S. L. TALATI, J. ( 1 ) THE State by this appeal challenges the acquittal order passed in favour of the respondent for an offence punishable under sec. 302 of the Indian Penal Code rendered by the Additional Sessions Judge Rajkot at Gondal in Sessions Case No. 31 of 1979 on 30 The short facts which gave rise to this appeal may be stated as under: ( 2 ) 2 One Vashram Meghji had gone to answer the call of nature in the morning on 18-9-1979. He was the resident of village Nani Parbadi which is near Rajkot. While he was returning after answering the call of nature he was attacked by the accused with a knife. There is a motive alleged and the motive alleged is that there was some dispute between the deceased and the accused. According to the prosecution this incident was witnessed by three persons viz. P. W. 2 Vallabhdas exh. 10 P. W. 3 Lakha exh. 11 and P. W. 12 Kalaben exh. 32. According to the prosecution because of the attack by knife ultimately Vashram Meghji fell down somewhere on the road near the house of Bavanji Nanji. From that place he was removed to Dhoraji Hospital where he was examined by Dr. Rayani who found him dead. From hospital message was sent which is recorded by P. S. O. at 7-30 A. M. and the message received was that the dead body of one Vashram Meghji was brought to the hospital who had expired because of injuries during struggle. That information is recorded by P. S. O. at exh. 20. Immediately information was conveyed to Police Sub-Inspector and the P. S. I. Dhananjay Rajnikant exh. 37 proceeded to Dhoraji Hospital and prepared the inquest Panchnama on the dead body of Vashram Meghji and thereafter registered the offence at the Police Station at 9-30 A. M. He thereafter prepared a panchnama of the place of scene of offence and from that place he attached one tin shoes watch and blood-stained earth. The accused was arrested at 3-30 P. M. and thereafter recovery panchnama was prepared and one knife was attached The statements of witnesses were recorded on 19-9-1979 and 20-9-1979 and the clothes of the deceased and the blood-stained earth were sent to Forensic Laboratory for examination and report. Ultimately after completing the investigation charge-sheet was submitted against the accused-persons. The accused was arrested at 3-30 P. M. and thereafter recovery panchnama was prepared and one knife was attached The statements of witnesses were recorded on 19-9-1979 and 20-9-1979 and the clothes of the deceased and the blood-stained earth were sent to Forensic Laboratory for examination and report. Ultimately after completing the investigation charge-sheet was submitted against the accused-persons. In due course the case came to be committed to the Court of Sessions where the prosecution examined 12 witnesses. The accused denied the guilt and he did not lead any defence. The learned Additional Sessions Judge Rajkot at Gondal for the reasons stated in the judgment acquitted the accused. That acquittal is now challenged by the State by filing this appeal. ( 3 ) 3 The learned Public Prosecutor Shri Bhatt read before us the evidence of P. W. 5 Kaliben exh. 13 and also the evidence of the three eye witnesses and thereafter took us through the evidence of the Medical Officer and the Circle Inspector and the panch witnesses and submitted that the evidence was overwhelming and in itself so complete that no other conclusion was possible. In order to appreciate the above submissions we went through the evidence. and it appears from the evidence that P. W. 5 Kaliben exh. 13 established that on the relevent date her husband had gone in the morning to answer call of nature and thereafter she heard cries raised by her relatives and Vallabh and she found that her husband was lying near the house of Bavanji. Now it may here be stated that one Meghji had three sons Vashram Balu and Lakha. Kaliben is the widow of Vashram who died Vashram has a son by name Kala and Lakha has a son by name Vallabh. Kaliben (P. W. 5) is examined in the trial court only to establish that her husband had gone on the relevant date in the morning to answer call of nature and thereafter she heard cries and when she went she found that her husband was lying near Bavanjis place. Three eye witnesses are Lakha the brother of the deceased Vallabh (P. W. 2) son of Lakha and (P. W. 10) Kala son of the deceased. In order to appreciate the evidence of these eye witnesses it will be necessary first to refer to the evidence of the Circle Inspector Kiritkumar (P. W. 1) exh. 8. Three eye witnesses are Lakha the brother of the deceased Vallabh (P. W. 2) son of Lakha and (P. W. 10) Kala son of the deceased. In order to appreciate the evidence of these eye witnesses it will be necessary first to refer to the evidence of the Circle Inspector Kiritkumar (P. W. 1) exh. 8. Ho prepared the map which is produced at exh. 9. Now it may be stated that to the extreme south on the eastern side there is a house of one Bachu Valera. To the north of that house is house known as old-gate which is in charge of the panchayat. Thereafter there is a house of Lakha Meghji and on one of the parts of the house of Lakha Meghji there is first floor. Thereafter there is a house of Balu Meghji. To the west of these houses there is a road. That road is from south to north. After one crosses the road on the western side just opposite the house of Lakha Meghji and old gate there is a house of Amba Vira. In the same way after crossing the road just opposite the house of Balu Meghji there is a house of the Hirji and one Padma. The road further proceeds to the north but near the house of Balu Meghji one can take the turn to the east and at that place the house of Bavanji Nanji is situated. If one proceeds further to the east arid then goes to the south one would reach the house of the deceased Vashram Meghji. There are two electric poles on the south-north road and according to the Circle Inspector exh. 8 is just on the road near the corner of Lakha Meghjis house and another is just near the place where one has to take turn while going from south to north in eastern direction. The first floor is at height of 20 St. from the ground so far as house of Lakha Meghji is concerned. To the west of that room on the first floor there are two windows and one door and there are three windows on another side and one window on the northern side. Now according to the prosecution case at that place P. W. 10 Kala was sleeping before night of the incident. He is a student studying S. Y. B. Com. Now according to the prosecution case at that place P. W. 10 Kala was sleeping before night of the incident. He is a student studying S. Y. B. Com. and he is studying in the college at Junagadh For the purpose of going to Junagadh from Parbadi he had to go to Chowki Railway Station and the train from