himself. He said that the incident had taken place five years ago at 6.30 p.m. He said that Shankar came to call him. He asked him to accompany him to the house of the Upa-Pradhan for the purpose of compromising his case with Amoli. He said that he, his mother and his wife, Kala Gope went with Shankar Gope to the house of Upa-Pradhan. Amoli caught hold of him near a banyan tree in front of her house. Shankar cried ‘maro’. All the other accused persons gheraoed him and Dandu struck him with ‘farsa’ twice. ‘Farsa’ and ‘tabla’ seem to be the same. Shankar shouted ‘maro salake’. She said that Rajen assaulted him on his head and he tried to save himself as a result of which he sustained injury on his left shoulder. He also stated that Rajen assaulted him on the back. ‘Farsa’ and ‘tabla’ seem to be the same. Shankar shouted ‘maro salake’. She said that Rajen assaulted him on his head and he tried to save himself as a result of which he sustained injury on his left shoulder. He also stated that Rajen assaulted him on the back. Dhiren assaulted him with sword, Binode assaulted him with ‘lathi’, Debu Gope caught hold of his wife and shouted ‘maro salake’. In consequence of the assault, he fell on the ground. Many people had taken him to the Police Station. He was taken to Purulia Sadar Hospital from where he was shifted to an upgraded Medical Centre for treatment. He was treated for seven months at Ranchi Medical College Hospital. He said that he was not able to do his work normally. He was not able to sleep. In cross-examination, he said that Amoli Gope had filed a maintenance case against him. His wife, Kala Gope and others had deposed on his behalf in the said case and order of maintenance had been passed in favour of Amoli. As per the order of the Magistrate, he had been paying maintenance allowance for a few months and execution case has also been filed by Amoli for realization of the arrear maintenance allowance. He said that on the date of the incident i.e. 6th April, 1998, he and Amoli had gone to Court in connection with a criminal case filed by Amoli against him for allegedly assaulting her. In cross-examination, he stated that Dandu assaulted him on his head, Amoli came out of her house and caught hold of him. At that time, his mother and wife were near him at a distance of about 10 cubits. Dandu assaulted him only with ‘farsa’ and no other weapon. He denied that Dandu assaulted him with sword. He said that ‘farsa’ and ‘tabla’ are one and the same. In cross-examination, this witness said that Amoli did not assault him with ‘tabla’ or ‘farsa’. She struck two blows on his head. 19. The 4th Prosecution Witness is the signatory to the seizure list under which wearing apparel of Gayaram had been handed over to the Police Station. 20. The 5th Prosecution Witness, Dr. Ashis Ghosh deposed that Gayaram had been admitted under him at Purulia Sadar Hospital. She struck two blows on his head. 19. The 4th Prosecution Witness is the signatory to the seizure list under which wearing apparel of Gayaram had been handed over to the Police Station. 20. The 5th Prosecution Witness, Dr. Ashis Ghosh deposed that Gayaram had been admitted under him at Purulia Sadar Hospital. He said that the patient had the following injuries : (1) A semi-circular injury at left parietal region cutting the scalp/ both tables of vault exposing the brain meninges of left parietal region. (2) A muscle deep injury at left subcostel region at back injuring the 11th rib at back about 6’’ long. (3) A muscle deep injury at left shoulder girdle injuring the suprascapular and infrascapular muscles about 10’’ long. 21. This witness deposed that the patient was fully drunk. Smell of alcohol was coming. He referred the patient to an upgraded Medical Centre on the same day. He identified the injury report. He opined that the injuries as found are likely to be caused by sharp cutting weapons such as ‘tabla’, ‘farsa’ and sword. In his cross-examination, he stated that he had not mentioned the history of the assault. In his injury report, as the patient had not told him about the history of assault. He also stated that he did not find any injury on the occipital region of the head or on the vertex. He did not find more than one injury on the head. He only found injury on the parietal region of the head (left side). He also stated that a person cannot walk 3/4 kms after sustaining such type of injuries. He however said that a person may live for 2 to 4 hours without medical aid after sustaining such kind of injuries. In cross-examination, this doctor said that a person standing on the right