JUDGMENT AND ORDER : L.S. Jamir, J. This appeal is directed against the judgment dated 10-04-2014 passed by the learned Additional Sessions Judge, Dhubri in Sessions Case No. 59/2001 by which the appellants, namely, Moinul Hoque and Sayedur Rahman were convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 5,000/- each and in default to suffer simple imprisonment for another six months for the offence under Sections 302/34 IPC. 2. An Ejahar dated 10-03-1999 was lodged by PW 2, namely, Nurzzaman Rahman before the Officer-in-Charge, Gauripur Police Station stating that at about 6:30 p.m on 09-03-1999, his brother Md. Mehbubur Rahman son of Majibur Rahman had gone to Chaurangimur to buy provisions. All of a sudden, the accused persons, six in number in furtherance of their common intention, hit him on the head and other parts of the body with iron rods which they had brought concealed in their possessions causing grievous injuries and fled away. His brother was immediately taken to Dhubri Civil Hospital for treatment but the doctor declared him dead. At the time of incident, Abul Hussian (PW 6) tried to save his brother but the accused persons also assaulted him causing grievous injuries. 3. On the basis of the Ejahar, Gauripur Police Station Case No. 29/1999 under Sections 147/148/149/325/302 was registered and investigation started. 4. After completion of investigation, charge-sheet was submitted against the accused persons and as the case was exclusively triable by the Court of Sessions, the Judicial Magistrate First Class Dhubri committed the same to the Court of Sessions for trial by order dated 25-06-2001. During the course of the trial, the prosecution examined 13 witnesses and the accused persons were also examined under Section 313 Cr.PC. 5. For proper appreciation of the case in hand, the evidence of the prosecution witnesses are examined as under :- (a) PW 1 was declared as a hostile witness. (b) PW 2 is the complainant as well as the brother of the deceased. In his examination in chief, he stated that he come to know of the incident at 7:30 p.m on 09-03-1999. He had gone from Dhubri to Gauripur Block Congress Office and while in the office, he come to know that a fight had taken place at Gauripur Chowrangimur and in the fight his younger brother Mahababur Rahman @ Jhunu was also involved. He had gone from Dhubri to Gauripur Block Congress Office and while in the office, he come to know that a fight had taken place at Gauripur Chowrangimur and in the fight his younger brother Mahababur Rahman @ Jhunu was also involved. He rushed to the place where he come to know that Saidul, Moinul and others had beaten up his brother and on coming to learn that his brother had been taken to Dhubri Hospital, he went there. On arrival at the Civil Hospital, he come to know that his brother had already passed away. He saw injuries in the front and rear of his head. In the hospital, he met a co-villager, namely, Abdul Hussian who told him that Mahabub and his brother were talking in front of Mandal's Pan Shop at Gauripur Chaurangi and about that time Saidul and Moinul had come there and discussed something with Mahbub. This led to some altercation and his brother had pushed the two of them away and immediately the two of them had taken out rods and hit his brother on the head. A few more persons arrived there and beat up Mahbubur. He identified the Ejahar lodged by him as Exhibit 1 and his signature on the Ejahar as Exhibit 1 (1). In cross-examination, he stated that there is a police point at Chowrangimur which is a market area. The place of occurrence was in west point where Dhubri-Bansbari Road merge with the NH-37. There is a rickshaw stand in the west of the Dhubri-Bansbari Road and the incident took place a couple of cubits west from the rickshaw stand. It was Mahizur Ali who had first informed him in the Congress Office about the incident involving his brother Mahabub. He also stated that the accused Habibur is my "Peha" and the rest of the youths are his co-villagers. He admitted that he did not tell the police of seeing injuries in the front and rear of Junu's head. (c) PW 3 was also declared hostile by the prosecution. (d) PW 4 is the Medical Officer who had examined Md. Abdul Hussian at Gauripur C.H.C on 10-03-1999. He found one tender swelling over the right side of the face just lateral to the right eye, size, shape not well demarcated. According to the Medical Officer, the injuries were simple, fresh being caused by blunt weapon. (d) PW 4 is the Medical Officer who had examined Md. Abdul Hussian at Gauripur C.H.C on 10-03-1999. He found one tender swelling over the right side of the face just lateral to the right eye, size, shape not well demarcated. According to the Medical Officer, the injuries were simple, fresh being caused by blunt weapon. In his opinion, the injuries might have been caused by the impact of elbow, hand fight etc. (e) PW 5 is the owner of a Pan Shop. In his evidence, he stated that he knew Mahbubur Rahman and the incident took place at around 6:30 p.m about 3½ years ago. He was in his pan shop at the road side at Chowrangimur in Ward No. 4 of Gauripur. Hussian and Jhunu were talking in front of his shop and at that time Saidul and Moinul arrived near them and then the four of them talked. He did not hear what they were talking about but he saw Jhunu pushing Mainul and Saidul with his hands. He saw Mainul taking out a rod from his backside from under his shirt and saw him hitting Jhunu with the rod on his shoulder. Out of fear, he closed his shop and remained inside. He come out of the shop around one hour later and heard that Jhunu had died at hospital. According to him, the rod measured about two cubits long and two finger spans