Chowki Railway Station leaves for Junagadh at 7-0 A. M every day and he would get up in the morning so as to reach Chowki Railway Station and catch train at 7-0 A. M. and for that purpose he will have to start from his place at about 6 30 A. M. This witness is son of the deceased and he stated that he and Vallabh (P. W. 2) were sleeping on the first floor and in the morning at about 6-0 A. M. he heard the cries of his father save. . . save. . . According to him he heard the cries from the western direction. He stated that he and Vallabh got up and saw from windows on the western side and they witnessed that the accused Ramku was giving blows to his father by a knife and the blows were being given on the chest and according to this witness this incident happened just opposite the house of Amba Vira. According to him his father ran towards his house and his father was raising the cry save. . save and according to him he and Vallabh got down in the eastern direction and came on the road and at that time saw accused Ramku Alegbhai running with a knife. He stated that he saw him just near his house and he knew him for the last 10-12 years. He went to the place where his father was lying near Bavanjis house and found that his father was lying at the place and on questioning his father stated that Ramku had given a knife blow to him. According to the witness his uncle Lakhabhai Vallabh and his mother was present. Vashram was removed to his house and believing that he was alive a taxi was called for from Dhoraji and Vashram was removed in that taxi to Dhoraji Government Hospital where the Medical Officer examined Vashram and declared him dead. According to the witness his uncle Lakhabhai Vallabh and his mother was present. Vashram was removed to his house and believing that he was alive a taxi was called for from Dhoraji and Vashram was removed in that taxi to Dhoraji Government Hospital where the Medical Officer examined Vashram and declared him dead. According to the witness the Medical Officer called the Police and after preparing the inquest panchnama his complaint was recorded and thereafter Police Officer was shown the place of the offence and the panchnama was prepared. The witness also stated that his father was done to death by Ramku because of old enmity. In cross-examination the witness also stated that he had no personal knowledge regarding the old enmity. He also stated that he had seen the tin lying on the road so also the shoes and a watch. He admitted that he did not tell the police when his complaint was recorded that he had seen the tin the watch and the shoes on the road. According to him he and Vallabh did not raise any cries and he stated that when he reach d the place where his father was lying Lakha reached ahead. He stated that he did not tell his uncle Lakha that he had witnessed the incident from the first floor. According to him his uncle told him that Ramku had given a blow. According to him thereafter he asked his father as to what had happened and he was told as above. He also stated that so soon he reached near Bavanjis deli he hid asked his father and his father had told that Ramku had given him a knife blow. Thereafter denials are taken. The witness stated that the name of the accused is Ram Aleg and is also known as Ramku Aleg and that his father had told him that Ramku had given knife blow According to him he was the only person who had asked. He denied the suggestion that after P. S. I. came to Parbadi the whole thing was concocted. The witness stated that the name of the accused is Ram Aleg and is also known as Ramku Aleg and that his father had told him that Ramku had given knife blow According to him he was the only person who had asked. He denied the suggestion that after P. S. I. came to Parbadi the whole thing was concocted. In cross-examination the witness further stated that on the morning of the incident he got up at 5-45 A. M. and was collecting his books and according to him if the incident had not occurred he would have reached his house at 6 A. M. He stated that on the morning of the incident he had got up from bed and he heard the cries. He admitted that in his complaint he stated that on hearing the cries he had woke up. He denied the suggestion that the story that he was sleeping on the first floor was concocted. He also denied the suggestion that the shoes and the tin were planted on the road. ( 4 ) 4 The second eye witness is P. W. 2 Vallabhdas exh. 10. He is aged 22 and he is a companion witness as according to him he was also on the first floor with Kalabhai in the morning. According to him Kala used to sleep at that place for the purpose of reading. He stated that his father Lakha used to sleep on the ground floor. Thereafter he described the doors and windows of the house and he stated that on hearing the cries save. . . save. . . he got up and he saw from the window on the western side which is little to the north and found that Vashram was being beaten by the accused with knife. He stated that he and Kala both saw the incident and they both got down and went towards the house of Vashram and at that time they saw the accused running away with a knife. Thereafter they went to the place where Vashram was lying near the house of Bavanji and Lakha had also by that time come there and on questioning by Kala Vashram stated that Kathi Ramku gave a knife blow. According to him thereafter many persons had come. Vashram was profusely bleeding. Thereafter they went to the place where Vashram was lying near the house of Bavanji and Lakha had also by that time come there and on questioning by Kala Vashram stated that Kathi Ramku gave a knife blow. According to him thereafter many persons had come. Vashram was profusely bleeding. He was removed to his house and thereafter ultimately he was taken to Dhoraji in a taxi where the Medical Officer declared him dead. According to him he knew the accused from his childhood. He stated that father of the accused was doing agricultural work and there was illwill between Vashram and Ramku on the question of land. In cross-examination the witness stated that Kalabhai in the morning used to walk down upto Chowki Railway Station and that Kala used to read at this particular place for the last 4-5 years. He admitted that there was no one at his house to read with Kala. He also admitted that there is another student in the same village with Kala and he is of their caste but not a relative and he used to read at his house. He described the house saying that on the ground floor there are two rooms kitchen and Osri and on the first floor there was a dela. He denied the suggestion that Medha i. e. first floor was not at all used. In his cross-examination he also stated that when they got down Vashram was not lying at the place where he was