State v. Accused — 1991 DIGILAW 389 (GUJ)

JUDGMENT : B.S. Kapadia, J. The present appeal is filed by the State against ten respondents, who were accused in Sessions Case No. 33 of 1982 of the Court by the learned Additional Sessions Judge, Sabarkantha at Himatnagar, who by his judgment and order dated 21.3.1983 acquitted all the respondents (accused) of the offences for which they were charged. 2. The charge levelled against the accused were that on 19.5.1982 at about 11.00 p.m. at the Village Jeshingpur-Hathiya, Taluka Bhiloda, District Sabarkantha, all the accused formed unlawful assembly with common object to take revenge of their involvement in one theft case, against witness Shaluji Jivaji and the complainant Sukhabhai Becharbhai and deceased Khatrabhai and to cause death of Khatrabhai Becharbhai and to cause injuries to Bai Ditiben, wife of Khatrabhai Becharbhai, and committed rioting and thereby committed offence punishable under Section 147 of the Indian Penal Code. The accused were also charged for the offence under Section 148 of I.P.C. on the allegation that during the said unlawful assembly with the said common object the accused Nos. 2 and 6 were armed with dharias, accused Nos. 1, 3, 4, 5, 7 and 9 were armed with sticks and the accused No. 8 was armed with stones, which weapons were deadly and dangerous. The accused were also charged for the offences under Sections 504 and 149 of the I.P.C. on the allegation that as members of the said unlawful assembly they all used abusive language against the complainant Sukhabhai, his brother Khatrabhai, witness Ditiben and witness Shaluji Jivaji and which abuses were meant to annoy or insult them and they were likely to cause breach of peace. The accused were also charged for the offences under Sections 427 and 149 of the I.P.C. on the allegation that in furtherance of the common object the accused caused damage to the house of Saluji Jivaji and the bullock of Sukhabhai Becharbhai and in all they caused damage to the tune of 100/-. The accused No. 6 was also charged for voluntarily causing grievous hurt to Khatrabhai Becharbhai by inflicting blows with back portion of dharia while it is alleged that the accused Nos. 1, 3 and 5 by inflicting blows with sticks caused fracture of the right hand bone of Khatrabhai and thereby committed offences under Sections 325 and 149 of Indian Penal Code. The accused Nos. 1, 3 and 5 by inflicting blows with sticks caused fracture of the right hand bone of Khatrabhai and thereby committed offences under Sections 325 and 149 of Indian Penal Code. The accused Nos. 2 and 6 were also charged for the offences under Sections 302 read with 149 on the allegation that as members of the said unlawful assembly they have committed murder by intentionally causing death of Khatrabhai Becharbhai by giving blows on his head and body by means of dharia. The accused Nos. 1, 3 and 5 were also charged for the offence under Section 325 read with Section 149 I.P.C. for causing simple hurt to deceased Khatrabhai Becharbhai by means of sticks. The accused Nos. 4, 7, 8 and 9 were also charged for the offence under Section 323 read with Section 149 of the 1.P.C., on the allegation that they have caused simple hurt to Bai Ditiben Khatrahhai by means of stick and stone. All the accused were charged for the offences under Sections 147, 148, 504, 427, 325, 323 and 302 read with Section 149 of the I.P.C. on the allegation that all of them being members of the said unlawful assembly with the said common object committed the aforesaid offences. All the accused have pleaded not guilty and they claimed to be tried. 3. The prosecution case in nutshell can be stated as under : The complainant Sukhabhai Bodat is the resident of village Jesigpur and before three months from the date of incident i.e. 19.5.1982 a theft was committed at his house and in that case Khuman Nanji Bodat (accused No. 1) and Khimji Thavra (accused No. 7) were arrested. In the said theft case Saluji Jivaji was the principal witness. There was also a quarrel between the complainant and the accused No. 2 Karmaji Kodarji in respect of the boundary of Survey No. 181/2. A chapter case was filed against the accused No. 2 and on account of these relations were strained. 4. On 19.5.1982 the marriage of the accused No. 9 was to take place and therefore, his relatives and village people had gathered there. At about 11.00 p.m. on that day all the accused were armed with deadly weapons such as dharia and sticks. 4. On 19.5.1982 the marriage of the accused No. 9 was to take place and therefore, his relatives and village people had gathered there. At about 11.00 p.m. on that day all the accused were armed with deadly weapons such as dharia and sticks. They formed themselves into an unlawful assembly and proceeded towards the house of Saluji Jivaji and they gave him abuses and shouted as to why he had given evidence in the theft case. They challenged him to come out as they wanted him to be done to death. Saluji escaped out of fear along with his children. The crowd thereafter caused damage to his house. 