side cannot cause such injuries on the left side of a victim, if the victim is standing still. He stated that ‘tabla’, ‘farsa’ and sword were sharp cutting weapons having different shapes. The injuries as found on the person of the victim, might have been inflicted from the back of the victim. The first injury as mentioned in Exhibit 2 might have been caused due to assault by ‘farsa’. No dimensions had been mentioned regarding the first injury. He stated that ‘tabla’, ‘farsa’ and sword were sharp cutting weapons having different shapes. The injuries as found on the person of the victim, might have been inflicted from the back of the victim. The first injury as mentioned in Exhibit 2 might have been caused due to assault by ‘farsa’. No dimensions had been mentioned regarding the first injury. He stated that the shape of the injuries might differ with the nature of weapons used and the intensity of the force applied by the weapons. 22. The 6th Prosecution Witness, Jitendranath Mukherjee, who was the Officer-in-Charge, Purulia (M) Police Station on the day of the incident deposed that he had received a written complaint from Smt. Mithila Gope and had on receipt of the complaint started Purulia (M) Police Station Case No. 38 dated 7th April, 1998 under Section 324, 326, 307 of the Indian Penal Code. He deposed that in the FIR, there was no allegation that Amoli Gope had assaulted Gayaram with a ‘tabla’. 23. The 7th Prosecution Witness, Dr. Chandra Bhusan Sahay, Lecturer, Department of Neurology Surgical Rajendra Institution of Medical Sciences, Ranchi deposed that on 13th May, 1998 he had been posted as Resident Surgical Officer, Department of Neurology Surgical Rajendra Medical College Hospital, Ranchi. On that day, he had examined one Gayaram Gope, 40 years. He had been admitted in Bed No. 12, Department of Neurology Surgical R.M.C.H. Ranchi for the management of head injury. He was discharged on 29th April, 1998. The patient had been referred from Sadar Hospital, Purulia. He told that the following injuries were found on his body : (1) 7” long stitched wound on left parietal region in anterior posterior direction. Shape of stitched wound was like digit 7. (2) 8’’ long stitched wound on left deltoid and scapular region. (3) 7’’ long stitched wound on right side of back in lower part of chest. X-ray of skull AP and lateral done at R.M.C.H., Ranchi showed cut and elevated fracture of left parietal bone. 24. He stated that operation was done on 11th April, 1998 under general anaesthesia and multiple fractured bone pieces had been removed. The age of the injury was 48 hours. Opinion with regard to the nature of wound had to be taken from Sadar Hospital, Purulia where the stitching had been done. Nature of the injury however was found grievous. 24. He stated that operation was done on 11th April, 1998 under general anaesthesia and multiple fractured bone pieces had been removed. The age of the injury was 48 hours. Opinion with regard to the nature of wound had to be taken from Sadar Hospital, Purulia where the stitching had been done. Nature of the injury however was found grievous. This doctor also stated that he had not found any injury in the occipital region of the patient. The injury was found specifically on the left parietal region which is part of the vertex. In medical terminology, parietal, occipital and frontal are now used. 25. The 8th Prosecution Witness is a Lawyer’s Clerk at Purulia Court who has scribed the complaint in writing dated 6th April, 1998 as per instruction of Mithila Gope after which she put her left thumb impression on it. 26. The 9th Prosecution Witness, is the Investigating Officer, Sub-Inspector Bikash Chandra Kundu. From the cross-examination of this witness, it transpires that even though the incident took place on 6th April, 1998, FIR was put up before the learned Sub-divisional Judicial Magistrate on 12th April, 1998. There is no explanation for the delay. 27. He also stated that he did not send blood stained apparel to the forensic laboratory for examination to ascertain whether the blood stain were of human blood. In cross-examination he admitted that he had not examined Mithila Gope. Mithila Gope had not stated in the FIR that Amoli Gope had assaulted Gayaram with ‘tabla’. The accused appellants were examined under Section 313. They denied the allegations against them and pleaded they were innocent. 