being beaten but he was lying near the house of Bavanji and at that time the accused was seen running from near the house of Vashram Meghji. According to him all the three together had not asked Vashram but Kala had asked as to what was the reason of all that had happened and Vashram stated that Ram gave a knife blow. He was contradicted by his police statement to show that though he had stated that he saw the accused running away he had not seen him running away with knife. He admitted that if the incident occurred near the house of Bavanji he would not be able to see it from his Medha. ( 5 ) 5 The third eye witness is lakha Meghji. the brother of the deceased. He is examined as P. W. 3 exh. 11. He admitted that if the incident occurred near the house of Bavanji he would not be able to see it from his Medha. ( 5 ) 5 The third eye witness is lakha Meghji. the brother of the deceased. He is examined as P. W. 3 exh. 11. According to this witness there was illwill between the accused and the deceased for the last ten years. There was a case filed before few years against them and they were acquitted. According to him the agricultural land of the accused was adjacent to the field of Vashram and there were chapter cases also between themselves. In regard to the incident he stated that Kala and Vallabh used to sleep on the first floor and Kala used to read. According to him he heard the cries save. . . save. . . which were raised by Vashram and he opened the door and he saw that Ram Aleg was giving knife blows to Vashram. They were being given on the chest back portion and therefore he proceeded towards that place and Vashram was walking fast ultimately he fell down near the house of Bavanji and at that time he had seen Ram Aleg running away towards east from near the house of Vashram Meghji. Immediately thereafter according to him Kala and Vallabh had also come there and according to him each one of them by turn asked as to what had happened and that was done with a view to get more information and Vashram could only say that Ram gave him blows with knife. Thereafter he was removed to his house and ultimately in a taxi to Dhoraji where Medical Officer declared him dead. In cross-examination the witness stated that the cases between the parties were conducted before about 10 or 12 years He also stated that thereafter there was a case before about 8 years also but the leaders of the village got the case compromised. According to him Ramku had a residential house in Parbadi and he occasionally used to come to Parbadi. He also stated that at the time of the incident repairing work of the house of Ramku was going on and he had come perhaps for that. After asking this he was asked in cross-examination as to whether he stated this particular fact to the police and he stated that he did not say so. He also stated that at the time of the incident repairing work of the house of Ramku was going on and he had come perhaps for that. After asking this he was asked in cross-examination as to whether he stated this particular fact to the police and he stated that he did not say so. According to him as soon as he heard the cries save. . . save. . he recognised the voice of Vashram and immediately thereafter he went out and so the accused inflicted blows on Vashram. According to him as soon as he came out the accused tried to run away. He stated that he had no idea if any blood was lying on the road which leads to the house of Bavanji but according to hitch he had seen the blood near his shop and also near the house of one Hirji Padma and also near the house of Bavanji. According to him at the other places she saw the blood lying. In his cross-examination he stated that he first saw blood stains near the house of Bavanji and when he was returning to his house he saw blood stains on the road between the house of Hirji Padma and Balu Meghji. ( 6 ) 6 Now the learned Additional Sessions Judge disbelieved these three eye witnesses and the reasons are given by him in paragraphs 8 and 9. The first reason given is that in the complaint it was not stated by the complainant that he had seen a watch tin and shoes on the road. Therefore according to the learned Additional Sessions Judge it created a doubt as to whether the witness actually saw the shoes tin and watch from his windows. The learned Additional Sessions Judge then observed that Vallabh had not seen from the window the watch the shoes and the tin. Another contradiction which the learned Additional Sessions Judge found was that while the complainant stated that they did not raise any cries Vallabh stated that they had raised the cries. The learned Additional Sessions Judge then observed that Vallabh had not seen from the window the watch the shoes and the tin. Another contradiction which the learned Additional Sessions Judge found was that while the complainant stated that they did not raise any cries Vallabh stated that they had raised the cries. The learned Additional Sessions Judge observed that when three eye witnesses had seen the occurrence it was hardly necessary for them or any one of them to have asked Vashram as to what had happened and the learned Additional Sessions Judge then came to the conclusion that when they say that they asked Vashram regarding the incident it would mean that they had not seen the incident. The learned Additional Sessions Judge also remarked that there was a contradiction in regard to who asked Vashram and it was found that one person stated that he alone had asked while another stated that each one of them had asked by turn. From these contradictions the learned Additional Sessions Judge came to the conclusion that there were two probabilities and according to him one probability was that the three witnesses saw the incident and another was that they did not see the incident and therefore if according to the learned Additional Sessions Judge there were two probabilities which could be gathered from the evidence the probability which is in favour of the accused must be chosen. This is how he learned Additional Sessions Judge discarded the evidence of the three eye witnesses. ( 7 ) 7 The learned Advocate Shri Vyas who appeared on behalf of the defence supported the judgment rendered by the learned Additional Sessions Judge and further stated that the witnesses tried to change the place of scene of offence and he tried to suggest that though the witnesses stated the Vashram was attacked near the house of Amba Vira the blood was found at some distance from that place to the northern side and that therefore if the incident occurred at the place where the blood was found it was impossible for the witnesses to have seen the incident. The learned Advocate Shri Vyas submitted that the conduct of the eye witnesses who are relatives was not consistent