5. The crowd thereafter turned towards the house of the complainant shouting and calling the complainant to come out as they wanted to settle the accounts with him. Saying this the accused Nos. 2 and 6 gave blows with dharia on the door of the complainant while the accused No. 8 pelted stones and others broke the tiles with sticks. The complainant and his family members on seeing the crowd advancing to their house closed the door of their house after going inside the house. The accused caused damage to the complainant's bullocks. The complainant shouted for help. On hearing this the complainant's brother Khatraji told him not to worry as he was coming. The unruly crowd thereupon went towards the house of Khatrabhai. In the meanwhile Thavra Jiva Kalasa and Jivaji, the son of Khatraji and Rupaji Dhulaji went to the house of Khatraji. The accused thereafter disappeared in different directions. 6. Said witnesses saw Khatrabhai bleeding from his head and he was lying unconscious. His wife Ditiben was also injured and she was crying. The complainant thereupon went to village Bhetali where he met Prabhudas K. Patel, Deputy Sarpanch, who telephoned to the Police Station at Bhiloda from the house of one Modh Patel and requested the Police Station Officer to send the Police bandobast. The said telephonic message is at Ex. 64. 7. The complainant went back to his house. Thereafter PSI K.K. Patel was informed by Head Constable Padamsinh. The PSI thereupon went to the Police Station and took the charge. In the morning at 7.00 a.m. on the next day the complain ant came there and he lodged the complaint. The said telephonic message is at Ex. 64. 7. The complainant went back to his house. Thereafter PSI K.K. Patel was informed by Head Constable Padamsinh. The PSI thereupon went to the Police Station and took the charge. In the morning at 7.00 a.m. on the next day the complain ant came there and he lodged the complaint. PSI went to the scene of offence at 8.45 a.m. and made the panchanama of the scene of offence. The PSI visited the houses where the accused had caused damage and he attached the muddamal. He recorded the statements of the witnesses and he arrested all the accused, except the accused No. 9, on 20.7.1982. The accused No. 10 who was absconding was arrested on 7.2.1983. After committal of the case it was tried by the learned Addl. Sessions Judge, who by his order dated 21.3.1983 held the accused not guilty of the offences for which they were charged and acquitted all of them of the said charges. 8. At the outset it may be stated that the prosecution has examined about 15 witnesses out of which five have claimed to be eye-witnesses. First one of them is Sukhabhai Becharbhbi, the complainant, PW.7 (Ex. 53). The complaint filed by him is Mark 'A'. While the telephonic information given is treated as complaint and it is at Ex. 64. Second eye-witness Bhara Lkumar Sukhabhai PW.8 is examined at Ex. 55. The third eye-witness Jivaji Khatraji, PW.9 is examined at Ex. 56. Ditiben PW. 11 has been examined at Ex. 56. However, her evidence was not placed in the Paper Book initially. Subsequently xerox copy of the same has been placed in the Paper Book at page 446A. The fifth eye-witness Valiben, PW. 10 has been examined at Ex. 57. In addition to the said evidence there is also medical evidence of Dr. Shivabhai Patel, PW.1 (Ex. 32). The post-mortem note is at Ex. 32. According to Dr. Patel (Ex. 32) there were six injuries on the deceased. While according to Dr. Mulchand Parmar, PW.2 (Ex. 34), who examined the deceased earlier in the Cottage Hospital at Bhiloda found eight injuries. According to the prosecution the accused Nos. 1, 3, 4, 5, 7 and 9 had sticks with them while the accused No. 2 and 6 had dharia and the accused No. 8 had stones with her. 9. Mr. M.A. Bukhari, learned Addl. 34), who examined the deceased earlier in the Cottage Hospital at Bhiloda found eight injuries. According to the prosecution the accused Nos. 1, 3, 4, 5, 7 and 9 had sticks with them while the accused No. 2 and 6 had dharia and the accused No. 8 had stones with her. 9. Mr. M.A. Bukhari, learned Addl. PP with a view to convince us on the point that the learned Addl. Sessions Judge has committed material error in appreciating the evidence of the witnesses, has taken us through the entire evidence on recjrd. We have also scrutinised the entire evidence carefully. We have also considered the reasons given by the learned Judge while appreciating the evidence of the witnesses. So far as the evidence of Sukhabhai is concerned, appreciation thereof starts from para 13 on page 14 of the judgment. Appreciation of the evidence of Bharatkumar is made in para 25 of the judgment on page 24 onwards. So far as the evidence of Jivaji Khatraji is concerned, appreciation thereof proceeds from para 27 on page 28 of the judgment. So far as the evidence of Ditiben is concerned, appreciation thereof proceeds from para 29 on page 30 of the judgment. While Valiben's evidence has been appreciated by the learned Judge in para 30 on page 32 of the judgment. 