28. There were no independent witnesses who deposed that they had seen the accused appellants or any of them assault Gayaram. The witnesses who claimed to be eyewitnesses, that is the Prosecution Witness No.1, Mithila Gope who is the mother of the victim Gayaram, and the Prosecution Witness No.2, Smt. Kala Gope, who claims to be the wife of the victim Gayaram. The victim Gayaram and his mother have also referred to the Prosecution Witness No.2, Kala Gope as Gayaram’s wife. However, it is doubtful whether there could be any valid marriage between Gayaram and Prosecution Witness No.2, since it has transpired from the evidence of Prosecution Witness No.2, Kala Gope that Gayaram’s first wife was alive. The victim Gayaram and his mother have also referred to the Prosecution Witness No.2, Kala Gope as Gayaram’s wife. However, it is doubtful whether there could be any valid marriage between Gayaram and Prosecution Witness No.2, since it has transpired from the evidence of Prosecution Witness No.2, Kala Gope that Gayaram’s first wife was alive. Gayaram’s marriage with his first wife had not been dissolved by any order of Court. This is also evident from the examination of Gayaram (PW 3). 29. The 4th Prosecution Witness, Majhi Gope, a resident of the village, was only a seizure witness. He did not say anything about the incident. 30. In her complaint to the Police Station purportedly lodged on 4th April, 1998, Mithila (PW 1) stated that Sri Shankar Gope, son of Sri Haru Gope of village Telidhi, came to their house and called her son Gayaram. She stated that she along with Gayaram and Sri Shankar Gope proceeded towards the house of Upa Prodhan along with the Kuli road and Kala Gope wife of Gayaram followed them. She stated that in between the house of Mantu Gope and Lagan Gope, Shri Rajen Gope, son of Hem Gope, Sri Dandu Gope, son of Sri Rampada Gope, Sri Dhiren Gope, son of Sri Bisheswar Gope, Sri Binod Gope, son of Sri Bisheswar Gope, Sri Debu Gope, son of Sri Hem Gope, Smt. Amoli Gope, daughter of Sri Bisheswar Gope, suddenly surrounded and attacked them. 31. Amoli Gope, Dhiren Gope and Binod Gope are the daughter and two sons of Sri Bisheswar Gope. Sri Rajen Gope and Shri Debu Gope are sons of Sri Hem Gope and are brothers. 32. In her complaint Mithila stated that Amoli caught hold of Gayaram from behind and started to instigate the others saying ‘maro maro’. Dandu assaulted Gayaram on his head with a ‘tabla’, Rajen assaulted Gayaram on his left shoulder with a ‘tabla’ and Dhiren assaulted Gayaram on his waist with a sword. The others started assaulting him. She stated that she went to protect Gayaram but the accused persons kicked and pushed her and she fell on ground. After which they fled away. She stated that Gayaram’s wife came and picked her up. 33. In a complaint in writing she stated that they had taken Gayaram to the house of the Prodhan in a cot. She stated that she went to protect Gayaram but the accused persons kicked and pushed her and she fell on ground. After which they fled away. She stated that Gayaram’s wife came and picked her up. 33. In a complaint in writing she stated that they had taken Gayaram to the house of the Prodhan in a cot. Thereafter, they went to the police station and as per instruction of the police Gayaram was admitted to Purulia Sadar Hospital. She stated that Gayaram’s wife, Haribol Gope and others witnessed the occurrence. What was very conveniently suppressed in the FIR was the relationship between her and Amoli. Amoli was her estranged daughter-in-law, locked in litigation with her son, and may be, the members of his family. There were proceedings under Section 498A of the Indian Penal Code initiated by Amoli. Amoli had claimed maintenance, from her husband. There was an order in favour of Amoli for maintenance from Gayaram under Section 125 of the Criminal Procedure Code. 34. In her evidence Mithila stated that Amoli assaulted Gayaram with a ‘tabla’. However, in her complaint in the police station she stated that Amoli caught hold of Gayaram from behind and started instigating others saying ‘maro maro’. Dandu assaulted Gayaram on his head with a table. In her cross-examination she stated that she did not go to the police station to submit the written complaint and she did not know who had taken Gayaram to the police station. She stated that Gayaram had become senseless because of the assault. But she could not recollect whether she was mentally perturbed by the incident. In Court this witness stated that she could not hear properly and the Court found the witness to be short of hearing. 