in the sense that they did not raise any cries when they saw the incident and that they did not question Vashram. The learned Advocate Shri Vyas submitted that the conduct of the eye witnesses who are relatives was not consistent in the sense that they did not raise any cries when they saw the incident and that they did not question Vashram. Thereafter the evidence of Kala was criticised on the ground that he had no reason to read on the first floor of Lakha when Vallabh who was to sleep at that place was not at all interested in reading because he was not a student. He criticised his evidence that if he wanted to read he could have read at his house where also there is electric light or at the house of some other student who was studying with him but he had no reason to go to the first floor of Lakha and read at that place. Another thing suggested to us was that in the First Information Report which was recorded by P. S. O. the name of the accused was not stated. That was the information conveyed to P. S. O. by the Medical Officer which was recorded in the police station diary. Our attention was drawn to the panchnama of the scene of offence where it was shown to us that no blood was found near the place of Amba Vira and therefore the incident did not occur at that place and that the prosecution witnesses were trying to change the place of the scene of occurrence. It was also submitted that the panch who is examined to prove the panchnama of the place or scene of offence is the person belonging to the caste of the eye witnesses and another panch who was tailor and who belong to a different caste was not examined though present in court and therefore the panch witness in regard to the panchnama of the scene of offence should not be believed. With these submissions the learned Advocate Shri Vyas submitted that in an appeal against acquittal no interference was called for when the learned Additional Sessions Judge on appreciation of evidence or the eye witnesses rejected the testimony and more so because he had an opportunity to see them in the witness box. With these submissions the learned Advocate Shri Vyas submitted that in an appeal against acquittal no interference was called for when the learned Additional Sessions Judge on appreciation of evidence or the eye witnesses rejected the testimony and more so because he had an opportunity to see them in the witness box. Having considered the views expressed in the judgment and also the arguments advanced by the learned Advocate Shri Vyas for the defence it is not possible for us to appreciate the evidence in the manner in which it is either done by the learned Additional Sessions Judge or suggested by the learned Advocate Shri Vyas. It appears to us that glaring things are overlooked. We are conscious of the principles laid down by the Privy Council in the case of SHEO SWARUP and ORS. V. KING EMPEROR REPORTED IN A. I. R. 1934 PRIVY COUNCIL AT PAGE 227 and these principles are reiterated by the Supreme Court thereafter in various rulings and that remains the law till this date. Bearing in mind the above principles if we reappreciate the evidence of the three eye witnesses it is more than clear that Kala P. W. 10 and Vallabh P. W. 2 definitely saw the incident with their own eyes. It is noteworthy to see that in this particular case the prosecution tried to bring the evidence which was absolutely natural Nothing is tried to be added. The investigation to that extent is absolutely honest and reliable. P. W. 5 Kaliben only established that her husband had gone to answer the call of nature and she having heard the cries of Vallabh and other relatives went to the place where her husband was lying in a pool of blood near the house of Bavanji. Hirji exh. 16 had a house on the same road. He is a caste fellow but he is only a panch in regard to the place of the scene of offence. He did not pose to be an eye witness. He was admittedly present at his house as brought out in cross-examination. Now that therefore it becomes clear that Vashram had gone in the early morning to answer the call of nature. This is absolutely natural. He did not pose to be an eye witness. He was admittedly present at his house as brought out in cross-examination. Now that therefore it becomes clear that Vashram had gone in the early morning to answer the call of nature. This is absolutely natural. Thereafter he is found lying in a pool of blood near Bavanjis house and according to two eye witnesses Vallabh and Kala they had seen that Ramku Aleg was inflicting blows with knife somewhere near the house of Amba Vira. Now from that place Vashram ran. This fact can easily be corroborated by the panchnama of the place of scene of offence. One tin was lying on the road the shoes were lying on the road watch was lying on the road. This would show that the person who had gone to answer the can of nature was returning with an empty tin and when he was attacked the tin fell down. Thereafter as he ran the shoes also came out the watch also fell down. So far as the tin and the shoes are concerned they belonged to the deceased. They are identified to be as such. It is not clear as to whom the watch belonged to it might be of the deceased or may be of the accused. The earth was collected from the road from near the place where the house of Hirji Padma and Balu Meghji are situated. The houses are opposite each other. The defence suggestion was that if it is believed that Vashram was attacked on the road between the houses of Balu Meghji and Hirji Padma the three eye witnesses could not have witnessed the incident. It is clearly forgotten that merely because the blood is lying at that particular place it cannot be assumed that the attack started at that place. It is cleanly also forgotten that the tin and the shoes were lying far beyond that place to the south where attack had begun. So soon as a knife blow is given to a person who is running it is not expected that the blood would come out immediately on the ground at that very place where the knife blow is given. Normally when the blow is given so soon as the blood comes out to begin with the clothes will be soaked with the blood. Normally when the blow is given so soon as the blood comes out to begin with the clothes will be soaked with the blood. As more and more blood would be coming out ultimately the blood would also fall on the ground. In all cases it cannot be expected that the blood must fall on the ground so soon as the first blow is given and at the very place where the first blow is given. Now that therefore a young boy who was reading for S. Y. B. Com. and who had to get up early to catch the train at Chowki Railway Station at about 7-0 A. M. in the morning it is but natural that he would awake in any case before 6 A. M. and therefore