JUDGMENT - ASHOK AGARWAL, J. :-Criminal Appeal No. 61 of 1990 is filed by original accused No.1 and Criminal Appeal No. 31 of 1990 is filed by original accused No. 3 At the trial, four accused were charged under section 307, 323 and 504 read with section 34 of the Indian Penal Code for having in furtherance of their common intention, on 3rd of November, 1988, at about 10.30 p.m., on the Table Land at Panchgani, accused No. 1 stabbed P.W. 4 Dnyandeo alias Vinayak Dagadu Shinde and thereby attempted to commit his murder and all the accused voluntarily caused hurt and gave provocation to the said injured Vinayak. Pending the trial, accused No. 4 absconded. His trial was separated. The trial against accused Nos. 1 to 3 proceeded. By judgment and order, passed on the 27th of December, 1989, in Sessions Case No. 33 of 1989, the learned Additional Sessions Judge, Satara was pleased to convict accused Nos. 1,2 and 3 under sections 307, 323 and 504 read with section 34 of Indian Penal Code. For the offence under section 307 read with section 34 of the Indian Penal Code the accused were sentenced to suffer rigorous imprisonment for five years. No separate sentence was imposed for the offences punishable under sections 323 and 504 read with section 34 of the Indian Penal Code. The aforesaid order of conviction and sentence is impugned by accused Nos. 1 and 3 in the present appeals. 2. P.W. 4 Vinayak is the victim of the assault in question. Vinayak first narrated the incident to P.W. 1 Thomas Villiam Manthero who is a Maintenance Foreman of the M.R.A. Centre at Panchgani. He has lodged a complaint in respect of the incident which is at Exhibit 14. Prior to the incident, Vinayak was seen in the company of the accused by P.W. 6 Balasheb Dhondiba Parte, who is the nephew of the owner of Samarat Hotel. At the material time Balasaheb was sitting on the counter of the restaurent and he had seen the accused and Vinayak having an omlet in his restaurent. P.W. 9 Udhav Shankar Mardhekar is a taxi driver. He had seen Vinayak in the company of the accused after they left the Samarat. Hotel. These two witnesses are examined on the point of the accused and Vinayak being last seen together prior to the incident of assault in question. P.W. 9 Udhav Shankar Mardhekar is a taxi driver. He had seen Vinayak in the company of the accused after they left the Samarat. Hotel. These two witnesses are examined on the point of the accused and Vinayak being last seen together prior to the incident of assault in question. P.W. 2 Suresh Shankar Mardheker, who happens to be the brother of P.W. 9 Udhav, is a panch witness in whose presence the panchanama ( Exhibit - 6 ) in respect of scene of the offence was drawn. P.W. 2 Suresh has also scribed the panchanama (Exhibit - 17 ) in respect of the seizure of the clothes which were allegedly belonging to Vinayak. They were found in burnt condition. P.W. 3 Sakharam Shivram Kamble and P.W. 5 Krishna Kondiba More are panch witnesses, who have scribed the panchanamas ( Exhibits 32 33) in respect of the discovery of a knife and clothes at the instance of accused No. 1. 3. Vinayak was first removed to the Municipal Hospital at Panchgani. He was examined by P.W. 7 Dr. Sou. Vima Raghunathrao. She gave him first aid and advised to remove him to the Civil Hospital. The Medical Certificate in respect of the injuries found on the person of Vinayak is at Exhibit-24. Vinayak was admitted in the Civil Hospital at Satara were P.W. 8 Dr. Anil Mahadev Shinde gave him treatment. P.W. 10 Pakirappa Sahadeo Patil is a Police Sub-Inspector attached to the Panchgani Police Station. He investigated into the offence P.W. 11 Mahadeo Shripati Gavade took over the investigation from P.S.I Patil. After completing the investigation Gavade submitted a charge-sheet. The Chemical Analysers report in respect of various articles which were sent for examination, is at Exhibit-10. This is all the evidence which has been led on behalf of the prosecution. 