P.G. AGARWAL, J.

(1.) In Sessions Case No. 24/89 the two accused respondents Shri Ashok Singh and Smt. Ram Pyari Devi @ Singh were tried for commission of the offence under Section 302/ 34 IPC and on conclusion of the trial vide impugned judgment dated 29.8.95, the learned Sessions Judge recorded an order of acquittal and hence the present appeal by the State of Assam.

(2.) The prosecution case, in brief, is that Raj Kishore Singh PW 5 and the informant Dharam Nath Singh are the neighbours of the two accused respondents. Prior to the incident, a cow belonging to the accused persons died and the accused persons suspected the involvement of Raj Kishore Singh and his family in the matter and they also suspected that the cow was administered poison. On 20.6.85, it is alleged that the accused persons started abusing the members of the informants family and even there was an attempt to assault them but somehow the matter was settled. Later on, while Raj Kishore Singh PW 5 was proceeding towards the market, the accused persons gharaoed him and started assaulting him whereupon the injured raised hue and cry and his mother Smt. Kopila Devi rushed to the scene of occurrence, whereupon she was assaulted by the accused persons and she sustained grievous injury on her person. She was removed to Golaghat Civil Hospital, where she succumbed to the injuries. During trial, prosecution examined as many as 15 witnesses. Defence did not adduce any evidence.

(3.) So far the incident of assault leading to the death of Kopila Devi is concerned there is overwhelming oral and medical evidence on record and even the trial court recorded finding to that effect. PW 6 is the Doctor who held autopsy over the dead body of Kopila Devi and found as follows:

"i) One lacerated wound on the vertex " away on right side from the center extending from 1" behind the hair line, size-10cm x 3cm x bone deep with separation of coronal suture on right through out its length. The wound was covered by allotted blood in the gap and with medicinal stitching over it. On dissection, a large haemotoma was found over laying the scalp, size 5cmx3cm. ii) an achymos area of 8 cm X 6 cm on lateral aspect of the left leg. iii) on is section, extra vessated blood was seen, iv) an chhymos area of the dorsum of right hand. size-4cm x 3cm on dissection, extra vessated blood was seen. v) the membrane covering the brain were found contjested over the right temporal and frontal lobe with formation of large haemotoma of 6cmx 10 cm x 4cm in size. vi) brain compressed on the right side by the haemotoma. vii) the injuries were antemortem."

(4.) The Doctor has further opined that the death was due to shock and haemorrhage, as a result of the injuries sustained by the deceased and the injuries could have been caused by blunt and heavy weapon.

(5.) On perusal of the impugned judgment, we find that the trial court was in unnecessary confusion to observe, "the evidence of the doctor has not been supported by the eyewitness account of PW 9 and PW 10". The doctor has categorically stated that the injury on the person of the deceased were caused by heavy blunt weapon and the prosecution evidence on record also shows that the deceased was assaulted by lathi, iron rod and by the blunt side of the sword. We are, therefore, unable to comprehend as to how the medical evidence of PW 6 can be said to be in contradiction or at variance with the oral evidence on record. None of the prosecution witnesses have stated that the deceased was assaulted by the sharper side of the sword.

(6.) Now coming to the evidence of Raj Kishore Singh, we find that he was an eyewitness to the occurrence at the relevant time and this has been deposed to by as many as four other witnesses. Moreover, we find that the accused persons allegedly assaulted Raj Kishore Singh PW 5 and when the mother arrived at the scene to save her son she was assaulted. Raj Kishore Singh PW 5 has also deposed that due to the assault on him he sustained injuries on his person. PW 4 Dr. PK Kalita examined the injuried PW 5 and found the following injuries on his person :

"i. One abrasion over his right thigh and knee, 3 x1". ii. One incised wound over the right middle finger, 1 "x1"x".

