S. L. TALATI, J. ( 1 ) THE State has challenged the judgment rendered by the Additional Sessions Judge Bhavnagar in Sessions Case No. 71/79 by which the learned Addl. Sessions Judge was pleased to acquit the seven accused persons. Before entering into the facts of this case we may state that the appeal against the acquittal is already dismissed so far as accused Nos. 2 to 5 and 7 are concerned and now therefore we are concerned with the appeal against original accused No. 1 and original accused No. 6. The facts according to the prosecution are as under: ( 2 ) ON the night which started on 19th February 1979 and which was to end on 20th February 1979 at 3 a. m. accused No. 1 went to the house of deceased Daud Mohmadbhai and knocked the door. On the same day at 8. 00 a. m. Mohmad Ala P. W. 1 of Daud went to Issa Vira and had a talk with the brother of accused No. 7. Again on the same date at 1. 45 p. m. there was exchange of words between the deceased and the accused Nos. 2 3 4 and 5 and 6. Mohmad Ala P. W. 1 and Mohmad Ali P. W 4 intervened Nothing happened on that day. On the next day i. e. on 21-2-1979 at about 11. 30 a. m. in the locality known as Navapara exchange of abuses took place between the deceased and the accused No. 1. Accused No. 7 and father of de ceased separated them. The real incident occurred thereafter at about 12. 00 or 12. 30 p. m. The deceased was passing from his dehli and he was going towards Kesharbais Masjid. Accused Nos. 3 and 4 ran after the deceased with dhokas. Accused No. 5 also went there running and gave a push. Deceased fell down. Accused Nos. 2 and 7 went there and they shouted kill him. It appears from the prosecution case that accused No. 3 4 5 2 and 7 beyond running and uttering words did nothing. In the mean time accused No. 1 came there and he gave knife blow on the back of the deceased. Mohmad Ala P. W. 1-father of the deceased tried to save his son and at that time accused No. 6 gave him a blow with dhoka on the head. Many persons gathered there. In the mean time accused No. 1 came there and he gave knife blow on the back of the deceased. Mohmad Ala P. W. 1-father of the deceased tried to save his son and at that time accused No. 6 gave him a blow with dhoka on the head. Many persons gathered there. Mohmad Ala P. W. 1 was removed to the hospital P. S. I. Chandel P. W. 14 Exhibit 47 went to the hospital. He was recording the complaint. At that time Dr. Gavasia gave information by phone at the police station Bhavnagar and the information was that Mohmad Ala aged 52 residing Nat avapara was admitted in Ward No. 8 for treatment because of scufflelt was further stated that his condition was normal and Sr. P. S. I. has already arrived at the hospital. That information was conveyed at 2. 00 p. m. and the Police Station Officer made an entry in the Station Diary. Immediately there is another entry Exhibit 44 in which it is stated that a complaint was received from Sr. Police Sub-Inspector and therefore the offence was registered under Sections 302 323 405 and 34 I. P. C. and special reports were sent. That was Yadi written by Sr. Police Sub-Inspector to the Police Station Officer. It was mentioned that the offence occurred at 12. 45 noon and it was registered at 2. 1 p. m. which was received by the Police Station Officer at 2. 20 p. m. The offence was registered as above. The complaint which was recorded by P. S. I. Chandel was marked A by the learned Addl. Sessions Judge and it was not exhibited. P. S. I. Chandel thereafter started investigation and he is examined as P. W. 14 at Exhibit 47. According to him he reached the hospital at 1. 45 p. m. he saw a crowd and therefore on inquiry he came to know about the incident. He met Mohmad Ala in Ward No. 8 questioned him and recorded his complaint. He stated that it was recorded in his own hand and signature of the complainant was obtained in his presence. Thereafter according to him he sent report Exhibit 44 at the Police Station for registering the offence. The offence was registered at Criminal Register No. 51/79 and he received the report Exhibit 45 and started investigation. He stated that it was recorded in his own hand and signature of the complainant was obtained in his presence. Thereafter according to him he sent report Exhibit 44 at the Police Station for registering the offence. The offence was registered at Criminal Register No. 51/79 and he received the report Exhibit 45 and started investigation. He went to the scene of offence and prepared inquest panchnama Exhibit 13. Thereafter he prepared the panchnama of the scene of offence Exhibit 24 and recorded statements of Alimahmad Hajibhai and Abdul Valibhai. He arrested six accused persons on that day at 5. 15 p. m. and recovered the knife and other articles which were blood stained and prepared panchnama Exhibit 39. Accused No. 7 gave a complaint under Section 323 I. P. C. which was noted as N. C. complaint and thereafter accused No. 6 was also arrested. According to the P. S. I. there was injury on his person which was noted in the panchnama. Accused No. 6 was there-after sent to the hospital for treatment. On 22-2-1979 the accused were sent to judicial custody. On 23-2-1979 statement of Bachuben and Juvedaben-widow of deceased were recorded. The articles seized were sent to Forensic Laboratory for opinion. Dead body was already sent on 21-2-1979 for post-mortem examination after inquest panchnama. H ead Constable Kathad produced the clothes etc. of the deceased and the injured which were attached. Ultimately after completing the investigation on 31 charge-sheet submitted in the Court of the Judicial Magistrate First Class Bhavnagar. In due course the case came to be committed to the Court of Sessions. At the trial before the learned Additional Sessions Judge in all 14 witnesses were examined. Accused denied the guilt and did not lead any defence. Ultimately after hearing the arguments the learned Addl. Sessions Judge came to the conclusion that the offence against the accused persons was not proved beyond reasonable doubt and therefore for reasons stated in the judgment he acquitted the accused persons. The State has filed this Appeal challenging the acquittal. As stated above the appeal against accused Nos. 2 to 5 and 