10. The learned Judge after considering the entire evidence in the matter in para 33 of the judgment stated as under : "Therefore, my impression about the eyewitness 'account is that the identification by the voice by the complainant and his son and other is not reliable and the evidence of Jivaji and his mother Bai Ditiben who is herself injured witness on the point of identification by torch light is certainly an embellishment and therefore, does not inspire any confidence..." 11. On perusal of the evidence of Ditiben, PW.11 (Ex. 58) it is clear that she has clearly stated in her cross-examination that she had become unconscious after receiving injury and that she had no talk with Sukha Master. On the contrary, the evidence of Sukhabhai is that when he went to his brother's house he found his brother Khatrabhai unconscious and that he had profused bleeding from his head and that his brother's wife Ditiben was weeping and she told that her husband was given dharia blows by Karmaji Kodarji and Nanji Jamadar i.e. the accused Nos. On the contrary, the evidence of Sukhabhai is that when he went to his brother's house he found his brother Khatrabhai unconscious and that he had profused bleeding from his head and that his brother's wife Ditiben was weeping and she told that her husband was given dharia blows by Karmaji Kodarji and Nanji Jamadar i.e. the accused Nos. 2 and 6 respectively. It is therefore, clear from the evidence of Sukhabhai that he had not personally seen the accused Nos. 2 and 6 giving blows to the accused. According to him he got the information from Ditiben. Ditiben had clearly belied him by saying that she had no talk whatsoever with Sukha Master in the relevant night. Thus, it is clear that Sukhabhai had not witnesses the incident and that his brother's wife Ditiben had not talked to him regarding the incident. 12. The second point to be considered is with regard to complaint Mark "A" given by Sukhabhai. Said complaint was given very late i.e. at 7.00 a.m. on the next day. While earlier information about the incident was given by him through the assistance of Deputy Sarpanch Prabhudas Patel on telepliore at 1.15 a.m. on 20.5.1982. Said information which is Ex. 54 clearly conveys the details regarding commission of the cognizable offence as much as. It clearly speaks about the attack or assault made the accused No. 2 with dharia with the help of others at the house of Sukha Master and that Khatrabhai Becharbhai was seriously injured on account of dharia blows and that others were also injured. Said telephonic message cannot be said to be cryptic information which does not disclose the details about the cognizable offence. When that is so, the complaint Mark 'A' cannot be treated as F.I.R. and it can be considered as statement under Section 162 of the Criminal Procedure Code which cannot be admitted in evidence. 13. If the evidence is to be considered on the basis of what has been stated in the complaint at Ex. 64 it is clear that Sukhabhai, who is the complainant had made much improvement in his story. It also appears that the place of offence is changed by him. 14. In this case the most important aspect to be considered is with regard to the identification of the accused on that night. 64 it is clear that Sukhabhai, who is the complainant had made much improvement in his story. It also appears that the place of offence is changed by him. 14. In this case the most important aspect to be considered is with regard to the identification of the accused on that night. It is undisputed fact that there is no facility of electricity in the said village. The incident had taken place on Vaishakh Vad 11 and therefore, there was no moonlight and in absence of other light it was not possible to see in the darkness. It is stated by Sukhabhai in the opening of his cross-examination and Valiben in her evidence that it was a dark night and that in absence of lantern one could not identify the persons. 15. The learned Judge has thread-bare discussed the entire evidence of the complainant from para 13 on page 14 of the judgment. According to the complainant house of Shaluji is at a distance of 100 paces from his house and the house of the accused No. 2 is at a distance of about 200 paces towards the south west from the house of Shaluji Jivaji. According to him house of Khatrabhai is at a distance of about 1500 fts. form his house. According to Sukhabhai when the crowd started near from the house of the accused No. 2 he could definitely say from the voice as to how many persons were there in the crowd. It is clear that he had not seen the persons who joined the crowd. He also says that he did not see as to which accused had what weapons in his hand, but he definitely says that there were ten persons. The learned Judge has considered this evidence and stated that it is absurd and not probable. The learned Judge has also considered this part of the evidence on the touch-stone of probability and stated that "No one can say at the dead of night the crowd assembling at a distance of about 100 paces or more than 300 ft. as to how many persons were actualiy there in the crowd..." Therefore, the account given by Sukhabhai is totally improbable. 