he would be able to run so soon as he hears the cries. It is suggested that he should have gone on the western direction where Vashram was being attacked. It is here again forgotten that Vashram was running for his life and the accused was following him and Vashram would naturally run towards his house and the house of Vashram is situated to the east and therefore if the two witnesses thought that it would be better to go to the east so that they would be able to reach their father and that is exactly what happened. They went towards eastern direction and they saw the accused running away and they saw Vashram lying in a pool of blood near Bavanjis house. That would mean that so soon as Vashram fell down near Bavanjis house the accused ran away. The learned Advocate Shri Vyas submitted that the two persons allowed the accused to run away and did not try to catch him. It is very easy to argue and suggest what the two witnesses should have done but it is difficult and perhaps impossible to catch a person who has committed murder and who is running away with a knife. If the two persons who see the incident with their own eyes do not care to catch the accused and immediately reach the place where Vashram is lying in a pool of blood it cannot be suggested that they did not see anything and they did not reach the place. If the two persons who see the incident with their own eyes do not care to catch the accused and immediately reach the place where Vashram is lying in a pool of blood it cannot be suggested that they did not see anything and they did not reach the place. It is tried to be suggested that if they saw the incident why should have they asked Vashram as to what had happened. That explanation the witnesses themselves have given and the explanation is that they wanted to know the details and the cause. What they saw was that the accused gave knife blows to Vashram. They did not know as to what transpired between the two immediately before the incident. They therefore naturally questioned Vashram to get detailed information which Vashram was unable to give because of several injuries which were inflicted on his person on the vital parts. Merely because the question was put by either of them or all of them to Vashram in regard to the incident it would never mean that the evidence of three witnesses is required to be discarded on the sole ground that either of them or all of them had questioned Vashram. It is here cleanly forgotten that the incident occurred in the morning at about 6-0 A. M. From Dhoraji a taxi was called for. Somebody must have gone to Dhoraji to bring the taxi. Taxi was again brought from Dhoraji to Parbadi and Vashram was removed to Hospital. The Medical Officer declared him dead. He sent a telephonic message which was recorded in the police station diary. Thereafter the police reached hospital and at that place by 9-30 A. M. the complaint was recorded. Therefore the person who was eye witness did not waste any time. It is quite normal and natural for the persons to see that an injured person is removed to the hospital. The Medical Officer is not an investigating officer. He is only required to be told about the blows with a knife. The information is for the purpose of getting the treatment. The Medical Officer is interested in knowing as to with what disease or with what injury or with what weapons injury the person had come for treatment. He has to deal with the patient fast in such a situation. The information is for the purpose of getting the treatment. The Medical Officer is interested in knowing as to with what disease or with what injury or with what weapons injury the person had come for treatment. He has to deal with the patient fast in such a situation. He not being the investigating officer does not start interrogating the persons who come there and waste time. He knows the history of assault and starts treatment. ( 8 ) 8 The Medical Officer Dr. Vinod Rayani exh. 33 on examination found the following injuries when he performed post-mortem examination on the dead body of Vashram Meghji. The following injuries were found externally :1 Incised wound chest left parietal region at the level of first intercostal space. Oblique downward and medially about 5 c. m. away from the midline about 3. 5 x 1. 00 c. m. and going deep obliquely down to the left lung cutting the 2nd rib in the way. 2 Incised wound chest left side at the level of 5th rib oblique downward and laterally about 10 c. m. away from the midline about 5 x 1. 5 c. m. and going deep obliquely down to the lung and left lobe of live cutting it between 5th rib. 3 Incised wound tight shoulder region laterally oblique downward and laterally about 5. 0 x 1. 0 c. m. and about 5 c. m. deep 4 Incised wound neck-right side laterally transverse about 5. 0 x 0. 2 c. m. 5 C. L. W. root of the nose about 1. 5 x 1. 0 x. 0. 2 c. m. 6 Superficial incised wound left shoulder region laterally oblique laterally and downward about 5 x 0. 2 x 0. 2 c. m. 7 Incised wound chest-right-lateral side-oblique downward and medially about 10 c. m. below axilla about 2. 5 x 0. 2 x 1. 5 c. m. 8 Incised wound back transverse about 7th throsic vertibral level and about 2. 5 c. m. right to the midline about 5. 0x 1. 0 c. m. and going deep obliquely upto muscle. 9 Incised wound-back transverse about 10th therasic cavity down and oblique. 10 C. L. W. left scapula region about 1. 5 x 0. 5 x 0. 2 c. m. oblique. ( 9 ) 9. 5 c. m. right to the midline about 5. 0x 1. 0 c. m. and going deep obliquely upto muscle. 9 Incised wound-back transverse about 10th therasic cavity down and oblique. 10 C. L. W. left scapula region about 1. 5 x 0. 5 x 0. 2 c. m. oblique. ( 9 ) 9. On internal examination he found the following two injuries:1 Incised wounds anteriorly oblique 2 in number about 2. 5 x 1. 0 c. m. each lower middle lobs. 2 Major vessels of the theratic cavity with tor and hence theratic cavity filled with blood. ( 10 ) 10 He found the injuries to be ante mortem and according to him the cause of death was due to profuse intra theratic theratic from damage to the major vessels of thorax. The injury to the lung and liver caused by multiple incised wound ultimately wild intra theratic Hemorrhage was found to be sufficient in the ordinary course of nature to cause death. Now that therefore was a case where the person when taken to the Medical Officer was found dead. He had several incised wounds. There was profuse bleeding. Lung and liver were damaged by injuries and there was intra theratic hemorrhage. It was therefore clear that the death was homicidal and the injuries also were sufficient in the ordinary course of nature to cause death. Therefore it was a clear case of murder. The evidence disclosed that the man had gone to answer the call of nature in the morning and was returning. While he was so returning he was attacked. Naturally therefore empty tin would fall down on the ground which is found. So also the shoes. Because of profuse bleeding after the injuries were caused to a running person with knife the earth which was collected on the road was to be stained with human blood. The other evidence disclosed that the weapon used was also recovered from osri of the house of the accused. It is doubtful whether he made a statement as contemplated by sec. 27 of the Indian Evidence Act. But it is more than clear from the evidence of Jasmat exh. 14 that a knife was found from the osri of the house of the accused and the report of the Forensic Laboratory showed that the blood found on the knife and earth was of human origin. 