7 is already dismissed and therefore we have to decide the appeal so far as accused Nos. 1 and 6 are concerned. The State has filed this Appeal challenging the acquittal. As stated above the appeal against accused Nos. 2 to 5 and 7 is already dismissed and therefore we have to decide the appeal so far as accused Nos. 1 and 6 are concerned. Before referring to the evidence which was led in the case it is required to be stated that it is an appeal against the acquittal. Therefore certain principles which are well-settled are required to be remembered at the time of reappreciation of evidence on record. The first is the case of Sheo Swarup and Others v. King Emperor AIR 1934 Privy Council 227 (2) wherein it was observed as under:it cannot be said that the High Court has no power or jurisdiction to reverse an order of acquittal on a matter of fact except in cases in which the lower Court has obstinately blundered or had through incompetence stupidity or perversity reached such distorted conclusions as to produce a positive miscarriage of justice or has in some other way so conducted or misconducted itself as to produce a glaring miscarriage of justice or has been tricked by the defence so as to produce a similar result. IN that case it was held as under: Sections 417 418 and 428 of the Code (Cr. P. C. 1898 give to the High Court full power to review at large the evidence upon which the order of acquittal was founded and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact the High Court should and will always give proper weight and consideration to such matters as- (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. The Supreme Court has adhered to this view in a case of Sanwat Singh and Others v. State of Rajasthan AIR 1961 SC 715 wherein it is observed as under:in an appeal against acquittal the appellate Court has full power to review the evidence upon which the order of acquittal is founded. The principles laid down in Sheo Swarups Case AIR 1934 PC 227 (2) afford a correct guide for the appellate courts approach to a case in disposing of such an appeal and the different phraseology used in the judgments of the Supreme Court such as (i) substantial and compelling reasons (ii) good and sufficient cogent reasons and (iii) strong reasons are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the Court below in support of its order of acquittal in its arriving at a conclusion on these facts but should also express those reasons in its judgment which lead it to hold that the acquittal was not justified. In another case Bhagwati and Others v. The State of Uttar Pradesh AIR 1976 SC 1449 it was observed by the Supreme Court as under:the power of an appellate Court to review evidence in appeals against acquittals is as extensive as its power in appeals against convictions. Before an appellate Court can set aside an order of acquittal it must carefully consider the reasons given by the trial Court in support of its decision and give its own reasons for rejecting them. If the finding reached by the trial Judge cannot be said to be unreasonable the appellate Court should not disturb it even if it were possible to reach a different conclusion on the basis of the material on the record because the trial Judge has the advantage of seeing and hearing the witnesses and the initial presumption of innocence in favour of the accused is not weakened by his acquittal. The appellate Court therefore should be slow in disturbing the finding of fact of the trial Court and if two views are reasonably possible of the evidence on the record it is not expected to interfere simply because it feels that it would have taken a different view if the case had been tried by itself ( 3 ) HAVING stated that law we are clearly of the opinion that if the view which the learned Sessions Judge took was a reasonable view or that it was a possible view we would not interfere with it. Bearing this principle in mind we have gone through the entire evidence on record and also the judgment rendered by the learned Addl. Sessions Judge Bhavnagar. The first witness who is of importance Mohmad Ala P. W. 1 father of the deceased and complainant in the case is examined at Exhibit 17. After stating as to what happened on the night of 19th and in the morning and during the day of 20th February 1979 he narrated the main incident which occurred on 21-2-1979 and according to him when his son Daud was going to Kesharbai Masjid at abubut 12. 30 noon he was on his pan shop. He stated that when his son Daud passed from near the shop he has just walked 10 or 12 paces and accused No. 3 ran after him with a dhoka so also accused No. 4. Accused No. 5 who was standing near pan shop of Issa Vira also went running there and gave a push to Daud. Daud fell down. Accused No. 2 also ran and stated that he may be killed. Accused No. 7 who was near the other shop went there though he had no weapon in his hand. He also stated that he should be killed. Thereafter accused No. 1 ran and according to the witness he went there in order to support them. At that time accused No. 1 took out a knife from his pocket and gave a knife blow to Daud on the right side back. Accused no. 6 was also present there with dhoka and at that time he gave blow with a dhoka on the left side head of the witness. He sat down. Thereafter accused ran away. He went near his son and found that he was dead and there was a pool of blood. Accused no. 6 was also present there with dhoka and at that time he gave blow with a dhoka on the left side head of the witness. He sat down. Thereafter accused ran away. He went near his son and found that he was dead and there was a pool of blood. Seeing that he fell down and at that time Ali Mohmad P. W. 4 came there and his son Gani also came there. He was ultimately removed to the Government hospital. According to him police came to him at about 2. 