wide. In cross-examination, he stated that he was running his shop from that place for the last five years and in front of his shop there is a rickshaw stand. NH-37 runs from the left side of his shop and on the south is the D.K. Road. There were no customers present in his shop when the incident took place. He stated that after the assault, more people started to come and he downed the shutter of his shop. (f) PW 6 is Abdul Hussain who was also alleged to have been assaulted by the accused persons. In his statement, he stated that the incident took place around 6:30 p.m on 19-03-1999. He was standing in front of Mandal's Pan Shop under a banyan tree at Gauripur Chowrangimur. A little later, Jhunu arrived and the two of them were talking for about four to five minutes. At that time, Mainul and Saidul come and stood in front of Jhunu. He was standing in front of Mandal's Pan Shop under a banyan tree at Gauripur Chowrangimur. A little later, Jhunu arrived and the two of them were talking for about four to five minutes. At that time, Mainul and Saidul come and stood in front of Jhunu. Saidul told Jhunu, "Now, where will you go?" Instantly, Jhunu pushed Mainul and Saidul with his hand. He saw Mainul taking out a 2½ feet long and a finger wide rod from under the backside of his shirt and hit Jhunu in the head covering his forehead and nose. Saidul also hit Jhunu in the backside with another rod. He then attempted to save him when the accused Moktar come there and punched him on the right cheek just below the eye. He went a little away towards the back side and reached the homeo shop of Sankar and from there he saw a traffic policeman lathi charging. Instantly, the three accused persons left while Jhunu kept on lying there. He along with one Shahid Master and a boy called Peer Box took Jhunu on a rickshaw to the nearby Maa Medical Store. They got hold of a mini bus and took Jhunu to the Dhubri Civil Hospital. His injury was also examined the next morning. In cross-examination, he stated that he does not remember whether he told the police that apart from Mainul and Saidul who had assaulted Jhunu. He also stated that he cannot say as to whether Jhunu was conscious and that he did not speak any word. (g) PW 7 was in-charge of controlling traffic at Chowrangimur traffic point under Gouripur P.S from 5:00 a.m to 8:00 p.m on the day of incident. He stated that he saw gathering and subsequent running away of people at the backside of the rickshaw stand. One havildar Umakanta Roy who was with him went ahead and on his return, he told that a youth named Jhunu had been lying on his face on the ground. (h) PW 8 is a reported witness who after hearing the murder of Jhunu come to Gauripur Chowranginur and saw the police dispersing people by lathi charge. (i) PW 9 stated that at the time of incident he was playing carom in the Club when he heard Abul, Peer Box, Sahid and some other shouting at him. (h) PW 8 is a reported witness who after hearing the murder of Jhunu come to Gauripur Chowranginur and saw the police dispersing people by lathi charge. (i) PW 9 stated that at the time of incident he was playing carom in the Club when he heard Abul, Peer Box, Sahid and some other shouting at him. He left the game and ran and found Abul, Peer Box, Shahid and others taking Mahabubur down from a rickshaw in front of his Pharmacy. He was told by Abul and Peer Box that Mainul, Saidur, Moktar and Rezzaque had assaulted Jhunu. (j) PW 10 was the Bench Assistant in the Court of the Magistrate, Dhubri when the statements under Section 164 Cr.PC of the witnesses Peer Box and Mandal Sheikh were recorded. (k) PW 11 was working as Head Constable at Gauripur Police Station on the date of incident. While he was on duty he heard commotion and he went to the National Highway and found the man lying down with injuries. He saw blood in the shoulder of the said person and recognised the injured as Jhunu who was not in a position to speak. He sent the injured to hospital in a mini bus. (l) PW 12 is the Medical Officer who performed the post mortem examination on the dead body of Mehbubar Rahman and found the following injuries :- "Rigormortis was present. Eyes closed. Mouth half opened, nail bed-pale. Blood clot present in back nostrils. Injuries are- (1) One haematoma 7 cm x 6 cm present over occipital area of scalp-on dissection blood clot found along with depressed fracture of occipital bone. On opening the cranial cavity, large blood clots and intra-cranial hemorrhage are found. (2) One cut injury ½ cum x ½ cm over left elbow (3) One cut injury 4 cm x 1 cm over temporal region of scalp; (4) One cut injury 3 cm x ½ cm over temporal region of scalp adjacent to injury No.3; (5) One abrasion 2 cm x 1½ cm over forehead; (6) One abrasion 2 cm x 1½ cm over bridge of the nose; (7) One abrasion 2 cm x 1 cm over molar region; (8) One abrasion 3 cm x 1 cm over left flanks. Opinion :- In my opinion the cause of death was due to coma, shock and haemorrhage following injuries over head sustained by the deceased Ext.7 in the Post-mortem Report and ext.7 (1) is my signature. After Post-mortem the dead body was handed over to police." (m) PW 13 is the Investigating Officer who was posted at Gauripur Police Station as T.S.I on 10-03-1999. He stated that during investigation, he visited the place of occurrence and also examined the witnesses under Section 161 Cr.P.C. He also sent three witnesses, namely, Abul Hussian, Mondal Sk and Peer Box for recording statements under Section 164 Cr.P.C. After completion of investigation, he submitted the charge-sheet and identified Exhibit 9 as the Charge-Sheet and Exhibit 9 (1) as his signature. 6. The accused persons were also examined under Section 313 Cr.P.C wherein they took the plea of denial and declined to adduce their defence witnesses. 