35. She stated that she had told the Police Officer that Amoli had assaulted her son Gayaram with a ‘tabla’. Amoli first struck Gayaram on his head and thereafter Dhiren and Binod struck him. The victim Gayaram has stated that Amoli gave him two blows. He said that Amoli did not hit him with ‘tabla’. In the complaint she had stated that Dandu had assaulted Gayaram on his head with ‘tabla’, Rajen had assaulted Gayaram also with a ‘tabla’, Dhiren had assaulted Gayaram with a sword. In evidence there was an attempt to implicate Amoli and her brother Binod in the actual acts of assault. He said that Amoli did not hit him with ‘tabla’. In the complaint she had stated that Dandu had assaulted Gayaram on his head with ‘tabla’, Rajen had assaulted Gayaram also with a ‘tabla’, Dhiren had assaulted Gayaram with a sword. In evidence there was an attempt to implicate Amoli and her brother Binod in the actual acts of assault. In the complaint it is stated that Amoli caught hold of Gayaram and instigated the others saying ‘maro maro’, no specific act has been attributed to Binod. 36. In cross-examination she stated that she could not say whether Amoli was Gayaram wife. She stated that Amoli never lived with Gayaram as his wife. She could not say whether there was any criminal case filed by Amoli against Gayaram. She asserted that her evidence that Amoli had assaulted her son was true. 37. The 2nd Prosecution Witness, Kala Gope, second wife of Gayaram deposed that Amoli caught hold of Gayaram in front of a banian tree in front of Amoli’s house. Dandu had assaulted her husband on his head with ‘farsa’ and Rajen had assaulted her husband on his left shoulder. She stated that Dhiren had assaulted him on his waist with a sword. The doctors did not find any sword injury on the waste. 38. This witness further stated that Binod assaulted Gayaram with a ‘lathi’. This witness also stated that the accused persons had threatened to strangle her if she raised cries. This is not corroborated by Mithila. On the other hand Mithila stated that the accused persons had run away. This witness said that she was seven years old when she got married. She stated that she did not know whether Amoli was Gayaram’s wife. Later she stated that Amoli was Gayaram’s wife. There had been no legal separation between Amoli and Gayaram in Court but they had been living in separation after a village ‘salish’. She stated that it was a fact that Amoli had initiated maintenance proceedings against Gayaram. 39. In her evidence, the PW 2, Kala Gope stated that her husband had been conscious when he was brought home. She stated that her mother-in-law become unconscious after seeing the incident. She stated that she had raised cries of ‘Bachao Bachao’, hearing which villagers had come. Many people came namely Haribol, Maheswar, Majhi, Lalu. None of these persons have, however, been examined in evidence. She stated that her mother-in-law become unconscious after seeing the incident. She stated that she had raised cries of ‘Bachao Bachao’, hearing which villagers had come. Many people came namely Haribol, Maheswar, Majhi, Lalu. None of these persons have, however, been examined in evidence. This witness stated that her husband had fallen on the ground. She alone caught her husband and brought him home. The accused persons fled away. She also stated that about 20/25 persons had gone to the police station. Majhi, Lalu were present when she brought her husband home. Significantly, none of the 25 persons who allegedly went to the police station have been examined. 40. Gayaram also deposed that Sankar Gope asked him to go to the house of Upo-pradhan for the purpose of compromising his case with Amoli. He stated that he, his mother and his wife Kala Gope went with Sankar Gope to the house of Upo-pradhan. Amoli caught hold of him in front of a banyan tree, Sankar Gope cried ‘maro’. All other accused persons gheraod him and Dandu struck him with ‘farsa’, Sankar shouted ‘maro salake’, Rajen assaulted him on his head. Gayaram stated that he tried to save himself and in the process he sustained injury on his left shoulder. Dhiren assaulted him with a sword. Debu caught hold of his wife and shouted ‘maro salake’. Significantly, neither of the other witnesses said anything about any one assaulting Gayaram’s wife. He said that as a result of the assault he fell on the ground. Many people took him to the police hospital and later he was taken to Purulia Sadar Hospital. From Purulia Sadar Hospital he was taken to Ranchi Medical College and Hospital for better treatment. 41. In cross-examination Gayaram stated Amoli had filed a maintenance case against him in which his wife Kala and others had deposed on his behalf. However, an order of maintenance was passed in Amoli’s favour. Amoli was held to be Gayaram’s first wife. Gayaram stated that as per the order of the maintenance he had paid maintenance to Amoli for a few months. Amoli had filed an execution case for realization of arrears of maintenance. 