00 p. m. and his statement was recorded and that statement was complaint and his signature was taken. The complaint was shown to him. He admitted his signature and stated that the contents stated therein were correct. That complaint was marked A. In cross-examination he stated that as soon as he reached the hospital a policeman on duty came near him. He immediately altered this statement and stated that the policeman had not come near him. Thereafter he stated that in the hospital panchnama regarding injuries on his person was prepared. He has not stated in the panchnam as to who made that panchnama or at what time that panchnama was made. It was not asked in the cross-examination. Then the cross-examination was diverted towards the incident as he stated that he went to the hospital immediately after the incident and reached there at about 1. 00 p. m. and according to him half an hour thereafter injury panchnama was prepared and he stated that that panchnama was made by Jamadar. He stated that the panchnama was prepared in regard to the injury by a person who had come to record his complaint. Therefore the position which emerges from this cross-examination is that Jamadar recorded the complaint and. prepared panchnama in regard to the injury. It is thereafter nowhere asked in the cross-examination as to whether P. S. I. had come and recorded his complaint or prepared any panchnama. This would clearly mean that the witness was calling the P. S. I. to be a Jamadar. He denied the fact that police recorded his complaint at 4. 30 p. m. or 5. 00 p. m. He admitted that he did not name accused No. 7 in the complaint. Thereafter the residential addresses of the accsued were asked and they were correctly answered. He denied the fact that police recorded his complaint at 4. 30 p. m. or 5. 00 p. m. He admitted that he did not name accused No. 7 in the complaint. Thereafter the residential addresses of the accsued were asked and they were correctly answered. The cross-examination was thereafter diverted as to what happened on the night of 19th and thereafter immediately some contradictions were tried to be brought on record. The first three contradictions were in regard ot what happened on 19th and 20th. Thereafter the cross-examination was diverted as to of which wood the dhoka was prepared. Immediately thereafter it was asked that the muddamal dhokas were kept in order to see that the hand lories may not move away and he denied that suggestion. Thereafter it was asked that many persons had gathered there but the witness stated that the persons were passing on the road and they had gathered there. He admitted that on both the sides there were shops. He stated that certain shops were closed. Thereafter the cross-examination was in regard to the knife and the question put was whether the knife had a sheath or not. The witness stated that he was not in a position to say so. He was asked the description and measurement of the knife. The witness stated that he will not be in a position to describe the knife. He denied the suggestion that till the knife blow was given he was on his shop. He stated that after accused No. 5 gave a push and his son fell down he had got up. He denied the suggestion that his son had a knife with him. He also denied the suggestion that Daud had run with a knife to injure Sattar at 11. 00 a. m. on the date of the incident. He denied the further suggestion that on the day of the incident Daud had gone to injure Sattar-accused No. 1 with a knife and accused No. 1 tried to ward off the blow and at that time accused No. 1 was injured near the thumb and finger. He denied the suggestion that during that period someone from the crowd gave a knife blow on the back of Daud. He denied the suggestion that during that period someone from the crowd gave a knife blow on the back of Daud. Now in regard to this witness whose presence cannot be doubted at the scene of offence because of the injury on his own person for which he was admitted in the hospital and for which he was treated the arguments advanced in the trial Court were that the Police Jamadar has recorded his complaint and had prepared a panchnama and therefore the complaint recorded by the P. S. I. was inadmissible. The further argument was that the information given by the Doctor Gavasia Exhibit 43 was the F. I. R. and therefore the complainat recorded by the P. S. I. was not admissible in evidence. The learned Additional Sessions Judge accepted this argument. We may only say that the arguments advanced were totally unwarranted and were against the evidence on record. This witness never stated that the Jamadar recorded his complaint and thereafter P. S. I. recorded his complaint and that there were two complaints. He never stated that Jamadar prepared the panchnama in regard to his injury and P. S. I. also made another panchnama in that regard. He clearly stated that the person who recorded his complaint prepared the panchnama of his injury. Now he described the person to be Jamadar. If this circumstance was to be relied upon it was expected of the defence to call the P. S. I. and he should have been shown to the witness that it was not this gentleman but some other jamadar who recorded his complaint or at least question should have been put to-the witness that after the jamadar had recorded his complaint P. S. I. had also recorded his complaint. It was more than clear that this witness did not know the difference between the jamadar and the P. S. I. In the cross-examination he made it clear that it was only one person who recorded the complaint and it was that person alone who also prepared the panchnama in regard to the injury on his person. Now it was argued before the trial Court that the panchnama in regard to the injury was prepared prior to the complaint. That argument was against the record of the case. The panchnama is at Exhibit 14 and it was brought on record by consent of the parties. Now it was argued before the trial Court that the panchnama in regard to the injury was prepared prior to the complaint. That argument was against the record of the case. The panchnama is at Exhibit 14 and it was brought on record by consent of the parties. This panchnama was prepared at 3. 15 p. m. on 21-2-1979 and it is clear that the complaint was recorded at 2. 