(7.) According to the injured, he was assaulted by lathi only and as such the trial court held that the medical evidence shall prevail in the matter. The law is well settled that the medical evidence is opinion evidence only and if the witnesses are believed the so- called inconsistency loses much of its force. In the case of Husaina V. State U.P. AIR 1971 SC 260 [LQ/SC/1970/406] , the court even presumed that the appellant could have used the blunt side of the spade. In the instant case, we find that there is specific evidence that the deceased was assaulted with the blunt side of the sword. We, therefore, find that there is absolutely no inconsistency in the medical evidence of PW6 and the oral testimony on record. Moreover we find in the instant case the trial court proceeded with a misconceived assumption as to whether any incident as stated by the prosecution witnesses had occurred or not, whereas we find that there was a cross case filed by the accused persons arising out of the same incident wherein the accused persons alleged to have received injuries and the benefit of non-explanation of such injuries was extended to the accused persons to which we shall refer again.

(8.) There has been as many as five eyewitnesses to the occurrence and out of them three belonged to the same family of the injured and deceased and two are the independent witnesses who reside nearby. They have deposed that at the relevant time while they were proceeding to their work, on the way, they saw the incident and they deposed to that extent. The trial court simply rejected their statement by stating that they are chance witnesses. The incident took place around 7/7.30 in the morning and these two independent witnesses PW 9 Gujru Nayak and PW 10 Phatowa Nayak have deposed that they generally go out for their work at that point of time. Moreover, they reside at a distance of 2 furlong from the place of occurrence and they know both the sides. They are no way related to either side and they belonged to the tea garden community and the trial court also did not find any material to discard their testimony and simply ignored their testimony stating that they are chance witnesses. Generally speaking, if by coincidence or by chance, a person happens to be at the place of occurrence at the relevant time, he is called a chance witness. However when a person residing in the same locality and he uses a particular road or path every day for going to his work and returning home, he cannot be said to be a chance witness. In the case of Rana Pratap V. State of Haryana, AIR 1983 SC 680 [LQ/SC/1983/154] , the Apex Court observed:

"The expression "chance witness" is un-under- standable. Murders are not committed with previous notice to witnesses, soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses., If murder is committed in a brothel, prostitutes and paramours are natural witnesses. If murder is committed in a street, only passers by will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere "chance witnesses". To discard the evidence of street hawkers and street vendors on the ground that they are "chance witnesses", even where murder is committed in a street, is to abandon good sense and take too shallow a view of the evidence."

(9.) On perusal of the evidence of these two witnesses, we find that the defence tried to suggest that they are inimically deposed towards the accused persons and these suggestions were denied. The defence did not adduce any evidence or produced any documents to show that PW 9 was the accused or even a suspect in the dacoity in their house.

(10.) Referring back to the medical evidence, we find that the observations of the trial court, so far the conducting of the post mortem is concerned, is ill founded. However, there were some inconsistencies as regards one injury on the person of the injured Raj Kishore Singh PW 5 who has sustained two injuries and who claimed that he was assaulted by lathi only. Whereas the doctor has stated that out of the two injuries one may be due to lathi but the other was caused by a sharp cutting weapon, as it was an incised injury. In a recent case of Gangadhar Behera V. State of Orissa, (2002) 8 SCC 381 [LQ/SC/2002/1070] , the Apex Court observed:

"20. At this juncture, it would be appropriate to deal with the plea that ocular evidence and medical evidence are at variance. It would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses account which had to be tested independently and not treated as the "variable" keeping the medical evidence as the "constant".

(11.) In the case of Mam Ram V. State of Rajasthan, 1993 Supp (3) SCC 18, the Apex Court even observed, "medical evidence is opinion evidence and is hardly decisive."

(12.) In the present case we find that the learned trial Judge had recorded an order of acquittal by stating:

"The cumulative effect of all the discussions is that the prosecution case is vitiated with the following loopholes:

(1) The independent witnesses, namely Binod Dutta and Babulal Nayak although appeared and claimed to have seen the occurrence, have not supported the case of the prosecution,

(2) The evidence of P W 9 and P W 10 appear to be interested and chance witnesses. Their evidence has not been corroborated by other witnesses. The description of the assault by a dao on the person of the deceased has not been supported by any other witnesses. The story of the seizure of the lathi in presence of the witness No. 9 is also doubtful. This witness categorically stated that he did not put his signature on the seizure list.

