JUDGMENT : Shree Chandrashekhar, J. In S.C. case No. 229 of 2008, the appellants have been convicted and sentenced to R.I. for life with fine of Rs.2,000/- each under Section 302 IPC, R.I. for seven years under section 201, IPC and R.I for three years under Section 148, IPC; all the sentences to run concurrently. 2. At about 10:00 a.m. on 31.08.2008, statement of Jitan Hansda, the husband of Maisuri Murmu, was recorded by the officer-in-charge of Pakuria P.S. at village-Salgadih. On the basis of his fard-beyan, Pakuria P.S. Case No. 30 of 2008 was lodged against the appellants, namely, Satan Murmu, Babulal Murmu, Dinesh Murmu, Noren Murmu, Umesh Murmu and Ramesh Murmu under Sections 147, 148, 149, 302 and 201, IPC. After the investigation a charge-sheet was submitted against them and charges were framed under Section 148, Section 302 and Section 201, IPC. During the trial the prosecution has examined ten witnesses to prove the charge against the accused persons. Parmeshwar Murmu-P.W. 1, Novel Soren P.W. 3, Dhena Tudu-P.W. 4, Kaka Tudu-P.W. 5, Metal Murmu-P.W. 6 and Srijan Tudu-P.W. 7 are the co-villagers, P.W. 2 is father of the informant who has been examined as P.W. 9. 3. The defence has set-up a case that none of the witnesses has seen the accused persons committing the crime and at the instance of P.W.2, father of the informant, they were implicated in this case to grab their land. 4. The case of the prosecution is that in the morning of 03.08.2008 Maisuri Murmu was going to dispose cow dungs and at about 100 meters south from her house the accused persons waylaid and assaulted her with Lathi, Sabbal and Tanga. Dhena Tudu and Jitan Hansda have seen the accused person assaulting her. After some time on a search by the villagers the dead body of Maisuri Murmu was found in her own field at about 1/2 kilometer from the place where she was assaulted by the accused persons. There was a dispute in respect of the land comprised under Jamabandi No. 44 and that was the reason she was killed by them. 5. Maisuri Murmu has died a homicidal is not disputed by the defence. P.W.8, Dr. Raj Kumar Chaudhary has conducted the post-mortem on 04.08.2008 at 10:20 a.m. and found one deep sharp-cut injury; 4" x 5" in size, on back of the scalp of Maisuri Murmu. 5. Maisuri Murmu has died a homicidal is not disputed by the defence. P.W.8, Dr. Raj Kumar Chaudhary has conducted the post-mortem on 04.08.2008 at 10:20 a.m. and found one deep sharp-cut injury; 4" x 5" in size, on back of the scalp of Maisuri Murmu. He has also found multiple rib fractures and extensive laceration with plenty of blood in the cranial cavity. A sharp cutting heavy weapon was used in the crime can be gathered from the observation of P.W. 8 who has found the skull bone cut upto the brain matter. He has also observed bleeding from her ears and nose. 6. P.W. 4 and P.W. 9 are the star witnesses for prosecution. P.W. 4, a co-villager, has deposed in the Court that on the day of the occurrence at about 6:30-7:00 a.m. when she was going to Chattan Tola from Salgadih she heard hullah. When she moved ahead she found Satan Murmu, Babulal Murmu, Umesh Murmu, Ramesh Murmu and Noren Murmu assaulting Maisuri Murmu with Sabbal and Lathi. She fled away home and at about 9:00 a.m. raised hullah. She along with the villagers went to the place of occurrence where she has seen trampled maize crops but the dead body was not there. She has further stated that police had recovered the dead body from a paddy field. P.W. 9 has deposed in the Court that on 03.08.2008 at about 7:00 a.m. his wife had gone to dispose cow dung and when she moved about 100 meters south from house the accused persons forming an unlawful assembly started assaulting her with Lathi, Tanga, Sabbal and rod. On hearing hullah when he went there the accused persons tried to kill him so he fled away and hid in the house of Parmeshwar Murmu who is Nayaki of the village. He says that he informed him about the incident and he alongwith the villagers started searching the dead body as the dead body was not found at the place where the accused persons had assaulted his wife and the dead body was found about 1/2 kilometer south in the field. He has seen Tanga injury on back of the scalp of his wife. He has affirmed that he gave his fard-beyan to police. He has stated that he had escorted the police to the place of occurrence from where an iron rod was recovered. He has seen Tanga injury on back of the scalp of his wife. He has affirmed that he gave his fard-beyan to police. He has stated that he had escorted the police to the place of occurrence from where an iron rod was recovered. He has further stated that after his marriage in the year 1979 with Maisuri Murmu he was staying in his in-laws' house as "Ghar Jamai" and the accused persons had dispute pertaining to the land comprised under Jamabandi No. 44, extent 11 bighas, 11 Kathas and 11 dhur. 7. P.W. 1 and P.W. 3 are the inquest witnesses. They have deposed in the Court that inquest report was prepared in their presence. P.W. 3 has identified his signature on the carbon-copy of inquest report. However, P.W. 1 has stated in his examination-in-chief that he does not know anything about the occurrence and P.W. 3 has also not said anything about the death of Maisuri Murmu, P.W. 2 and P.W. 3 have stated about seizure of iron rod. They have asserted that the seizure-memo was prepared in their presence. P.W. 2 has stated that one iron rod, 10 mm thick and one meter long was recovered in his presence but the in investigating officer has stated that iron rod was seized because it was lying there. P.W. 5, P.W.6 and P.W.7 have been examined by the prosecution to establish that after committing murder of Maisuri Murmu the accused person had carried her dead body about 1/2 kilometer and dumped in another field. P.W. 5 has also stated that the accused persons had confessed before him that they have killed Maisuri Murmu. 