10 p. m. and not only that in the panchnama itself it is mentioned that this panchnama is made because of investigation of the crime of an offence which is registered at Crime Register No. 51/79 for offences under Sections 302 323 504 and 34 of the I. P. C. However it was lost sight of and the learned Addl. Sessions Judge was perhaps misled to believe that Exhibit 43 was the F. I. R. Mere look at the Station Diary entry shows that it did not show any cognizable offence. Bare reading of Section 154 of the Cr. P. C. would show that unless an information in regard to a cognizable offence is given to a police station officer orally or in writing that information is not an information as required by Section 134 of the Criminal Procedure Code. Therefore Exhibit 43 was not a F. I. R. under Section 154 Cr. P. C. as it did not disclose any cognizable offence. In Exhibit 43 it is stated that the P. S. I. was already there at the hospital. Now this entry was made at 2. 00 p. m. and the P. S. I. recorded the complaint at 2. 10 p. m. which in fact was received at the police station at 2. 20 p. m. meaning thereby that when Dr. Gavasia sent the message Sr. P. S. I. was not only present in the Hospital but was in the process of recording the complaint. Curiously enough forgetting all these aspects of the case an argument is advanced that his complaint was not required to be exhibited and the learned Sessions Judge accepted that argument without bothering about the argument advanced by the public prosecutor. The arguments noted by the learned Addl. Sessions Judge are at Exhibit 51 and the Public Prosecutor clearly stated that the telephonic message did not show that information of the cognizable offence was given. The arguments noted by the learned Addl. Sessions Judge are at Exhibit 51 and the Public Prosecutor clearly stated that the telephonic message did not show that information of the cognizable offence was given. It was also argued that the P. S. I. had recorded the complaint which was required to be exhibited. This argument was not even at all discussed by the learned Addl. Sessions Judge. Therefore he started abruptly on a wrong premises. Curiously enough we do not find anything in the judgment as to why this witness is not believed. The evidence is only reproduced in the judgment. In paragraph 57 the learned Addl. Sessions Judge after analysing all the witnesses stated that there were serious omissions and the witnesses were interested and he had no hesitation in coming to the conclusion that the prosecution had failed to prove the case against the accused persons beyond all reasonable doubt. Now we do not find in the whole judgment as to why father of the deceased who was admittedly present is disbelieved by the learned Addl. Sessions Judge. Can he be disbelieved on the mere ground that he is the father of the deceased? Is the presence of the father of the deceased at that particular place was not natural? If he was not present at that particular place how did he receive the injury ? It was more than clear that from the very place he was removed to the hospital. In the Hospital before he met any body the P. S. I. recorded his complaint. That complaint was not exhibited on the ground that some Jamadar recorded the complaint and prepared the panchnama regarding his injury and on another ground that Doctor gave information. That information was not in regard to a cognizable offence. Learned Advocate Mr. Barote appearing on behalf of the accused was fair enough to concede that it was not proper for the learned Addl. Sessions Judge not to exhibit the complaint. Now therefore it is more than clear that the learned Addl. Sessions Judge started on a wrong premise and he disbelieved the most important and natural eye-witness who was present at the scene of offence and therefore he has come to a wrong conclusion. Sessions Judge not to exhibit the complaint. Now therefore it is more than clear that the learned Addl. Sessions Judge started on a wrong premise and he disbelieved the most important and natural eye-witness who was present at the scene of offence and therefore he has come to a wrong conclusion. It is true that he named other accused per sons but it is equally true that he did not allege anything against any of the accused persons except that he stated that accused No. 5 had given a push. Now therefore the learned Addl. Sessions Judge came to a conclusion that there was not an unlawful assembly because all the accused persons had come from different directions and did not form an unlawful assembly in the sense that they had any common object and they did nothing to the deceased. It was for the first time that accused No. 1 abruptly came there took out a knife and gave a knife blow on the back of the deceased and there after when this witness-father of the deceased intervened accused No. 6 gave a dhoka blow on the head of the complainant and he fell down. Nothing is attributed against other accused persons. Merely because there was no unlawful assembly and there was no overt act attributed to other accused persons it would never mean that what is stated against accused No. 1 and accused No. 6 is required to be discarded on the ground that the charge of unlawful assembly was not proved against the other accused persons. It cannot be suggested for the moment that they were falsely implicated or involved. It may be because they were merely present and did nothing they were entitled to acquittal. That does not mean that the case put up by the complainant is false. A witness may here or there exaggerate something but it is the function of the Judge to separate the exaggeration from the truth and arrive at the right conclusion. The learned Addl. Sessions Judge mechanically for no reason whatsoever threw away the entire evidence on the ground that it appeared to him that there are some exaggerations made in the deposition. That approach would be an absolutely perverse approach to say the least. Under these circumstances we have to say that Mohmad Ala Exhibit 17 was a reliable and trustworthy witness and he is unnecessarily disbelieved. That approach would be an absolutely perverse approach to say the least. Under these circumstances we have to say that Mohmad Ala Exhibit 17 was a reliable and trustworthy witness and he is unnecessarily disbelieved. It is not as if two views were possible and by one view it is possible to believe him and by another view it is not possible to believe him. It is not the evidence of that nature. A person in a broad day-light sees with open eyes the whole incident; he goes