(3) PW 5 is the injured, PW7 and PW 13 are non else but the father and brother of PW5. They posed themselves as eyewitnesses to the incident. PW 5 made no mention of the presence of his brother PW 13 at the place of incident. But PW 13 on the other hand claimed to be the eyewitness to this incident. PW 5 did not state that accused Ram Piyari Singh was one of the assailant. By badly belying the evidence of PW 5, PW 7 has stated that he saw accused Ashok Singh dealt two blows on the person of his wife with to different weapons namely one lathi and one iron rod. The learned counsel for the defence has submitted that this story projected by this witness is nothing but a travesty of truth. A man is not expected to start fighting with two weapons in such situation.

(4) The medical evidence namely the evidence of PW 4 and 6 has completely belied the eye witness account of PW 5, PW7, PW9, PW 10 and PW13.

(5) Some vital contradiction and material omissions in the statement of the witnesses before the Investigating Officer has been elicited from the evidence of the I.O.This has elaborately been discussed in the foregoing paras.

(6) The evidence of PW 3. PW 9 and PW 10 clearly indicates that there was an exchange of lathis blows between the accused Ashok Singh and the injured Raj Kishore Singh. This fact has been fortified by the Statement of the accused recorded in section 313 Cr. P.C. to the effect that they were assaulted by the witnesses namely, PW5, PW7, PW13 and others, the injured Ashok Singh was also medically examined and a certificate of the Doctor indicates that the injuries sustained by him was caused by blunt and sharp weapon.

(7) The prosecution did not explain the injuries sustained by the accused Ashok Singh."

(13.) So far ground No. 1 is concerned it was non-existent as the two witnesses did not support the prosecution and the latter did not demand conviction on the basis of their testimony. So far ground No. 2 and 4 are concerned, the matters have been dealth with as above. Now coming to ground No. 5, in the present case, we find that the incident had taken place in the year 1985 and the statement of witnesses were recorded sometime in the year 1992-93 that is after 7/8 years of the incident and the witnesses are also unsophisticated, uneducated, rural villagers/ daily wage earners. In the case of State of Haryana V. Surat Singh (1997) 4 SCC 192 [LQ/SC/1997/249] , it was observed that where three persons were assaulted by a number of persons at one and the same time with different weapons in such situations some contradictions as to who assaulted whom and with what weapon cannot be made a ground to reject the evidence of eyewitnesses. Minor contradictions or inconsistencies are immaterial. In the case of State of Himachal Pradesh V. Lekh Raj, (2000) 1 SCC 247 [LQ/SC/1999/1077] , the Apex Court has distinguished minor discrepancies from contradictions and held that minor discrepancies or variance in evidence does not make the case doubtful. The Apex Court further observed that the court should adopt a rational approach and hyper technicalities and figments of imagination should not be allowed to over ride realistic and genuine approach. Similar observations were made in Gangadhar Behera (supra) where the Court went to distinguish between the normal discrepancies and material discrepancies and observed that normal discrepancies do not affect the evidence on record.

(14.) So far ground No. 6 and 7 are concerned, non-explanation of the injuries on the person of the accused person is not always fatal to the prosecution. The trial court has placed reliance on a decision of the Apex Court reported in AIR 1976 SC 2263 [LQ/SC/1976/328] , Rajbir Singh Vs. State of Bihar, to observe that the prosecution has suppressed the genesis and origin of the occurrence. In the present case, the prosecution evidence was very specific and clear that prior to the present incident, the accused persons who are the neighbours gathered in front of the house of the complainant and hurled abuses and when retaliated, they returned back to their house and subsequently when PW 5 proceeded towards the market he was assaulted. This part of the evidence was not challenged whereas the defence came up with their version of the incident that the accused persons entered into their house and assaulted them and for which they have filed a counter case.

