JUDGMENT : N.K. Chandravanshi, J 1. This criminal appeal has been preferred by the appellant under Section 374(2) of the Code of Criminal Procedure, 1973 against impugned judgment dated 13-3-2013 passed by the Special Judge (Atrocity), North Bastar, Kanker in Special Sessions Case No. 106/2010, whereby the appellants have been convicted and sentenced in the following manner : Sr. No. Conviction under Section Sentence Fine sentence Default stipulation 1 148, IPC 2 years RI 2. 364, IPC 10 years RI Rs. 1,000/- 1 month additional imprisonment 3 120-B and 302 read with Section 149 of the IPC Life imprisonment Rs. 2,000/- 3 months additional imprisonmen All the sentence shall run consecutively. 2. Case of the prosecution in brief is that, in the intervening night of 1/2-7-2010, when deceased Devendra Pudo was sleeping in the house of Rajendra Sahu (appellant No. 3) at village Murdonda, he was kidnapped by some unknown masked men at about 23.30 hours in the night. On subsequent days, on being searched he could not be traced, hence on 5-7-2010, FIR Ex. P-7 under Section 365/34 of the Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’) was lodged by Rohit Kumar (P.W. 2), against 4 unknown persons. Subsequently, on 7-7-2010, Balkrishna Baghel, juvenile in conflict with law, stated in front of villagers that in the fateful night he along with appellants (excluding Rajendra Sahu) kidnapped the deceased from the house of accused Rajendra Sahu (appellant No. 3), took him to Kusum Dahra Kotri river, where they killed deceased Devendra Pudo and thrown his body. On being searched by villagers, dead body of Devendra Pudo was found in the bank of the river. Thereafter, Merg Ex. P-1 was lodged by Mishrilal (P.W. 1) in PS Pakhanjur. 2.1 Inquest Ex. P-3 was prepared. Post mortem on the body of deceased was conducted by Dr. D.K. Mishra vide Ex. 19. He opined that nature of death was homicidal and cause of death was shock due to cerebral injury prior to 6 days. 3 bamboo sticks were seized from villagers which were brought from the place of occurrence and which contained blood stains and hair. On the basis of memorandum statement of appellant Deluram Kumeti, a blood stained knife was seized vide Ex. P-10. Memorandum statement of appellant Somaram was also recorded as Ex. P-11. Panchnama Ex. 3 bamboo sticks were seized from villagers which were brought from the place of occurrence and which contained blood stains and hair. On the basis of memorandum statement of appellant Deluram Kumeti, a blood stained knife was seized vide Ex. P-10. Memorandum statement of appellant Somaram was also recorded as Ex. P-11. Panchnama Ex. P-4 with regard to disclosure about incident by juvenile Balkrishna Baghel was seized vide Ex. P-14. Chemical report Ex. P-30 of bamboo sticks (3 in numbers) containing stains and hair and knife was collected. Vide Ex. P-31 Forensic report in respect of hair found on bamboo sticks was also collected. Statement of witnesses were recorded. Statement of eye-witnesses were also got recorded under Section 164 of the Cr.P.C. Caste certificate Ex. P-5 of deceased was seized, query report Ex. P-20 was received. Spot map was prepared, accused persons were arrested and after completion, charge sheet was filed in the Court of Judicial Magistrate First Class, Pakhanjur and after committal, the case was tried by the Special Judge. 3. Charges under Sections 148, 364, 120-B, 302/149 of the IPC were framed against the appellants. Charge under Section 3(ii)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1985 was also framed against accused Yashwant Baghel, Rajendra Baghel and Rajendra Sahu. Appellants abjured their guilt. Prosecution in order to bring home the guilt, examined as many as 16 witnesses and exhibited 35 documents. Statements under Section 313 of the Cr.P.C. of the accused persons were recorded, in which they denied the circumstances appearing against them. In defence, they examined two witnesses. 4. The trial Court after appreciating oral and documentary evidence available on record, acquitted the appellants Yashwant Baghel, Rajendra Baghel and Rajendra Sahu of the offence under Section 3(ii)(v) of the SCST Act, but convicted and sentenced all the appellants as mentioned in para 1 of this judgment. Hence, this appeal. 