there; intervenes; receives injury; gets himself admitted in the hospital and files complaint immediately. If such a person is disbelieved on the ground that he is the father of the deceased it will be unsafe for the society to exist. It is true that when a relative gives evidence his evidence requires a careful scrutiny. Careful scrutiny could never be equated with the corroboration. Relative is not an accomplice. There is nothing in the Evidence Act which requires that evidence of relatives requires corroboration. If that were so no offence could be proved. There could be cases where no one else except the relatives would be present. There could be cases where there would be persons like baniyas sitting in their shops and witnessing the incident but not coming out to give evidence. And when some body approaches them for recording their statements they might say that they were busy with the business and had not seen the incident. It is not the I case of the defence that the statements of other persons were recorded and they were not examined. It is not the case of the defence that any person named in the charge sheet is not examined. It is not suggested and can never be suggested that father of the deceased was not present. Now when this particular witness was present how could his evidence be brushed aside that he is the father of the deceased. That has resulted into miscarriage of justice. Under these circumstances we believe the evidence of the complainant. ( 4 ) NOW we go to another witness Alimahmad Hajibhai P. W. 4 Exhibit 26. He also narrated the incident and practically gave the same version as given by the P. W. 1 Mahmad Ala. That has resulted into miscarriage of justice. Under these circumstances we believe the evidence of the complainant. ( 4 ) NOW we go to another witness Alimahmad Hajibhai P. W. 4 Exhibit 26. He also narrated the incident and practically gave the same version as given by the P. W. 1 Mahmad Ala. He clearly stated in paragraph 8 of his deposition that his uncles complaint was recorded in the hospital by the P. S. I. Chandel. Now in cross-examination it was suggested to him that he was giving false evidence because he was a relative. He denied the suggestion that he was not present and he had not witnessed the incident. In para 19 a contradiction was asked and that contradiction was not proved and therefore that contradiction which was not admitted by the witness has no meaning. In his cross-examination he has stated that after accused No. 1 came there he immediately gave a knife blow and there was no other quarrel between them. Now contradiction was brought on record which the witness admitted and that contradiction was that he had not told to the police that accused No. 1 had taken out the knife from his right side pocket. The contradiction is not on the point as to whether he took out the knife or not. That was there but right side pocket was not there. That contradiction is no contradiction at all. At the highest it is an omission which is not material. Curiously enough what was argued before the learned Addl. Sessions Judge in regard to this witness is required to be stated. Learned Advocate for the defence argued before the learned Addl. Sessions Judge that the demeanour of the witness was such that his evidence was required to be discarded and it was further stated that the learned Advocate has filed a purshis to that effect Exhibit 27 and it was further stated that the witness gave a tutored version in a parrot-like manner. The learned Addl. Sessions Judge in regard to this argument observed as under:. . . . I had also an opportunity to mark the demeanour of the witness and the statement as made in the purshis cannot be said to be not a correct statement. The learned Addl. Sessions Judge in regard to this argument observed as under:. . . . I had also an opportunity to mark the demeanour of the witness and the statement as made in the purshis cannot be said to be not a correct statement. It is not clear to us as to why such an argument was advanced at all and as to how the learned Sessions Judge accepted this argument. The reason is that this statement of the learned Advocate and the learned Addl. Sessions Judge is not a correct statement if one looks at the record. The evidence of this witness is recorded at Exhibit 26. After the evidence of this witness was over on 21-11-1979 there is no endorsement of the learned Addl. Sessions Judge as regards the demeanour of the witness. It is true that the purshis Exhibit 27 is given by the learned Advocate. It was only stated that the witness had deposed on his own without any questions put to him by the Public Prosecutor and that fact was required to be noted. The learned Addl. Session Judge rejected that purshis and passed the following order:this pursis is not true and some questions were put and generally witness was asked. ??now therefore it is clear that the Public Prosecutor first of all asked introductory questions and thereafter went on asking him. . thereafter what?. . . there-after what ? This would mean that after putting introductory questions not a single leading question was put and the public prosecutor after putting introductory questions asked him thereafter what? thereafter what? This would mean that after every sentence this question was put. That was what the learned Addl. Sessions Judge ordered on the purshis and clearly stated that the purshis was not true. And yet he accepted the argument advanced by the learned Advocate for the defence which on the face of the record was not correct and which the learned Judge would have found that the argument advanced was baseless and that argument was already rejected by him on the day on which the evidence was recorded. This again is a grave error which is required to be corrected. The evidence of this witness cannot be thrown away on the ground that he is a relative. His evidence also cannot be thrown away on the ground that other persons were involved. This again is a grave error which is required to be corrected. The evidence of this witness cannot be thrown away on the ground that he is a relative. His evidence also cannot be thrown away on the ground that other persons were involved. He did not attribute anything to any other accused person except accused Nos. 1 and 6. He fully corroborated the story of the complainant which was fully corroborated by the complaint unfortunately marked A which could be considered to have been exhibited. ( 5 ) THE third witness is Bachuben Harjibhai P. W. 5 Exhibit 28. Now she is not a related witness. According to her when the incident took place she was at the house of her relative as there was a marriage of the son of Ramji and Ramji was son-in-law of her nephew. She saw the incident from the window of the house and described the incident in full so far as her examination-in-chief is concerned. In cross-examination she stated that she was sitting in the window from 8. 