27 of the Indian Evidence Act. But it is more than clear from the evidence of Jasmat exh. 14 that a knife was found from the osri of the house of the accused and the report of the Forensic Laboratory showed that the blood found on the knife and earth was of human origin. ( 11 ) 11 We have already discussed the evidence of the three eye witnesses and also referred to the few contradictions which are brought out in cross-examination which were omissions and were for the first time stated in the Court during cross-examination. Few discrepancies which are brought on record are also mentioned and discussed at the time of the discussion of the evidence of each and every eye witness. It is required to be remembered that the incident occurred on 18-9-1379. The witnesses gave evidence in the month of April 1980 One of them was a college student and two others were villagers. The real crux of the problem is as to how to appreciate the evidence of the wetness when they pose to be eye witnesses to the occurrence. The first question would be whether their presence would be natural at the place where they suggest that they were present ? Next immediate question would be whether if they were present at that particular place whether on hearing cries save. . . save would they look and run? The answer in this particular case would be in affirmative because Vashram was the near relative. As soon as he raised cries his cries would be heard and identified to be that of Vashram Naturally therefore the persons would immediately try to see and come out if possible. They did the same thing and witnessed the incident. Vashram was running for life the accused was following him several blows were inflicted on different parts of the body. Naturally to a running person they would be inflicted during the course where he was following him. Ultimately the fellow fell down. They did the same thing and witnessed the incident. Vashram was running for life the accused was following him several blows were inflicted on different parts of the body. Naturally to a running person they would be inflicted during the course where he was following him. Ultimately the fellow fell down. It may be stated here that at the place where Vashram fell down the witnesses would not have seen him at that particular place if they remained in their houses from where they witnessed the beginning of the incident but want they have precisely done was that they came out one from western direction and two from eastern direct tion and they also naturally ran after the fall of Vashram. The accused naturally would have only to escape. Therefore he did run and all the three saw him running away. These three parcels were the persons who immediately reached the spot. One was the son of the deceased. They in due course and in the most natural was removed Vashram to his own house which was nearby. Thereafter efforts were made to remove him to the hospital and for that purpose a taxi was called from Dhoraji and he was taken to Dhoraji. All that was possible was done. The man was declared dead at Dhoraji. Immediately when police went to the hospital the complaint was given meaning thereby that the statement of the complainant was recorded. We say so because police station diary which was prepared on telephonic message was the information in first point of time which disclosed the cognizable offence and that therefore whatever was recorded from the mouth of the complainant could not be treated as F. I. R. and therefore rightly not exhibited. The fact remains that so soon as opportunity came before the complainant to narrate the incident in detail to the police it was done. The incident which was narrated in court could not be contradicted by the first statement which was recorded at the hospital. The law on the point is that the appreciation of evidence in a criminal trial is required to be done on the bold probabilities of a case. The evidence of the witnesses cannot be thrown away because of few discrepancies here or there or some omissions. The law on the point is that the appreciation of evidence in a criminal trial is required to be done on the bold probabilities of a case. The evidence of the witnesses cannot be thrown away because of few discrepancies here or there or some omissions. If the story is probable in the sense that it is coming in natural flow and it finds support from the surrounding circumstances it cannot be suggested that the story must be photographically accurate and should stand to the test of word and in measurement inch to inch. As we have observed above first blow though was given near the house of Amba Vira on the south-north road it does not stand to reason that the blood must be found at that particular place where the first blow was given. The man was running for life. If he ran few feet and the blood fell on the ground alter soaking on the clothes it would be on the contrary a natural circumstance. The lying of tin and the shoes clearly indicate the plan where the first blow must have been given. We would like to refer to certain rulings on the appreciation of evidence which are required to be born in mind. The first case is the case of SHIVRAJ SINGH V. STATE OF V NDHYA PRADESH REPORTED IN A. I. R. 1955 VINDHYA PRADESH AT PAGE 36. The High Court observed as under:in assessing the credibility of witnesses the test is two-fold: The first Generally about the veracity of the witnesses viz. whether he has got such regard for truth that generally speaking the Court call accept his statement subject of course to correction for the vagaries of memory and observation and separable evaggerations and super-additions which do not go to the root of the matter. ( 12 ) 12 the second test is in regard to a case where there are more accused persons and what is required is whether in regard to each accused the witness had an opportunity to make the correct observation and a motive to speak the truth. Now therefore the test is whether the witness has a general regard for the truth. The first test is required