5. Learned Counsel appearing for the appellant would submit that Special Judge is absolutely unjustified in convicting appellants for aforesaid offences, as the prosecution has failed to prove the offence beyond reasonable doubt. Hence, this appeal. 5. Learned Counsel appearing for the appellant would submit that Special Judge is absolutely unjustified in convicting appellants for aforesaid offences, as the prosecution has failed to prove the offence beyond reasonable doubt. He would further submit that learned trial Court has relied on the statement of eye-witnesses and special circumstances proved against the appellants, but since there is gross contradiction in respect of injury caused to the deceased, as has been stated by so-called eyewitnesses and injury mentioned in post mortem report are highly contradictory because in the post mortem report, injury caused by knife has not been mentioned. In this regard, referring the judgment of Apex Court in the case of Sunil Kundu and ors. -v-State of Jharkhand [ (2013) 4 SCC 422 ] and State of Gujarat -v-Patel Mohan Mulji [ AIR 1994 SC 250 ], he submits that since medical evidence is inconsistent with ocular evidence of alleged eye-witnesses, hence the so-called eye-witnesses could not have been relied for convicting the appellants. He would further submit that alleged bamboo sticks have not been seized from any of the appellants and seizure of knife has also not been proved by the prosecution. Despite that, such shaky evidence has been relied by the trial Court. 5.1 Learned counsel for the appellant further submits that it is a case of prosecution itself that deceased was kidnapped in the intervening night from the house of appellant No. 3 Rajendra Sahu, none of the witnesses, even eye-witnesses, have not stated that accused Rajendra Sahu had also gone with other appellants in the place of occurrence and he was involved in any count for causing death of deceased Devendra Pudo. Other witnesses have also not stated anything against appellant No. 3 Rajendra Sahu. He has been implicated in this case only because deceased was kidnapped from his house, but nothing has been brought to prove his involvement in commission of alleged crime. Hence, conviction of appellant No. 3 Rajendra Sahu is wholly un-sustainable. It is prayed that in view of aforesaid submission, impugned judgment is liable to be set aside by allowing this appeal. 6. Hence, conviction of appellant No. 3 Rajendra Sahu is wholly un-sustainable. It is prayed that in view of aforesaid submission, impugned judgment is liable to be set aside by allowing this appeal. 6. Per contra, learned State Counsel would submit that it has been proved that appellants are the persons who hatched conspiracy for causing murder of deceased Devendra Pudo and, therefore, they kidnapped him from house of accused Rajendra Sahu and took him near Kotri river where they killed him by causing injuries by bamboo sticks and knife, which has been proved by eye-witnesses, wherein blood stains have also been reported to be found and proved in FSL report. He would further submit that motive has also been proved by the prosecution that since deceased was having illicit relation with wife of appellant No. 1 Yashwant Baghel, therefore, the accused persons kidnapped and killed the deceased in furtherance of their common object. Hence, the impugned judgment does not suffer any infirmity or illegality and the appeal is liable to be dismissed. 7. We have heard learned counsel for the parties, perused the impugned judgment, record of the trial Court and material available on record carefully. 8. Mishrilkal Pudo (P.W 1) is uncle of deceased. He has stated that deceased was kidnapped in the night from the house of Rajendra Sahu (appellant No. 3) and after about 8 days, his dead body was found in Kotri river. He has also stated that deceased had sustained injuries on his head, chest, abdomen and private part also. His statement has also been supported by Jagdev (PW 5), Vishnu (P.W. 7) and Rajuram (P.W. 10) along with A. Kiron (P.W. 16), who investigated the case. He has also proved Merg report Ex. P-1, which was lodged by Mishrilal Pudo (P.W. 1) and inquest (Ex. P-3) of deceased, which was prepared by him. 9. Dr. D.K. Sinha (P.W. 12) who examined the dead body of deceased Devendra Pudo on 8-7-2010 and prepared Post Mortem report Ex. P-19) has opined that during examination of the dead body, he found that offensive odor was coming from body, whole body swollen, genital organ swollen, there