00 a. m onwards but she heard the shouts for the first time at 12. 45 p. m. She also stated that the window is a very big window and falls on the road. There were other persons as well. According to her many persons had gathered on the road. She denied the suggestion that she had exchange of words with accused Nos. 2 and 7 on the question that she was not vacating one room which was given to her. Now this witness is disbelieved on the ground that because she had quarrel with accused Nos. 2 and 7 her evidence was required to be discarded. Further her evidence is discarded because her statement was recorded on the 3rd day of the incident and she had not told any one till her statement was recorded by the police. What is required to be stated is that if she had some exchange of words with accused Nos. 2 and 7 it was hardly necessary for her to attribute a knife to accused No. 1 and dhoka to accused No. 6. What is required to be stated is that if she had some exchange of words with accused Nos. 2 and 7 it was hardly necessary for her to attribute a knife to accused No. 1 and dhoka to accused No. 6. It is true that her statement was recorded late but she was unconnected with the incident; she was busy at a place where there was marriage; she had no reason to approach the police because she very well knew that many persons had gathered and it was not necessary for a woman to inindulge in the affairs of other persons who had fought-belonging to a different community. It was perhaps the police had approached her and therefore she gave her statement. In fact if she would have been the only witness in the case we can understand that on a solitary evidence of one witness whose statement was recorded after three days of the incident conviction in a murder case cannot be based. But she was not a solitary witness. There were other two witnesses one was injured and other was very much present. The evidence of these two witnesses was sufficient. This witness only corroborated the story and she was an independent witness. There was no good reason to throw away the evidence though it may be that her evidence alone would not have been sufficient. ( 6 ) IN regard to the evidence of Rahim Mahmad P. W. 6 Exhibit 29 we may only say that we have gone through the evidence of this witness and we are not inclined to give any importance to the evidence of this witness. He had answered the questions drawing upon his imagination and perhaps he did not see the whole incident at all and he thought that he was bound to answer all the questions and he went on imagining things and answered them. His evidence does not inspire any confidence. If the learned Addl. Sessions Judge rejected evidence of this witness he was right. ( 7 ) IN regard to witnesses Abdul Valli P. W. 7 Exhibit 30 and Nathalal Khimji P. W. 8 Exhibit 31 they did not support the prosecution and the learned Public Prosecutor did not attach any importance to the evidence of these two witnesses. ( 8 ) THAT brings us to the evidence of Mohmad Kakaria Badshah P. W. 9 Exhibit 32. ( 8 ) THAT brings us to the evidence of Mohmad Kakaria Badshah P. W. 9 Exhibit 32. This witness has not seen the incident. He was deposing in regard to the enmity etc. He believed himself to be a Social Worker. He went at the scene of offence at his own instance and he deposed that it was at his instance that Mohmad Ala was removed to the hospital. Having read the evidence of this witness it is clear that he is giving more importance to himself. He is presenting as if it was he who bothered to take Mohmad Ala to the hospital otherwise he would not have gone to the hospital. Such a credit if he wants to take it neither helps the prosecution nor the defence. ( 9 ) THAT takes us to the medical evidence. Dr. Dilip Amritlal Vyas P. W. 2 Exhibit 20 proved the injury on accused No. 6. He had examined him on 21 at 7. 45 p. m. and had only found tenderness over right first metacarpal. According to the Medical Officer this may be due to contact with hard and blunt object like a stick. The injury was minor. In cross-examination he clarified that by tenderness he meant pain due to pressure. The colour was not found reddish at that place. This would mean that there was no visible injury and if the medical officer applied pressure at that particular place the accused stated that he was getting pain. That may be true or false so far as the statement of the accused is concerned. The fact remains that he complained of pain but no visible injury was found and at a place where the doctor applied pressure the complaint accused complained of pain. That was the situation when the medical officer examined accused No. 6. Dr. M. T. Bhatt P. W. 10 Exhibit 34 preferred the post mortem examination on the dead body of deceased Daud Mahmadbhai Dead body of Daud was brought by Police Constable Sahdevsinh Jitubhai; Buckle No. 756 at about 2. 55 p. m. The Medical Officer commenced post mortem examination on the same day at 4. 00 p. m. and commenced it at 5. 55 p. m. The Medical Officer commenced post mortem examination on the same day at 4. 00 p. m. and commenced it at 5. 00 p. m. He found the following injuries on the person of Daud on external examination:1 An incised wound 2 1/2 x 1 cavity deep on the right side back near the angle of scapula and 12 to the right fide of the mid-line. 2 An incised wound 1/4 x 1/6 x 1/6 on the outer part of the proximal phalanx of the left little finger. The following injuries were found on internal examination:1 Right side thorasic cavity was full of blood. 