to be applied. Now therefore the test is whether the witness has a general regard for the truth. The first test is required to be applied. The question is whether his evidence is such which could be accepted Which is always subject of course to correction for the vagaries of memory and observation ing separable exaggeration and super-designees which do not go to the root of the latter. Now that therefore it is not that the learned Additional Session Judge took one view and on re-appreciation of the evidence we are taking the other view in this matter. What is clear to us is that the view taken by the learned Additional Sessions Judge Rajkot at Gondal is not at all a possible view. He has unnecessarily given importance to the discrepancies which were not only likely but if truth were to come in evidence such discrepancies would bound to be there. Unless they were bent upon telling a parrotlike story. ( 13 ) 13 The second case which we would refer to is a case of BHAGWANBHAI DULABHAI JADHAV V. THE STATE OF MAHARASHTRA REPORTED IN 64 B. L. R. AT PAGE 784. It was a case under the Bombay Prohibition Act. It was the case of the prosecution that accused no. 1 in that case was driving a car and the car was ultimately opened with the held? of the key which was found on the person of accused No. 5. 43 sealed bottles of foreign liquor and a large number of packets of tobacco were found. Several other persons were also prosecuted for the offence punishable under secs. 5 (a) 66 81 and 83 of the Bombay Prohibition Act. The defence case was that there was a plot engineered by the enemies the first accused and accused No. 5 denied that the key of the luggage compartment was found on his person. The Trial Magistrate held that the prosecution evidence was insufficient to establish that the persons accused before him were acting in conspiracy or were abetting each other in transporting contraband articles in the car and acquitted them. Against the order of acquittal the State of Bombay appealed to the High Court of Bombay and the High Court observed that the trial Court treated the case as a mathematical problem and examined the evidence giving undue importance to minor discrepancies. Against the order of acquittal the State of Bombay appealed to the High Court of Bombay and the High Court observed that the trial Court treated the case as a mathematical problem and examined the evidence giving undue importance to minor discrepancies. In the view of the Trough Court the evidence established that in consequence of information received from police station Vapi the motor car was stopped and searched. The Suppression Court observed that the High Court was undoubtedly dealing with an appeal again st an order of acquittal but the Code of Criminal Procedure placed no special limitation upon the powers of the High Court in dealing with an appeal against an order of acquittal. The High Court is entrusted with power to review evidence and to arrive at its own conclusion on the evidence. There are certainly restrictions inherent in the exercise of the power but those restrictions arise from the nature of the jurisdiction which the High Court exercises. In a criminal trial the burden always lies on the prosecution to establish the case against the accused and the accused is presumed to be innocent of the offence charged till the contrary is established. The burden lies upon the Prosecution and the presumption of innocence applies with equal if not greater force in an appeal to the High Court against an order of acquittal. In applying the presumption of innocence the High Court is undoubtedly slow to disturb findings based on appreciation of oral evidence for the Court which has the Opportunity of seeing the witnesses is always in a better position to evaluate their evidence than the Court which merely peruses the record. In the present case the High Court in our judgment was right in holding that the trial Court ignored the broad features of the prosecution case and restricted itself to a consideration of minor discrepancies. The Magistrate meticulously juxtaposed the evidence of different witnesses on disputed points and discarded the evidence in its entirety when discrepancies were found. That method was rightly criticised by the High Court as fallacious. The Supreme Court further observed as under:the Magistrate had to consider whether there was any reliable evidence on the question which had to be established by the prosecution. That method was rightly criticised by the High Court as fallacious. The Supreme Court further observed as under:the Magistrate had to consider whether there was any reliable evidence on the question which had to be established by the prosecution. Undoubtedly in considering whether the evidence was reliable he would be justified in directing his attention to other evidence Which contradicted or was inconsistent with the evidence relied upon by the prosecution. But to discard all evidence because there were discrepancies without any attempt at evaluation of the inherent quality of evidence was unwarranted. ( 14 ) 14 Ultimately the Supreme Court dismissed the appeal and confirmed the sentence passed by the High Court on accused Nos. 11 and 5. ( 15 ) 15 In another case of ABDUL GANI and OTHERS V. STATE OF MADHYAPRADESH REPORTED IN A. I. R. 1954 SUPREME COURT AT PAGE-31 in regard to the appreciation of evidence the Supreme Court observed as under :though the prosecution witnesses have not told the whole truth and though it is not possible to get an absolutely true picture of the events from their evidence where it is not possible to say that the prosecution case is a complete fabrication and where it appears that certain murders have resulted from a riot in which some at least of the several accused have taken part the Courts should make an effort to disengage the truth from the falsehood and to sift the gain from the chaff. It is an error to take an easy course of holding the evidence discrepant 3nd the whole case untrue. Of course the story given by the eye witnesses has to be carefully scrutinized and unless it can be said with reasonable certainty that a Certain person took part in the riot the benefit of doubt has to be given to him. Now in this particular case the case was simple. There were not many accused persons. There was no question as to which part each accused played. It was one murder and one accused. The weapon used was a knife. The visibility was there. The road on which Vashram walking after answering the call of nature is certain. He was going from south to north and was to proceed to east to go to his house. The accused on the street near the house of Amba Vira attacked him with a knife. The weapon used was a knife. The visibility was there. The road on which Vashram walking after answering