was no injury on it, maggots were running all over body, a compressed fracture on right tempero parietal occipital region, there was blood clotting in the internal part of skull, process of rotting of brain matter started. Diaphragm, rib, pleura, larynx, right lung, heart, intestinal membrane, esophagus, were in process of rotting. He has opined that nature of death of deceased was homicidal and cause of death was shock due to cerebral injury. Thus, aforesaid injury found on the body of deceased and circumstances of instant case proves that nature of death of Devendra Pudo was homicidal. Although Dr. D.K. Sinha (P.W. 12) has admitted in cross-examination that injury caused to the deceased may be caused to a person by falling on the stone towards the head side, but there is no evidence on record to show that the deceased had fallen on stone in any way, rather, eye-witnesses have proved that injury was caused on his head by stick. Dr. Sukhdev Shende (P.W. 13) has also opined vide query report Ex. P-20 that injuries caused to the deceased could be caused by seized bamboo sticks and knife. Therefore, only on the basis of aforesaid admission by Dr. D.K. Sinha (P.W.12), it cannot be held that nature of death of Devendra Pudo was not homicidal. 10. So far as the issue with regard to, that whether appellants are the persons who kidnapped the deceased and caused his murder by hatching conspiracy with common object, is concerned, Chandrika Bai (P.W. 9), who is wife of appellant No. 3 Rajendra Sahu has stated in her deposition that in the intervening night, on being knocked the door of her house, she opened the door, then 4 masked men forcibly entered into her house, some other persons were also there, they took Devendra Pudo with them who was sleeping in her house. She has further stated that on the basis of shirt, she had recognized appellant Yashwant Baghel out of the persons who entered into her house. Rohit Kumar Kashyap (P.W. 2) who lodged FIR Ex. P-7 and who was also sleeping in the house of Chandrika Bai (P.W. 9) has supported her statement. 11. Mukesh Netam (P.W. 3) and Vishnu (P.W. 7) are the eye-witnesses of the case, whom accused persons had called while kidnapping Devendra Pudo from the house of accused Rajendra Sahu. These two eye-witnesses have specifically stated in their deposition that appellant (excluding appellant No. 3 Rajendra Sahu) along with juvenile Balkrishna had taken Devendra Pudo from the house of accused Rajendra Sahu by tying his hands. These two eye-witnesses have specifically stated in their deposition that appellant (excluding appellant No. 3 Rajendra Sahu) along with juvenile Balkrishna had taken Devendra Pudo from the house of accused Rajendra Sahu by tying his hands. They had also taken these two eye-witnesses along with them to Kusum Dahra and Kotri river, there they assaulted Devendra Pudo by bampoo sticks and knife. Vishnu (P.W. 7) has specifically stated that after causing murder of Devendra Pudo, accused persons threw him in the Kotri river. Both theses witnesses have stated in their deposition that when accused persons were assaulting Devendra Pudo, at that time they were standing 10 – 12 fts. far from him. Although despite being eye-witnesses of the incident, they did not disclose the same prior to 7-7-2010 i.e. before disclosing by juvenile Balkrishna, but in this regard, they have specifically stated that accused persons had threatened them that if they will disclose about the incident, then they will kill them also. Hence, not disclosing about incident by them cannot be held fatal to the case of the prosecution 12. Nothing has been elicited in cross-examination of Chandrika Bai (P.W. 9) and eye-witnesses Mukesh Netam (P.W. 3) and Vishnu (P.W. 7) to discard aforesaid statements. Even their aforesaid statement has not been rebutted in their cross-examination. 