2 There was a cut in the interspace between the 8 and 9th ribs. 3 Ploura was cut on the right side. 4 Pericardium was cut at the upper part. 5 Incised wound 1/2 x 1/3 cavity deep on the right auricle of the heart. 6 A cut 1/2 in length on the aorta just above the heart. According to the Medical Officer 39 the above injuries correspond to external injury No. 1. External injury No. 2 is a minor injury. According to the Medical Officer the cause of death was shock due to the injury to the aorta heart and haemorrhage. External inquiry No. 1 and corresponding internal injuries were sufficient in the ordinary course of nature to cause death. According to the Medical Officer the said injuries are likely to be caused by a sharp cutting weapon like a knife muddamal article No. 9. The post mortem notes are produced at Exhibit 35. It may hereby stated that so far as Mohmad Ala is concerned he was examined by Dr. Avasia but he could not be examined in the Court as according to this Medical Officer he was on leave since long and his whereabouts were not known. In the cross-examination the Medical Officer agreed that external injury No. 1 and the corresponding internal injuries can be caused if the assailant is in a bent position while the victim is in a standing and erect position This cross-examination rather helping. the accused helps the prosecution. In the cross-examination the Medical Officer agreed that external injury No. 1 and the corresponding internal injuries can be caused if the assailant is in a bent position while the victim is in a standing and erect position This cross-examination rather helping. the accused helps the prosecution. It is further asked in the cross-examination and the Medical Officer agreed that it is more possible that two blows by means of a knife are likely to be required from the same opening of the wound in order to result the injuries as found in the present case namely on both 8th and 9th ribs the cut of pleura and the out of the right auricle. This cross-examination would completely finish the accused if the prosecution case was that two injuries were given at the same place and second injury was given through the first cut. Accused must thank himself that the prosecution case is not of that type otherwise he would have been easily convicted for an offence under Section 302 I. P. C. ( 10 ) FROM the panchnama Exhibit it is clear that accused No. 1 had an injury near his right thumb and at the time of his arrest there was a bandage at that place. However the prosecuting agency did not send him for medical examination and therefore it is not clear as to what type of injury he had near his thumb. However in cross-examination it was suggested that it was the deceased who had caused him injury at that particular place by a knife and that was caused to him when he was trying to ward off a blow to him. That position was however denied. However the suggestion of the defence was that at that particular point of time some one who was not identified caused injury to the deceased and gave him a fatal blow. That part of the story can never be accepted. Now the learned Advocate Mr. Barot mainly submitted that the prosecution has not explained the injury to accused No. 1 and therefore prosecution must fail. No one has tried to explain away injury of accused No. 1 except that there is a suggestion in the cross-examination which is denied. The injury was first noticed on accused No. 1 when he was arrested. Barot mainly submitted that the prosecution has not explained the injury to accused No. 1 and therefore prosecution must fail. No one has tried to explain away injury of accused No. 1 except that there is a suggestion in the cross-examination which is denied. The injury was first noticed on accused No. 1 when he was arrested. That in fact was not fully noticed because no care was taken to see that injury by removing the bandage. In fact one can say that an investigating officer should have taken care should have taken out the bandage noted the injury and sent the person for medical examination. That would have cleared the whole situation. But if the P. S. I. failed in his duty one cannot jump to the conclusion that that was the injury which was caused at the time of the incident and that it was seen by the prosecution witnesses and that therefore they were bound to explain that injury and if they do not explain that injury their evidence should be out right rejected. Such a suggestion would never arise out of a sheer minor mistake committed by an investigating officer in given case. It cannot be denied that the accused No. I gave a fatal blow-a blow with a knife-though on the back portion but with such a great force that it penetrated and resulted in an injury to pericardium plura and auricle of the heart. If a blow is given by a knife with such a great force both knowledge and intention could be attributed to the person who caused that injury. A man is normally responsible for the act he does unless the act is unintentional or accidental. In normal course he was required to be convicted for an offence under Section 302 of the I. P. C. The argument that the prosecution witnesses are only relatives does not carry much value. The question before the Court is not as to whether other witnesses were or were not available. The question before the Court is whether the persons examined before the Court are reliable and trustworthy or whether they are witnesses who could be relied upon for the purpose of deciding the case. It is not that other persons had seen the incident their statements were recorded or that they were named in the charge-sheet. The question before the Court is whether the persons examined before the Court are reliable and trustworthy or whether they are witnesses who could be relied upon for the purpose of deciding the case. It is not that other persons had seen the incident their statements were recorded or that they were named in the charge-sheet. It is common experience that people do not bother as to what is happening just by their side. They are not willing normally to witness anything lest they will be called as witnesses. They are not willing to say that they were witnessing the incident. It is not as if that they were willing to tell about the incident