(15.) The question of explanation of the injuries arises where there is certain evidence on record to show that the accused persons had sustained injuries on their persons. Admittedly, the defence did not adduce any evidence to show that the accused persons sustained injuries nor the doctor was examined to bring on record the nature of alleged injuries. The court, however, observed that the fact of receipt of injuries by the accused persons has been substantially hinted from the evidence of PW9 and PW 10. The court has, as stated above, disbelieved PW 9 and PW10 stating that they are chance witnesses but so far the alleged injury on the accused persons is concerned, it has relied on their testimony. Further, the question arises whether by merely stating or hitting that in the above incident, the accused persons had sustained injuries is enough or not. In the case of Ayodhya Ram Alias Ayodhya Prasad Singh V. State of Bihar (1999) 9 SCC 139 [LQ/SC/1999/14] , the Apex Court held:

"7. So far as the injuries on the accused persons are concerned and no explanation of the same was given by the prosecution, no doubt that some of the accused persons were found to have been injured but the injuries were of such nature that the courts below came to the conclusion that the prosecution was not obliged to explain those injuries. It is too well settled that the prosecution is not bound to explain each and every injury on the accused persons irrespective of the nature of the injury and in respect of some minor injury on the accused, if no explanation is offered by the prosecution, the prosecution would not fail on that score. Mr. Sanyal in the course of his arguments had also raised a contention regarding the delay in lodging the first information report. But on a careful examination of the record available, we find that the said report has been given immediately after the occurrence and there has been delay in despatching the first information report from the outpost to the police station, which is of no consequence."

(16.) In a later case of Takhaji Hiraji V. Thakore Kubersing Chamansing (2001) 6 SCC 145 [LQ/SC/2001/1190] , the Apex Court, upon consideration of its earlier decisions reiterated the view expressed in Ayodhya Ram (supra). In a later case of Rizan V. State of Chhattisgarh, reported in (2003) 2 SCC 661 [LQ/SC/2003/85] , the Apex Court went to the extent in observing that where the prosecution case/ evidence is clear, cogent independent disinterested and credit worthy, there is no need for the prosecution to explain the injuries on the accused persons. In the present case there is absolutely no materials on record to show that the accused persons did sustain any injuries in the above incident and as such the question whether it was a minor injury or a major injury does not arise. Further, we find that the trial court had taken contradictory/ irreconcilable stand in the matter. On one hand it found fault with the prosecution for not explaining the alleged injury on the person of the accused person arising out of the same incident and on the other hand it found that there was no incident as alleged by the prosecution although one of the victims died subsequently in the hospital and the other also sustained injuries.

(17.) In this case PW 5, PW 7 and PW 13 are the members of the same family as PW 5 and PW 13 are two brothers and PW 7 is their father. They all claim to be the eyewitnesses to the occurrence. The incident had taken place just near their house as they are the neighbours of the accused persons and the assault took place in front of the house of the accused persons. The incident took place in the early hours around 7/7.30 AM. and naturally they are the most natural witnesses. PW7 claims that his wife the deceased and he came out on hearing shout for help made by their son PW. 5 PW 13 on the other hand, however, claims that he was following his brother to the market. Hence, can these witnesses be disbelieved merely because they happen to belong to the same family and their evidence can be discarded on the ground that they are interested witnesses The law is well settled that interested witnesses are not necessarily false witnesses. In the case of State of Uttar Pradesh V. Binode Kumar, 1992 Crl. L.J. 1115, the Apex Court reiterated its earlier observation in the following words:

"Mere inlerestedness by itself is not valid ground for discarding or rejecting the sworn testimony and nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction. What all that is necessary is that the evidence of interested or related witnesses should be subjected to a very careful scrutiny with extreme case and caution and if on such scrutiny the testimony is found to be intrinsically reliable then that evidence may be relied upon in the circumstances of the particular case to base a conviction thereon."

(18.) In the present case, the wife of PW 7 and mother of PW 5 and PW 13 had died and as such there was no earthly reasons on their part to falsely implicate or involve the accused persons and thereby allow the real assailants to go scot free. Further the prosecution witnesses have not tried to implicate the entire family members of the accused persons and have deposed about the injuries caused by the two accused appellants only.