8. On such evidence the charge against the appellant can be found proved, but, what has transpired during cross-examination of these witnesses creates serious doubt on truthfulness of their testimony in the Court. 9. The place of occurrence the manner of occurrence motive for the crime and presence of the prosecution witnesses in the field in the morning of 03.08.2008 are in serious controversy. 10. 9. The place of occurrence the manner of occurrence motive for the crime and presence of the prosecution witnesses in the field in the morning of 03.08.2008 are in serious controversy. 10. In "Thaman Kumar v. State of Union Territory of Chandigarh" reported in (2003) 6 SCC 380 , the Hon'ble Supreme Court has observed that manner of assault, position of the victim, resistance offered by him, opportunity available to the witnesses to see the occurrence like their distance, presence of light and many other similar factors have to be taken into consideration in judging the reliability of ocular testimony. According to the prosecution, Maisuri Murmu was assaulted by the accused persons in a maize field about 100 meters south of her house and the dead body was thrown about 1/2 kilometer away in another field. P.W. 4 and P.W. 9 have stated that assault upon Maisuri Murmu has happened in a Maize field and P.W. 9 has stated that the dead body was found in a paddy field. However, the investigating officer has not found any trampling mark at the first place of occurrence and the dead body was not found in a paddy field and he has not seen any trace of blood at any place. P.W. 7 has stated that at about 7:00 a.m. he had gone for grazing buffaloes and at that time he has seen Dinesh, Satan and Babulal Murmu carrying some thing in a gunny bag on a cycle but a gunny bag was not found at the place where the dead body of Maisuri Murmu, was lying. It has come in the evidence of prosecution witnesses that there are several houses in the village, there is a road in the middle of the village and around the road there are houses and there is a Muslim basti just adjacent to Salgadih. P.W.9 has admitted in his cross-examination that P.W. 1, P.W. 3, P.W. 5, P.W. 6 and P.W.7 are living on the far eastern side of the village and his house is on the western side of the village. He has further stated that behind his in-laws' house Karu Miyan, Hafazuddin Miyan and Samsuddin Miyan are residing at a distance of 50 yards. He has further stated that behind his in-laws' house Karu Miyan, Hafazuddin Miyan and Samsuddin Miyan are residing at a distance of 50 yards. He has further admitted that his house is about six house away from the house of P.W. 1 and around their house Budhinath Murmu and Roshan Murmu with whom he has a dispute and Bhim Murmu, Birenthiyas Tudu and Pal Tudu are residing. In her cross-examination, P.W. 4 has admitted that her house is next to the house of P.W. 1 and Noren Murmu, Satan Murmu and Maisuri Murmu are living on western side. There is a school on southern side of the house of Noren Murmu and about 100 feet from there Muslims are residing. The in investigating officer has also found that 50 meters on southern side of the place of occurrence there is a pond; maize field of Dinesh Murmu is about 3 meters on the eastern side of the pond and; on the western side house of Yogen Murmu is about 20 meters away. In these facts, it is unbelievable that if the incident has happened in the early morning no one from the village which is thickly populated could have seen the accused persons assaulting Maisuri Murmu, or at least near the place of occurrence. 11. P.W. 4 has claimed that near the pond which is adjacent to the house of Noren Murmu she had heard hullah and P.W. 9 has also claimed that on hearing cries of his wife he had gone to the place of occurrence. However, P.W. 4 says that she was alone at the place of occurrence. She has not said anything about P.W. 9 and P.W. 9 has also not spoken about presence of P.W. 4 near the place of occurrence. Both have claimed that they ran away from the place of occurrence, however, they have not seen each other. It is a thickly populated village and their houses are so close that it is not possible that they could not have seen each other had they gone to the place of occurrence. In fact, P.W. 4 has been projected as a chance witness but she has failed to establish her presence at the place of occurrence. She has stated that she was going to Chattan Tola to visit and old man who was her father-in-law in relation but she has failed to disclose his name. In fact, P.W. 4 has been projected as a chance witness but she has failed to establish her presence at the place of occurrence. She has stated that she was going to Chattan Tola to visit and old man who was her father-in-law in relation but she has failed to disclose his name. 12. There is another reason to disbelieve claim of P.W. 4 and P.W. 9 that they have seen the appellants assaulting Maisuri Murmu. P.W. 4 has stated that she had informed P.W. 1 and the villagers about the occurrence but she has failed to give their name and P.W. 1 has not stated that she had informed him about the incident. P.W. 9 has stated that P.W. 1 and other villagers had gone in search for his wife but P.W. 4 says that P.W. 1 had gone to the place of occurrence on her information and only after the police arrived there. Further, P.W. 9 has claimed that he informed P.W. 1 about the occurrence but P.W. 1 has not said anything about this when he was examined in the Court and P.W. 2, the father of P.W. 9 has also not stated in the Court that his son disclosed name of the accused persons. 