and the police recorded their statements one way or the other and thereafter did not examine them. In that case the case is required to be looked into from a different angle. Here the witnesses are persons who were naturally present at that particular place. At the best one can say that they are relatives. Therefore please scrutinise their evidence with care. One can never say that look for corroboration. That is to be doneonly when they are accomplices. Now therefore having carefully gone through their eviddnce the presence of Mohmad Ala is most natural. He is the person who was injured at that very place. He was removed from that very place to the hospital immdiately his complaint was recorded; his evidence is natural fully corroborated by the complaint which he immediately filed. There is no reason to disbelieve him. Therefore to suggest that there were so many shops open is to suggest nothing. Thereafter suggestion is made that other persons were falsely involved. It cannot be suggested that the persons involved in the incident were falsely involved merely because they were acquitted. Persons could be acquitted because the case could not be proved beyond all reasonable doubts. The Evidence Act recognises three terms proved not proved and disproved. When the case is not proved it cannot be suggested that it is false. When a case is disbelieved it could be so suggested. It is nowhere suggested while acquitting these people that the evidence was tempered with or that it was false. It may be that the evidence was not sufficient against them. When the case is not proved it cannot be suggested that it is false. When a case is disbelieved it could be so suggested. It is nowhere suggested while acquitting these people that the evidence was tempered with or that it was false. It may be that the evidence was not sufficient against them. Therefore the suggestion that other persons are acquitted and therefore either the evidence was unworthy or that they were falsely implicated is not a suggestion which can be easily accepted. The question is whether accused Nos. 1 and 6 are guilty or not. The position is simple. The incident occurred abruptly. There is no question of common intention. Each individual acted on his own and he is required to be dealt with accordingly. He is to be punished for the act which he did and not for the act which some body else who was present there did. Accused No. 1 would be guilty for what he did and accused No. 6 would be guilty for what he did. The question therefore required to be considered first is for what offence accused No. 1 is required to be convicted. If the prosecution case was in line with the defence as suggested to the medical officer there was no escape but to convict accused No. 1 for an offence under Section 302 I. P. C. but the prosecution case is that the accused No. 1 gave only one blow. That was given with a knife. That was given with great force but one cannot agree that that was chosen part because the incident happened suddenly. There was some quarrel. In a quarrel parties do not remain static they move and while the parties are moving the blow cannot be aimed at a particular place. There-fore it cannot be suggested that the place was chosen. The prosecution case is that there was a small quarrel and exchange of words and enmity. It happened abruptly. Accused ran with a knife and during that scuffle the accused and the deceased were moving and a blow was given which blow fortunately or unfortunately was given at a particular place though force was intended otherwise without intending force knife cannot be used but the place chosen may not be there because both the persons were in a moving position. Perhaps the blow would have fallen at a different place the man would not have died. Under these circumstances we would not convict accused No. 1 for an offence of murder but we would convict him for an offence of culpable homicide not amounting to murder under Section 304 Part II I. P. C. Considering learned Advocate Shri Barot has kept the accused present in Court and therefore he is heard on sentence. He stated that he is a young man with family and lenient view may be taken. Considering the age of the accused which is 28 years and other circumstances of the case and particularly the force with which the injury was given we would go by the case of Jagtar Singh v. State of Punjab (1983) 2 Supreme Court cases 342 That-was a case where one blow with knife was given which went inside the chest. The injury was sufficient in the ordinary course of nature to cause death. It was case of a sudden quarrel and the accused came to be convicted for an offence under Section 304 Part II of the I. P. C. and was sentenced to suffer Five Years R. I. Therefore in the present case also after convicting the accused No. 1 for an offence under Section 304 Part II of the I. P. C. we sentence him to suffer R. I. for five years. ( 11 ) SO far as accused No. 6 is concerned his only offence is that he gave a blow with a dhoka to Mohmad Ala and thus committed an offence under Section 323 I. P. C. for causing simple hurt to him. He remained in jail for sufficient period and he had to undergo a trial and again he had to face this appeal. We feeel that no sentence is now required to be inflicted upon him and whatever sentence he has undergone would be sufficient to meet the ends of justice. Therefore accused No. 6 is awarded sentence already undergone by him. ( 12 ) UNDER these circumstances the appeal of the State is partly allowed. Accused No. 1 is convicted for an or fence under Section 304 Part II I. P. C. and is sentenced to suffer R. I. for five years. Therefore accused No. 6 is awarded sentence already undergone by him. ( 12 ) UNDER these circumstances the appeal of the State is partly allowed. Accused No. 1 is convicted for an or fence under Section 304 Part II I. P. C. and is sentenced to suffer R. I. for five years. Accused No. 6 is convicted for an offence under Section 323 and is sentenced to suffer for the period already undergone by him. Accused No. 6 is ordered to be released forthwith if not required in connection with some other offence. His bail bond is cancelled. Accused No. 1 is given four weeks time to surrender. Appeal allowed. .