7. Heard Mr. K. Sarma, learned counsel for the appellants. Also heard Mr. K.A. Mazumdar, learned Additional Public Prosecutor, Assam. 8. Mr. K. Sarma, learned counsel for the appellants submits that the case of the prosecution is based solely on the evidence of PW 5 and PW 6. He submits that the evidence of PW 5 would clearly indicate that Mainul taking out a rod and hitting the deceased with the rod in his shoulder. Thereafter, he closed down his shop and come out of the shop only after an hour when he come to learn that the injured had died. Further, the evidence of PW 6 also indicate that the injury was caused on the deceased with a rod by Mainul in the head covering his forehead and nose and Saidul hit in the backside with another rod. Considering the post mortem report, he submits that the same would indicate that there were cut injuries on the left elbow and over the temporal region of the scalp. Such cut injury could not have been inflicted by a rod and therefore the ocular evidence and the medical evidence are contradictory. He also submits that the injury caused by rod could be lacerated injury but could not have amounted to cut injury as described in the post mortem report. Learned counsel for the appellants also submits that head injury on the deceased is alleged to have been made by the accused Moktar, who had died before framing of charge. He also submits that the injury caused by rod could be lacerated injury but could not have amounted to cut injury as described in the post mortem report. Learned counsel for the appellants also submits that head injury on the deceased is alleged to have been made by the accused Moktar, who had died before framing of charge. Therefore, when the presence of the accused cannot be denied, it cannot also be said that the death of the deceased was due to injury inflicted upon by the accused. The prosecution is expected to prove their case beyond any reasonable doubt against the accused in order to convict and sentence them under Section 302 IPC. He, therefore, submits that suspicion however strong may be, cannot take the place of proof and therefore the impugned judgment should be interfered with. 9. Mr. K.A. Mazumdar, learned Additional Public Prosecutor, Assam, on the other hand submits that the evidence of PWs 5 and 6 would clearly go to show that it was the accused persons who hit the deceased with the rod causing his death. Further, he submits that the evidence of PW 9 would clearly indicate that it was the accused who had hit the deceased causing his dead and therefore submits that there is no infirmity in judgment and the appeal should be dismissed. 10. We have heard the submissions forwarded by the learned counsel for the parties. 11. A consideration of the prosecution evidence would indicate that the prime witnesses in the present case in hand are PWs 5 and 6. The evidence of PWs 5 and 6 does not indicate of any sharp weapons having been used by the accused. In fact they have been categorical in giving their evidence that the accused had hit the deceased by a rod. PW 5 in his evidence was categorical that he saw Mainul taking out a rod from his backside from under his shirt and hit the deceased with that rod once on his shoulder. PW 6 also testified that he saw Mainul taking out a 2 ½ feet long and a finger wide rod from under the backside of his shirt and hit the deceased in the head covering his forehead and nose. PW 6 further in his evidence has stated that Saidul also hit the deceased in the backside with another rod. 12. PW 6 also testified that he saw Mainul taking out a 2 ½ feet long and a finger wide rod from under the backside of his shirt and hit the deceased in the head covering his forehead and nose. PW 6 further in his evidence has stated that Saidul also hit the deceased in the backside with another rod. 12. The post mortem report has been considered by us. We are of the considered opinion that the ocular evidence of PWs 5 and 6 does not support the post mortem report. A bare perusal of the medical evidence as already quoted above and the testimony of the PWs 5 and 6 creates doubt in our mind as to whether hitting the deceased with the rod on the shoulder and the head covering the forehead and nose would have caused the cut injuries leading to the dead of the deceased. 13. We have also considered the statements made by the witnesses more particularly PWs 5 and 6 under Section 164 Cr.P.C. There is no indication of the accused using any sharp weapon to have caused the cut injuries on the body of the deceased. Therefore, we are of the considered opinion that the evidence of PWs 5 and 6 fails to inspire confidence thereby allowing the prosecution to build up a case beyond reasonable doubt leading to the conviction and sentencing of the accused persons under Section 302 IPC. That being so and keeping in mind the medical evidence, in our considered opinion, the testimony of PWs 5 and 6 cannot be accepted to be reliable and convincing. 14. Taking into consideration the above discussions, we are of the firm opinion that the evidence so adduced by the prosecution is not sufficiently convincing, cogent and reliable to substantiate the charges framed and the accused appellants ought to be accorded at least the benefit of doubt. 15. In the result, this appeal succeeds. The impugned judgment dated 10-04-2014 passed by the learned Additional Sessions Judge, Dhubri in Sessions Case No. 59/2001 convicting and sentencing the accused/appellants under Sections 302/34 IPC is accordingly set aside. The accused/appellants be set at liberty forthwith unless they are required to be detained in connection with any other case. 16. Appeal is allowed.