13. The above facts, particularly inconsistencies and deficiencies in the prosecution evidence have no doubt shaken credibility of P.W. 4 and P.W. 9. 14. There is some controversy about the time when the police had arrived in village. Though it is stated in the fard-beyan that it was recorded at about 10:00 a.m. in village Salgadih, P.W. 4 has stated that the police had arrived between 11:00 a.m. and noon and P.W. 3 has stated that the police had arrived in the village in the afternoon. The distance between the place of occurrence and the police station was about 10 kilometers and who gave information to the police about the incident was not disclosed by the prosecution; the investigating officer has stated that on rumour he had proceeded to village Salgadih. The time of occurrence had also been seriously challenged by the defence in the context of the observation of P.W. 8 who has found semi-digested food with foul smell in the stomach of Maisuri Murmu. The time of occurrence had also been seriously challenged by the defence in the context of the observation of P.W. 8 who has found semi-digested food with foul smell in the stomach of Maisuri Murmu. In the cross-examination, P.W. 8 has stated that in 8-10 hours the food is completely digested and within 6-8 hours the food shall be in semi-digested condition. This statement of the doctor and his findings recorded in post-mortem report do not corroborate the prosecution story that in early morning the incident had happened. 15. It is fairly a settled proposition that in case of variance between medical evidence and ocular evidence, evidence of the eye-witnesses shall get primacy primarily because medical evidence is basically opinionative and minor inconsistencies would not make manner of occurrence doubtful. But, in this case the medical evidence does not corroborate the ocular evidence in large parts. A deep sharp-cut injury of the size "4 inches x 5 inches" cannot be caused by sabbal or iron rod and it is not established by the prosecution that tanga is a heavy sharp cutting weapon; the injury was so deep that the scalp bone was cut upto the brain matter. The prosecution has failed to establish that the injury found on Maisuri Murmu was possible to have been caused with lathi, sabal, tanga or iron rod. In "Mani Ram Vs. State of U.P." reported in 1994 Supp(2) SCC 289, the Hon'ble Supreme Court has observed that in a long series of judgments it has been held that where the direct evidence is not supported by the expert evidence then the evidence is wanting in the most material part of the prosecution case and if the evidence of the prosecution witness is totally inconsistent with the medical evidence that shall be a most fundamental defect in the prosecution case and unless this inconsistency is reasonably explained the entire prosecution case shall fail. 16. If it is found that there are serious discrepancies in the evidence and story disclosed by the witnesses does not appear to be probable, in our opinion, the Court should not act upon testimony of the prosecution witnesses and it must be held that the prosecution has failed to establish the charge beyond reasonable doubt. The present one is a case of that kind. 17. The present one is a case of that kind. 17. Except P.W. 4 and P.W. 9, none of the prosecution witnesses has stated anything material about the occurrence; they have denied knowledge about the occurrence. P.W. 5 has stated that at about 7:30 a.m. he was ploughing field but he has not said anything about the occurrence. In his cross-examination, he has said that at the time he was ploughing field he has not seen anything. When the accused persons crossed him Noren asked for tobacco and they told him that they have killed Maisuri Murmu in Bari and they have disposed off dead body in the filed. He does nothing thereafter rather continues to plough the field. He has further stated that around 8:30-9:00 a.m. he came back to village. By that time the police had arrived there and he had gone there and seen dead body of Maisuri Murmu. He has stated that his statement was not recorded by the police in the village but the police inquired from hiim at Pakuria police station. At the time when the accused persons came to him he was ploughing the field of Ganesh Hembrom who was also present there. But, Ganesh Hembrom was not examined during the trial and P.W. 5 has admitted that he did not inform him about the incident. 18. In "Kavita vs. State of T.N." reported in (1998) 6 SCC 108 , the Hon'ble Supreme Court has held as under : "4. There is no doubt that convictions can be based on extra-judicial confession but it is well settled that in the very nature of things, it is a weak piece of evidence. It is to be proved just like any other fact and the value thereof depends upon the veracity of the witness to whom it is made. It may not be necessary that the actual words used by the accused must be given by the witness but it is for the Court to decide on the acceptability of the evidence having regard to the credibility of the witnesses." 