16. as to how many persons were actualiy there in the crowd..." Therefore, the account given by Sukhabhai is totally improbable. 16. For the reasons best known to the witness Sukhabhai he had stated that he did not know as to whether on that day there was marriage at the house of Surji Soma and that he did not know whether record was being playing on loudspeaker. However, in the cross-examination he stated that he knew that there was marriage at the house of Surji as his brother's son Jivaji Khatra had told him that he had gone to the house of Surji Soma as there was marriage. It may be stated that normally if the loudspeaker is working one cannot hear the other voice and that is the reasons why he wanted to suppress the fact about marriage as also playing of loudspeaker at the relevant time. According to the complainant loudspeaker was turned off at 11.00 p.m. Without saying so he cannot make others to believe that he heard the shouts from Surji's house. The prosecution ought to have examined Surji, but he has not been examined. If Surji would have been examined it would have been clear as to whether the loudspeaker was working at the relevant time. 17. The loudspeaker Sukhabhai has not stated in the complaint about pelting of stones at his house. Therefore, there is an improvement in his story. If at all the crowd was coming to his house and if two persons were hitting the door with dharias other persons in the crowd would not have pelted stones on the door or on the wall inasmuch as such stones, if pelted, would have hit the two accused who were hitting the door with dharias. Therefore, evidence of this witness on the point of pelting stones and also his seeing the accused pelting stones, does not inspire confidence. 18. So far as the second witness Bharat kumar is concerned, he also similarly says about pelting of stones. In view of the aforesaid reasons his version cannot be accepted. According to Bharatkumar, Khatrabhai was lying on the cot and was bleeding from his head and was unconscious and Ditiben told him that the accused Nos. 2 and 6 had given dharia blows to Khatra Bechar and that she was also beaten with sticks by them as also other persons from the crowd. 19. According to Bharatkumar, Khatrabhai was lying on the cot and was bleeding from his head and was unconscious and Ditiben told him that the accused Nos. 2 and 6 had given dharia blows to Khatra Bechar and that she was also beaten with sticks by them as also other persons from the crowd. 19. At this juncture it is necessary to peruse the medical evidence of Dr. Mulchand Parmar, PW2, (Ex. 34). He has spoken about eight injuries of which the sixth injury was bleeding from right ear and foreign body seen in right ear. Except that there was no other injury relating to bleeding. The first injury was contused lacerated wound on right parital region and the fifth injury was pain and tenderness on right upper and middle one-third part. The injury No. 7 was wheel mark on right back of chest and 8th injury was diffuse swelling of right elbow and right wrist joint. Thus looking to these injuries it cannot be said that there was any bleeding from the head. While according to this witness he saw bleeding from the head of the deceased. Thus the evidence of this witness is also contradictory to the medical evidence. This witness had stated that when the accused came to his house he had not seen them personally and when the crowd went to the house of Saluji he did not see what type of weapons were with them, but two persons from the crowd were shouting one after the other. In the cross-examination he had stated that it had not happened that when the crowd turned to come to their house they had gone inside the house. He also admits that he had so stated before the Police. His version on the point that he did not go inside the house cannot be accepted. The house of Saluji is at a distance of 200 fts. from his house and therefore, during the dark night it was difficult to identify the persons from distance of about 10 to 15 fts. Under the circumstances it was not possible for this witness to identify any person, but had come just to help his father as his father had some dispute with the accused No. 2. from his house and therefore, during the dark night it was difficult to identify the persons from distance of about 10 to 15 fts. Under the circumstances it was not possible for this witness to identify any person, but had come just to help his father as his father had some dispute with the accused No. 2. So far as his evidence that Ditiben told him as to who had beaten them is concerned, there is material omission as he had not so stated before the police. If Ditiben had told as to who had beaten her then he would have definitely stated so before the police. Thus, that part of his evidence does not inspire any confidence. 