42. However, an order of maintenance was passed in Amoli’s favour. Amoli was held to be Gayaram’s first wife. Gayaram stated that as per the order of the maintenance he had paid maintenance to Amoli for a few months. Amoli had filed an execution case for realization of arrears of maintenance. 42. Gayaram stated that on the date of the incident, that is 6th April, 1998 he and Amoli had both gone to the Court in connection with a criminal case filed by Amoli against him alleging that he had assaulted her. Gayaram stated that Dandu assaulted him with ‘farsa’ twice in different part of his head. Amoli came out of the house and caught hold of him. Gayaram deposed that there were passersby at the time of the incident. However, no passer-by was examined. 43. Gayaram said that he had been unconscious due to the assault. He, therefore, did not know who had come to the place of occurrence. After the incident he stated that his wife and his mother took him home immediately. If he were unconscious he could not have known who took him home. It is also difficult to believe that two women would be able to take an unconscious man in his 40s back home. His so called wife Kala stated in evidence that her mother in law had become unconscious. She said she had taken her husband home; she took him home walking. Gayaram said that he regained his senses only in Ranchi. Again he had stated that he was taken to the house of the Prodhan after the assault. This is also corroborated by his mother. However, as earlier observed the Prodhan was not examined. 44. It seems rather incredible that a man who had fallen unconscious should be taken to the Prodhan’s house instead of being taken to the hospital, and then taken home. There are discrepancies as to who took him home. He stated that it was his mother and his wife who took him home. It is later stated that villagers took him to the house of the Prodhan. This deponent deposed that he had been interrogated by the Investigating Officer. He stated that he was in Ranchi for one month. The Investigating Officer did not come to see him after his return from Ranchi. He did not see the Investigating Officer in their village. It is later stated that villagers took him to the house of the Prodhan. This deponent deposed that he had been interrogated by the Investigating Officer. He stated that he was in Ranchi for one month. The Investigating Officer did not come to see him after his return from Ranchi. He did not see the Investigating Officer in their village. He did not make any statement to the Investigating Officer after his return from Ranchi. He stated that he was interrogated in the police station by the Investigating Officer on return from Ranchi. He had himself gone to the police station to see the Investigating Officer. He did not tell the Investigating Officer that he was in Ranchi Hospital from 3rd April, to 29th April, 1998. 45. From the cross-examination, of this witness it emerges that Shankar Gope was his bhaira bhai, that is, wife’s sister’s husband. He said Amoli is his second wife. 46. In his cross-examination, he also stated that Jogeswar, Haripada and Bisheswar that is father of Amoli, Dhiren and Binod, are three brothers. Aghari, Dhiren and Binode are Amoli’s three brothers. Two criminal cases have been filed by Amoli against Gayaram under Section 498A of the Criminal Procedure Code. 47. Considering the inconsistencies in the evidence of the three eyewitnesses referred to above, and considering the evidence of the doctor of Purulia hospital that Gayaram was totally drunk and smelling of alcohol, the conviction of the accused appellants on the basis of the evidence of the Prosecution Witnesses cannot be sustained. Gayaram had in his evidence stated that he fell down when he tried to save himself from assault. The possibility of the serious injuries being the result of a fall cannot be ruled out. 48. It is well-settled that suspicion, however, strong cannot substitute proof. It is difficult to believe the witnesses having regard to the discrepancies in their evidence. The accused appellants have to be given the benefit of the doubt. 49. The appeal is allowed and the conviction and sentence are set aside. The accused appellants may be set free. 50. The bail bonds be discharged. 51. Photostat certified copy of this judgment, if applied for, be supplied to the parties expeditiously, subject to compliance with the requisite formalities.