13. Learned Special Judge has convicted the appellant No. 3 Rajendra Sahu only because, on being called by him, deceased Devendra Pudo and Rohit Kumar Kashyap (P.W. 2) had come in their house as they were already known to each other and in the intervening night they had consumed liquor in the house of accused Rajendra Sahu and from his house, deceased was kidnapped, but eye-witnesses Mukesh Netam (P.W. 3) and Vishnu (P.W. 7) have stated in their deposition that persons involved in kidnapping of deceased Devendra Pudo are only appellant Yashwant Baghel, Neharu, Deluram Kumeti, Soma and juvenile Balkrishna and only these persons had assaulted deceased in the place of occurrence. They have not stated in their deposition that appellant Rajendra Sahu was also involved in kidnapping and killing of deceased Devendra Pudo. They have not stated in their deposition that appellant Rajendra Sahu was also involved in kidnapping and killing of deceased Devendra Pudo. Other witnesses have also not stated anything against appellant Rajendra Sahu in respect of his involvement in the act of crime, hence only because deceased was called by him in his house from where he was kidnapped and killed, his conviction cannot be sustained in absence of any incriminating evidence against him. Thus, it is found that the trial Court has erred in holding him guilty. 14. Both the eye-witnesses Mukesh Netam (P.W. 3) and Vishnu (P.W. 7) have also proved motive of killing of deceased Devendra Pudo by accused persons, as he was having illicit relation with wife of appellant Yashwant Baghel, and therefore, eye-witness Mukesh Netam (P.W. 3) has stated in his cross-examination that appellant Yashwant Baghel assaulted on private part of deceased saying that from this, he commits intercourse with his wife. 15. During course of argument, learned counsel for the appellant submits that motive of other accused persons has not been proved by the prosecution, therefore other accused persons cannot be held guilty. We are not impressed by aforesaid submission, because evidence of both the eye-witnesses proves active involvement of other accused persons namely Rajendra Baghel, Neharu, Deluram Kumeti and Somaram, deceased was kidnapped by them in the intervening night from the house of appellant Rajendra Sahu, taken him near Kotri river from the village Murdonda which is said to be about 10 km far from the village, and assault was also made by them on the deceased which has been proved by the eye-witnesses. Hence these facts not only proves common object of accused persons (excluding appellant No. 3 Rajendra Sahu), but also proves that they hatched conspiracy, thereafter they proceeded to fulfill their common object of kidnapping and killing of Devendra Pudo. Hence, motive of main accused Yashwant Baghel is attached with other accused persons also. 16. A. K. Kiron (P.W. 16) who is Investigating Officer, on the basis of memorandum statement Ex. P-9 of appellant No. 5 Deluram Kumeti, has seized knife from the place shown by him vide seizure memo Ex. P-10. Budhram Kange (P.W. 4) who is witness of memorandum statement (Ex. P-9) and seizure memo (Ex. P-10) has supported that knife was seized from the place shown by accused Deluram Kumeti. P-9 of appellant No. 5 Deluram Kumeti, has seized knife from the place shown by him vide seizure memo Ex. P-10. Budhram Kange (P.W. 4) who is witness of memorandum statement (Ex. P-9) and seizure memo (Ex. P-10) has supported that knife was seized from the place shown by accused Deluram Kumeti. A. K. Koron (P.W. 16) has also stated that from Mishrilal Pudo (P.W. 1), Jagdev (P.W. 5) and Chaitram Nareti, he has seized bamboo sticks containing blood stains and hair vide seizure memo Ex. P-8, P-12 and P-13. Aforesaid memorandum statement and seizure memo have also been supported by Mishrilal Pudo (P.W. 1) and Jagdev Netam (P.W. 5), from whom 3 bamboo sticks were seized, which they had brought from the place of occurrence and vide FSL report Ex. P-30, blood stains have been reported to be found in all the 3 bamboo sticks and knife. Thus, the seizure of knife at the behest of appellant Deluram Kumeti and seizure of bamboo sticks containing blood stains seized from the spot also supports statement of eye-witnesses that accused persons (excluding Rajendra Sahu) caused murder of deceased by bamboo sticks and knife. 17. Although eye-witnesses Mukesh Netam (P.W. 3) and Vishnu (P.W. 7) have stated that deceased was also assaulted with knife by accused, but in the post mortem report (Ex. P-19), no injury caused by knife i.e. cut or stab injury has been mentioned, but it is evident from the facts of the case and medical report also that dead body of deceased was recovered after 6 days of his death, therefore, dead body was swollen and rotten also, maggots were also present, witnesses have not stated that knife injury was caused to the deceased by sharp edged portion, in such a situation, not mentioning any knife injury like cut or stab injury, in the post mortem report cannot be held contradictory or inconsistent with the statement made by eye-witnesses. 