20. So far as the evidence of Jivaji, PW9 (Ex. 56) is concerned, it may be stated that he claims to have seen the accused No. 2 giving dharia blow to his father. According to him, he saw it in the light of the torch. According to him, Bharat had already come and after his coming the crowd went away. On the contrary, Bharat had stated that when he reached the house of Khatraji the crowd had left the house. If that is true when Jivaji came the crowd must have left the house of Khatraji. According to him he heard the shouts from the use of his uncle. Therefore, his natural conduct would have been that he should have gone to the house of his uncle. According to him the loudspeaker was working upto 11.00 p.m. but it had stopped at that time. However, dancing had continued. The learned Judge has considered this aspect meticulously and came to the conclusion that this does not seem to be correct because dancing at the place of marriage was going on even according to this witness, and therefore, it was quite possible that loudspeaker must have been on. It is admitted by him that he had not stated before the police that others had given stick blows to his father. According to him, his mother was beaten by the accused Nos. 3, 5 and 9 by means of stick while others had given kick and fist blows. He had also stated that Bharat was present at the time of 'maramari' when actually it was in progress and that Bharat had no weapon. The statement of this witness that he had seen the accused Nos. 3, 5 and 9 by means of stick while others had given kick and fist blows. He had also stated that Bharat was present at the time of 'maramari' when actually it was in progress and that Bharat had no weapon. The statement of this witness that he had seen the accused Nos. 2 and 6 giving blows by means of dharia and that he had seen with the help of torch does not seem to be correct. If at all he had a torch with him he could have seen whether Bharat had any weapon and he could have also seen the injuries inflicted by others to his mother. If we consider the deposition of Ditiben, it can be seen that in her cross-examination she had stated that she intervened to save her husband and as soon as she intervened she received injuries. According to her after hearing her cries her son Jivaji came. This version of Ditiben clearly rules out the presence of Jivaji at the relevant time at the scene of offence when his father Khatraji and his mother Ditiben were beaten. 21. According to Ditiben, injured witness, the accused Nos. 2, 3, and 6 came first and the accused Nos. 2 and 6 gave injuries to her husband on his head and that accused Nos. 3 had also beaten him. According to her accused Nos. 4 and 9 gave her blows and accused Nos. 2 and 6 gave dharia blows while accused No. 6 gave stick blows. According to her the accused No. 9 gave stick blow on hip bone and she became unconscious and thereafter the accused ran away. She admitted in the cross-examination that she had not stated before the police that the accused No. 4 gave stick blow to her. According to her she could identify them because they were at a distance of 2 to 3 fts. She has also stated that her son Jiva as also Manu and Kanu had come there and that her son had a battery in hand and in the light of the battery she could identify all the accused. She had already stated that after she raised cries her son came. If that is so, she had raised cries after she was beaten and before that her husband was beaten. She had already stated that after she raised cries her son came. If that is so, she had raised cries after she was beaten and before that her husband was beaten. Under these circumstances her version that he identified the accused in the light of the torch cannot be accepted. 22. The last witness to be considered is Valiben, PW10 (Ex. 57). She had described in her deposition as to with which weapon the accused had come there. She in her cross-examination has stated that one lantern was there in the varanda of her house and that it was a dark night. She has also admitted in the cross-examination that she has not stated in her police statement that there was lighted lantern in the varanda of her house. She also admitted that in the absence of lantern she could not have identified anybody. Thus, her story that she had seen the accused persons, in view of this material omission, cannot be accepted. It appears that she has stated that she has identified the persons from the voice. If at all she had identified the persons in the light of the lantern she would not have so stated. Thus, her evidence on this point that she saw in the light of the lantern the accused with weapons in their hands cannot be accepted. 