the call of nature is certain. He was going from south to north and was to proceed to east to go to his house. The accused on the street near the house of Amba Vira attacked him with a knife. The three eye witnesses whose houses are in the vicinity were able to see. Lakha and Vallabh were the witnesses who were bound to be there. Kala-stated that he was there with Vallabh because he was reading at that particular place. We have discussed that part of evidence. Merely because the blood is found to the north on the road which ultimately leads to the east where Vashram was lying one cannot conclude that the first blow was not given on the road near the house of Amba Vira. Such a conclusion is not possible. On the contrary it appears more than clear that the first blow was given at that very place because the whole murderous assault began at that place and as a result the tin was found lying there and ultimately then one was running for life his shoes were found. Further to the north blood stained earth was found. Ultimately he fell down. Within seconds all the three eye witnesses reached the place. This could have never happened unless they had immediately come out hearing cries save. . . save. . . and ran towards that place. If they came out and immediately ran to the north and to the east as suggested by Lakha and others who had come out on the east and went near Bavanjis house were bound to see the accused person running away. Now that therefore they have not only seen the accused giving blows at the time when they were in their houses but they saw the whole incident because they ran after them and ultimately they saw the accused running away and Vashram lying in a pool of blood. The evidence therefore was such which with reasonable certainty established that it was the accused who dealt the blows. This view is not one of the possible views but this view is the only possible view. To take any other view when the evidence is of such overwhelming nature would be to take the most unreasonable view. The evidence therefore was such which with reasonable certainty established that it was the accused who dealt the blows. This view is not one of the possible views but this view is the only possible view. To take any other view when the evidence is of such overwhelming nature would be to take the most unreasonable view. It is an easy recourse to record acquittal by finding out few discrepancies here or there and then to say that it is a case where a reasonable doubt exists. The doubt must be reasonable. It must flow after an industry. It must never flow out of confusion or lethargy. If one does not look at the map properly and one gives too much importance to the discrepancies which are bound to occur in every criminal trial and one gets confused that confusion is neither a doubt nor could it be termed to be a reasonable doubt. We have therefore carefully scrutinized the evidence once again fully because ultimately it was a case of murder and the learned Additional Sessions Judge had recorded the finding of acquittal. Being conscious of the fact that we had to examine the case from the view whether the learned Additional Sessions Judge had taken a possible view or not we therefore having carefully gone through the entire evidence on record what we feel is that an unreasonable view and the view which is not possible is taken by the learned Additional Sessions Judge. The witnesses are such on whom reliance was required to be placed. They were natural eye Witnesses to the occurrence and they had done everything which was possible to remove Vashram to the hospital and to give their versions to the police at the earliest when they met the police. The other circumstances lend support and we do not find anything by which we can come to the conclusion that any of them was a chance witness or that he had no opportunity to see or that the witness was not telling what was not true. ( 16 ) 16 Before we part this case we would like to state that care is not taken either by the learned Public Prosecutor or by the learned Additional Sessions Judge to bracket the inadmissible portions of evidence in the panchnamas. This is always required to be done. ( 16 ) 16 Before we part this case we would like to state that care is not taken either by the learned Public Prosecutor or by the learned Additional Sessions Judge to bracket the inadmissible portions of evidence in the panchnamas. This is always required to be done. This results at times to read something which is not admissible. We had to take great pains to discard the statements which were recorded in the panchnamas which was hit by sec. 162 of the Criminal Procedure Code and only read that part which was admissible. This of course we did. But it is to be remembered that this is required to be done at the trial when the trial is conducted and it is the first duty of the learned Public Prosecutor to see that the portion inadmissible in the panchnama is bracketed and after it is bracketed that panchnama is required to be handed over to the Court for exhibiting the same if it is duly proved. If this duty is missed it is the duty of the learned Additional Sessions Judge who tries the case to see that the portion which is inadmissible is required to be bracketed so that at the time of reading the panchnama nothing which is not admissible crepts in the judgment. ( 17 ) 17 In view of what has been stated above the appeal of the State is required to be allowed. The order of acquittal passed is hereby set aside. It is not necessary to hear the accused in regard to the sentence because the only alternative sentence provided for the offence punishable under sec. 302 I. P. C. is life imprisonment. The offence is an offence punishable under sec. 302 I. P. C. This is clear from the medical evidence on record. There are several injuries. There are injuries to the lung and liver. There is profuse inter theratic haemorrhage. The man was practically done to death. He was attacked brutely and he was not allowed even though he tried to run. It is a clear case of murder. However as we are not inclined to inflict the highest punishment prescribed for murder it is not necessary to hear the accused person in regard to the sentence. ( 18 ) 18 The result is that the accused is convicted for the offence punishable under sec. It is a clear case of murder. However as we are not inclined to inflict the highest punishment prescribed for murder it is not necessary to hear the accused person in regard to the sentence. ( 18 ) 18 The result is that the accused is convicted for the offence punishable under sec. 302 I. P. C. and sentenced to suffer imprisonment for life. The accused is given time to surrender within four weeks. After completion of four weeks warrant for arrest of the accused to be issued. .