18. It is settled proposition of law that, until medical evidence completely makes ocular evidence improbable, the ocular evidence will have primacy over medical evidence. The Supreme Court in the case of Ramanand Yadav -v-Prabhunath Jha [(2003) 12 SCC 606] has held as under :- “17. So far as the alleged variance between medical evidence and ocular evidence is concerned it is trite law that oral evidence has to get primacy and medical evidence is basically opinionative. The Supreme Court in the case of Ramanand Yadav -v-Prabhunath Jha [(2003) 12 SCC 606] has held as under :- “17. So far as the alleged variance between medical evidence and ocular evidence is concerned it is trite law that oral evidence has to get primacy and medical evidence is basically opinionative. It is only when the medical evidence specifically rules out the injury as claimed to have been inflicted as per the oral testimony, then only in a given case the Court has to draw adverse inference.” 19. Aforesaid view has further been reiterated by the Supreme Court in the case of Bhajan Singh @ Harbhajan Singh and another -v-State of Haryana [ (2011) 7 SCC 421 ] and State of Uttarakhand -v-Darshan Singh [ (2020) 12 SCC 605 ] In this case, Hon’ble Supreme Court has discussed elaborately the case laws on the subject of conflict between medical evidence and ocular evidence. 20. Applying aforesaid principle in the facts of the present case, it is evident that in the instant case, dead body of deceased was recovered after 6 days of the incident in the bank of river in rotten condition, and maggots were also present in the whole body. In such a situation, if any knife injury has not been mentioned in the Post Mortem report, only because of it, statement of eye-witnesses cannot be discarded. Moreover, eyewitnesses have not stated that injury by knife was caused from sharp edged side. Hence submission made by learned counsel for the appellants in this regard has no substance. 21. Appellants have examined Balkrishna Baghel as defence witness, who himself is said to be juvenile in conflict with law involved in commission of aforesaid crime. But he has not stated anything about the incident, rather he has stated that he does not know anything about Devendra Pudo. Smt. Neeta Yadav (D.W. 2) is the judicial officer who had recorded statement under Section 164 of both the eyewitnesses namely Mukesh Netam (P.W. 3) and Vishnu (P.W. 7). There is nothing in the statement of defence witnesses to discard the evidence available on record against the accused persons. 22. Smt. Neeta Yadav (D.W. 2) is the judicial officer who had recorded statement under Section 164 of both the eyewitnesses namely Mukesh Netam (P.W. 3) and Vishnu (P.W. 7). There is nothing in the statement of defence witnesses to discard the evidence available on record against the accused persons. 22. Hence, in view of aforesaid discussion, in the considered opinion of this Court, the trial Court has rightly convicted and sentenced the appellants Yashwant Baghel, Rajendra Baghel, Neharu, Deluram Kumeti and Somaram for the offence under Section 148, 364, 120-B, 302 read with Section 149 of the IPC, however erred in convicting and sentencing appellant Rajendra Sahu for the above offences. 23. Consequently, appeal so far as it relates to appellant No. 3 Rajendra Sahu is allowed and the judgment of conviction and order of sentence passed by the trial Court relating to appellant No. 3 are set aside. He is acquitted of all the offences. He is reported to be on bail, his bail bond shall continue for a further period of six months as per requirement of Section 437-A of the Cr.P.C. 24. The appeal of other appellants namely Yashwant Baghel, Rajendra Baghel, Neharu, Deluram Kumeti and Somaram is dismissed being sans substance. Their conviction and sentence imposed by the trial Court are affirmed. However, since the act of all the offences had been done by the accused persons in one series of acts connected together as to form same transaction, hence we set aside the order of learned Special Judge for running all the sentences consecutively and direct that all the jail sentences of the convicted accused persons shall run concurrently. 25. Record of the trial court be sent back.