23. It is also the prosecution case as deposed by almost all the witnesses that the accused Nos. 2 and 6 inflicted dharia blows on the head of the deceased Khatrabhai. It is necessary to consider the medical evidence for the purpose of appreciating the evidence on this point. The medical evidence consists of deposition of Dr. Shivajibhai Patel, PW.I (Ex. 32). At the relevant time he was working as Medical Officer at the Civil Hospital, Himatnagar and he had carried out the post-mortem examination of the deceased and he found the following external injuries : (1) There was one contusion of right parital and frontal region with abrasion on middle of it. Size 6 X 6 cm. irregular oval ½ X ½cm. abrasion irregular and blood stain. (2) One lacerated wound on middle and lateral part of right arm ½ X ¼cm. skin deep irregular with bleeding. (3) One diffused contusion on right fore-arm near elbow joint associated with fracture of right radious. Size 6 X 6 cm. irregular oval ½ X ½cm. abrasion irregular and blood stain. (2) One lacerated wound on middle and lateral part of right arm ½ X ¼cm. skin deep irregular with bleeding. (3) One diffused contusion on right fore-arm near elbow joint associated with fracture of right radious. (4) One diffused contusion on front and middle part of right leg 3 X 3cm. irregular. (5) Vertical contusion on back of right shoulder and scapular region 6.5. cm. X 3cm. irregular linear. (6) There was fracture of right radius. It is clear from the aforesaid external injuries that there was only one contusion of right pariental and frontal region with abrasion on the middle of it and its size was 6cm. X 6cm. It at all two persons had given dharia blows on the head of the deceased there would have been two injuries, but there was only one injury. When there was only one injury the deposition of the witnesses who speak about two person causing injuries with dharia on the head cannot be accepted in view of the direct evidence which the Doctor has found at the time of postmortem examination. 24. Similar is the version of Dr. Mulchand Parinar, PW.2 (Ex. 34). He found eight injuries on the body of the deceased, but there was only one injury on the head i.e. contused lacerated wound on right parietal region of the size of 1cm. X ½cm. by skin deep with fracture of right parietal bone. Thus the medical evidence is inconsistent on the point of giving two blows by two persons on the head of the deceased. This material discrepancy affects the veracity of the witness. 25. With a view to bring home the prosecution case it has relied on the information leading to discovery of the two dharias at the instance of the accused Nos. 2 and 6 from heap of the fire wood lying out side the houses of the said two accused on different dates i.e. on 22.5.1982 and 28.5.1982. One significant aspect to be considered is that sharp edged portions of the said two dharias were smeared with blood. It is also important to note that the postmortem examination of the deceased was done on 20.5.1982 as deposed by Dr. One significant aspect to be considered is that sharp edged portions of the said two dharias were smeared with blood. It is also important to note that the postmortem examination of the deceased was done on 20.5.1982 as deposed by Dr. Shivajibhai Patel and at that time along with other muddamals one white bottle containing blood was found out and it was handed over to the police and it was seized by the police under the Panchnama. It is also important to note that said bottle was sent to the Forensic Science Laboratory for analysis on 28.5.1982. No reason whatsoever are stated in the deposition given by the Investigating Officer as to why the said bottle containing blood was not sent immediately for chemical analysis. Under the circumstances the possibility that the blood which was contained in the bottle might have been used for the purpose of applying on the sharp side of the dhariav (Muddamal Nos. 12 and 13) cannot be ruled out. Both the accused were arrested on 20.5.1982. It is surprising that the accused No. 2 had made discovery of the dharia as on 28.5.1982 while the accused No. 6 had made the discovery of the dharia on 22.5.1982. When the accused No. 6 had made the discovery of the said weapon on 22.5.1982 there was no reason for the accused No. 2 not to give information leading to discovery of the weapon on the same day or nearby and to wait upto 28.5.1982. It is only after the Panchnama of the discovery of the weapon was made the bottle containing the blood was sent for chemical analysis to the Forensic Science Laboratory. Under the circumstances the possibility of applying the blood which was containing in the bottle which was in the possession of the Investigating Officer, on Muddamal Articles No. 12 and 13 cannot be ruled out. This circumstance also does not help the prosecution in anyway particularly in view of the medical evidence which shows only one injury on the head of the deceased and that too C.L.W. and there was no bleeding from the said injury. There was no question of having any blood on the sharp sides of the dharias. It is therefore, clear that there was some improvement in the prosecution story for the purpose of bringing home the charge levelled against the accused. 