(19.) In view of what has been stated above, we find that the very approach of the trial court in conducting the above sessions trial was to find a short cut to record the acquittal and for that purpose the court was on a look out for loopholes in the prosecution case and after recording the above loopholes No. 1 to 7 in the impugned judgment, acquitted the accused persons. The court has failed to appreciate the prosecution evidence in proper perspective.

(20.) So far the scope of interference in appeal against acquittal is concerned, this court in the case of State of Assam V. Radha Oil Industries (1987) 1 GLR 134 held that the High Court should give appropriate weight and consideration to the following aspect:

"(i) the views of the trial court as to the credibility of the witnesses should be properly weighted and considered; (ii) the presumption of innocence in favour of the accused is never weakened by the fact that he has been acquitted at the trial: (iii) the right of the acquitted persons to the benefit of reasonable doubt should not be denied on the score that they have been acquitted and are no longer accused : (iv) the appellate court should be slow in disturbing the findings of fact reached by the trial Judge who had the advantage of personally seeing the witnesses :and (v) When the High Court does not agree with the view of the trial court yet reaches the conclusion that the view expressed by the trial court is reasonably possible, the same should not be disturbed."

(21.) In the case of Banwari Ram v. State of UP (1998) 9 SCC 3 [LQ/SC/1997/1663] and K Ramakrishnan Unnithan V. State of Kerala (1999) 3 SCC 309 [LQ/SC/1999/278] , it was held that appeal against acquittal are not distinct in nature from appeal against conviction. The High Court has full powers to re appreciate the evidence and arrive at a different conclusion. The court should not interfere merely because another view is plausible. However, if the reasons given by the trial court are not sustainable and appreciation of evidence is per se bad, there will be no limitation on the part of the High Court to set aside the order of acquittal.

(22.) In the present case, we find that appreciation of the evidence of the five eyewitnesses was not in accordance with the settled position of law. The trial court perfunctorily discarded the evidence of these eyewitnesses stating that two of them are chance witnesses and three are interested witnesses. There is no finding that in the present case there are other independent witnesses available and they have not been examined by the prosecution. The five eye witnesses who are available have been examined and their testimony cannot be thrown over board by merely stating that two of them are chance witnesses and three are related witnesses. The very approach in disposing of the criminal trial that too a serious trial of murder on such superficial view of the matter, leading to unwarranted acquittals, in turn affects the very fibre of the society and reproach in judiciary. So far the alleged non- explanation of injuries and appreciation of medical evidence is concerned, we have no hesitation to hold that it was per se bad and unwarranted and against the settled position of law, as upheld by the Apex Court. The prosecution evidence is quite convincing, true and reliable. There may be normal discrepancies/inconsistencies when people depose after long gap but if the witnesses are found to be reliable and they have deposed what they have witnessed, we find absolutely no materials to disbelieve or discard their testimony.

(23.) In view of the foregoing discussions, we allow this appeal and set aside the order of acquittal recorded by the trial judge.

(24.) In this case, we find that the two accused appellants have assaulted the deceased as a result of which the deceased died after two days. Considering the facts and circumstances of the case and the fact that the sharp side of the sword was not used in assaulting the deceased, the intention to cause death cannot be inferred and accordingly, we hold the two accused persons guilty of commission of the offence punishable under Part-II of Section 304 IPC read with Section 34 IPC.

(25.) We have heard the learned counsel for both sides.

(26.) As regards the sentence and on consideration of the fact that the incident had taken place long 19 years back, we sentence the two accused respondents to rigorous imprisonment for a period of four (4) years and to pay a fine of Rs. 5000/- each, in default further imprisonment for one month. The period of imprisonment undergone by them shall be set off under Section 428 Cr. P.C. The accused persons are directed to surrender forthwith before the Chief Judicial Magistrate, Golaghat.

(27.) Send down the records to the Chief Judicial Magistrate, Golaghat for doing needful in the matter.