19. The extra-judicial confession by the appellants before P.W. 5, whose conduct is highly unnatural, is not a reliable piece of evidence. 20. P.W.6 has stated that he came to know that someone has died but he does not know who had died. The extra-judicial confession by the appellants before P.W. 5, whose conduct is highly unnatural, is not a reliable piece of evidence. 20. P.W.6 has stated that he came to know that someone has died but he does not know who had died. He has further admitted in his cross-examination that he has not discussed the incident in the village and his statement was not recorded by the police. At about 7:00 a.m. on 03.08.2008, P.W. 7 has seen Dinesh, Satan and Babulal Murmu carrying something in a gunny bag on a cycle. Beyond this he has not seen anything. He was taken to Pakuria police station where his statement was recorded. He has spoken in Santhali language and it was recorded by the police as told by father of Jitan to him. In the context of the defence taken by the appellants, it is pertinent to record that the investigating officer has stated that in the village there was a "Vichar Mandali" which used to raise disputes on small issues but, of course, he has denied knowledge that P.W. 2 was a member of "Vichar Mandali". 21. The conduct of the prosecution witnesses has also come in for severe criticism; it was highly unnatural. None of them has informed the police, the villagers or even each other about the incident. P.W. 5, P.W. 6 and P.W. 7 are related to each other and from the trend of the cross-examination it would appear that they are planted witnesses. It is true that different persons may react differently in a similar situation and some may be frightened and run away from the place of occurrence, but a witness must offer a convincing and acceptable explanation for his unusual conduct. In the present case the prosecution witnesses have failed to withstand the rigours of cross-examination. The minor inconsistency discrepancy, exaggeration etc. in evidence of the prosecution witnesses can be ignored but if their own statement in the cross-examination challenges their truthfulness, it would seriously shake foundation of the prosecution case. 22. In the present case the prosecution witnesses have failed to withstand the rigours of cross-examination. The minor inconsistency discrepancy, exaggeration etc. in evidence of the prosecution witnesses can be ignored but if their own statement in the cross-examination challenges their truthfulness, it would seriously shake foundation of the prosecution case. 22. Generally in a case based on direct evidence motive does not play an important role, but then, when the prosecution has put forward a specific case based on motive it should have been proved by the prosecution and in a case like the present on in which evidence produced by the prosecution to prove the charge of murder against the appellants is inconsistent and serious discrepancies have been shown by the defence in evidence of the prosecution witnesses, failure of the prosecution to prove motive for the crime would definitely be fatal for the prosecution. 23. According to the prosecution the motive for the crime was a land dispute. The investigating officer has stated that any paper regarding the dispute of land was not produced before him and he has not make enquiry whose name is recorded in khatiyan in respect of Jamabandi No. 44 and P.W. 9 has admitted in his cross-examination that there was no dispute between the accused persons and his wife rather the dispute was with his father-in-law; father-in-law had died long back. He has also admitted that the land in Jamabandi No. 44 is recorded in khatiyan in the name of Hakay Soren and Sufal Soren and he has heard that they were related to his father-in-law. He has further admitted that Jyotin Hembrom, Rajiv Hembrom and Jiyat Hembrom are claiming possession over the land comprised under Jamabandi No. 44 and a case is pending against them with respect to the said land. On such facts, we find that the prosecution has failed to prove motive and complicity of the appellants in the occurrence is in serious doubts. 24. The above being the factual scenario we hold that the prosecution has failed to prove the charge against the appellants and their conviction in S.C. Case No. 229 of 2008 is not sustainable in law. Accordingly, conviction and sentence of the appellants under section 148, section 302 and section 201 of the Indian Penal Code are set-aside. 25. Mrs. Nehala Sharmin, the learned A.P.P., states that the appellants are in custody. 26. Accordingly, conviction and sentence of the appellants under section 148, section 302 and section 201 of the Indian Penal Code are set-aside. 25. Mrs. Nehala Sharmin, the learned A.P.P., states that the appellants are in custody. 26. The appellants, namely (i) Satan Murmu (ii) Babulal Murmu, (iii) Dinesh Murmu (iv) Noren Murmu, (v) Umesh Murmu and (vi) Ramesh Murmu shall be set free forthwith, if not wanted in connection to any other case. 27. Criminal Appeal (DB) No. 662 of 2011 is allowed. 28. Let the lower Court records be sent to the Court concerned, forthwith. 29. Let a copy of the judgment be transmitted to the Court concerned and concerned Jail Superintendent through FAX. Appeal allowed.