26. There was no question of having any blood on the sharp sides of the dharias. It is therefore, clear that there was some improvement in the prosecution story for the purpose of bringing home the charge levelled against the accused. 26. Another improbability which occurs to us is that when the crowd was at the house of the complainant Sukhabhai, the complainant raised shouts for help and in response thereto deceased Khatrabhai also shouted that he should not worry and that he would be coming. When that was so after making shouts for coming in response to the shouts of help made by the complainant whether the complainant would have lied on the cot. Answer would be definitely in the negative. It may be pointed out that there was distance of about 1500 fts. in between the houses of the deceased and the complainant. If the crowd wanted to travel this much distance they would have taken at least two to three minutes even by running. Under the circumstances the version that the deceased was found lying on the cot in his own house creates a doubt and that doubt is further supported by the complaint at Ex. 64 which does not speak about the crowd going to the house of Khatrabhai. There is only reference of assault or attack at the house of the complainant and Khatrabhai's injury by dharia. So, it appears that the witnesses have deliberately tried to suppress the real facts of originating the incident and as to how the incident had started. When that is so, it also creates a doubt on the veracity of the prosecution witnesses and particularly those who claimed to be eye-witnesses to the incident. 27. We have tried to appreciate the evidence on record not only from the point of view of inconsistency between the medical evidence and the evidence of the eye-witnesses. but we have also considered the entire case from the point of view of material discrepancy with regard to possibility of mistaken identity on account of the admitted fact that the incident had taken place in a dark night coupled with the fact that the village has no facility of electricity. As discussed above, story about torch and lantern cannot be accepted. As discussed above, story about torch and lantern cannot be accepted. We are conscious of the fact that the eye of village witnesses if they are real eye witnesses and tell the truth they are the eyes and ears of justice and merely because there is some discrepancy between the medical evidence and the oral evidence, the evidence of the eye witness cannot be discarded and the evidence as a whole which is to be appreciated. On overall appreciation of the evidence in the matter we come to the conclusion that the evidence of the prosecution witnesses does not inspire confidence. Therefore, their evidence cannot be relied on. In that view of the matter we are in broad agreement with the reasoning given by the learned Additional Sessions Judge for giving findings on the points for determination raised by him as also the ultimate conclusion arrived at by him. 28. It may be stated that Mr. M.A. Bukhari, learned Addl. PP has cited before us various authorities on the point of appreciation of evidence and particularly with regard to villagers who have trained eyes to see in darkness in absence of electricity. He has also cited before us authority on the point that merely because there is a contradiction between the medical evidence and the oral evidence of the eye-witnesses, the evidence of the eyewitness should not be discarded. However, it is not necessary to enumerate all the authorities cited by him, but we may a mention that we are in agreement with the ratio laid down in the said authorities. However, in the facts and circumstances of the present case, as discussed above, said authorities are not useful to the prosecution case. 29. For the reasons stated above it cannot be said that the conclusion arrived at by the learned Additional Sessions Judge on appreciation of evidence, is against the evidence or unreasonable. Hence we do not find any reason to interfere with the ultimate order passed by the learned Addl. Sessions Judge. We accordingly confirm the order of acquittal passed by the learned Addl. Sessions Judge, Sabarkantha, at Himatnagar in Sessions Case No. 33 of 1982. The appeal therefore, fails and stands dismissed. Appeal dismissed.