4. The Case of the Prosecution is as under : Accused No.1 owns stainless steel utensil shop. It is located at a distance of about 15 spaces from the Samarat Hotel which is owned by the Uncle of P.W. 6 Balasaheb Parte. Accused No. 2 was a hotel-boy in a restaurent and accused No. 3 was employed in a bakery in Panchagani. Accused No. 4 is reported to be a relation of the injured P.W. 4 Vinayak. 5. Accused No.1 owns agricultural land at Khinghar which is located four to five Kilometres away from Panchgani. Accused No. 2 was a hotel-boy in a restaurent and accused No. 3 was employed in a bakery in Panchagani. Accused No. 4 is reported to be a relation of the injured P.W. 4 Vinayak. 5. Accused No.1 owns agricultural land at Khinghar which is located four to five Kilometres away from Panchgani. P.W. 4 Vinayak was employed by accused No. 1 Ananda for harvesting the crop of potatoes. He was employed on wages of Rs. 20/- per day. He worked for about six to seven days. The accused did not pay him labour charges. After completion of work, Vinayak demanded his wages from accused No.1 on two or three occasions. Accused No. 1, however, avoided to make payment. This, according to the prosecution, formed the motive for the commission of the instant offence. 6. On the day of the incident i.e. on the 3rd of November, 1988, Vinayak , after completing the days work, came to Panchgani market. He met accused No. 3 in the market. Accused No. 3 requested him to have a cup of tea. The two went to Samarat Hotel. This was at about 8.00 p.m. They proceeded on the first floor of the hotel were accused No. 1 was sitting and consuming liquor in the company of accused No. 4 The accused Nos. 1 and 2 offered liquor to Vinayak. Vinayak told them that he does not drink. vinayak came down to the ground floor. while he was stated on the ground floor a friend of Vinayak by name Raju Prabhale came to him and told Vinayak that it was 8.00 p.m. and that his sister Shanta may be waiting for him for meals. At that time the accused No. I got down from the first floor. Accused No. 1 told Raju that he should convey to his sister that Vinayak would not come to the house for meals. On the ground floor accused No. 1 placed an order for omelet and bread. All the four accused shared the omlet. They all left the hotel at about 8.30 p.m. The accused requested Vinayak that he should accompany them to the Table Land. It was late, Vinayak was reluctant. However, the accused prevailed upon him and they all proceeded to the Table Land. All the four accused shared the omlet. They all left the hotel at about 8.30 p.m. The accused requested Vinayak that he should accompany them to the Table Land. It was late, Vinayak was reluctant. However, the accused prevailed upon him and they all proceeded to the Table Land. They reached there at about 9.00 p.m. They kept on chit chatting on till about 10.30 p.m. Vinayak requested the accused to let him go as it was late. The four accused left the place where they were seated on the pretext of easing themselves. They started talking to each other in a low voice at some distance away from Vinayak All the four accused suddenly came in front of Vinayak. Accused Nos. 2 and 3 held his hands. Accused No. 4 gave a fist blow on his front side. Accused No.1 gave a knife blow on the backside of Vinayak. Someone amongst the accused lifted the T-shirt of Vinayak up to his face. Vinayak could not see and someone inflicted a knife blow on his chest. Vinayak lay on the ground. He pretended to be dead with a fear that he may be assaulted further. One of the accused felt his pulse and confirmed that Vinayak was dead. Accused Nos. 3 and 4 removed the clothes from the person of Vinayak and stripped him naked. All the four accused dragged Vinayak to the corner of Table Land. They lifted him and threw him from the top of the Table Land into the valley. Vinayak fell on a cliff, then on a tree and thereafter on the ground . He became unconscious. He regained consciousness after some time . He was badly hurt and unable to move. His right leg was swollen. He found himself lying in the forest with nobody around. He was unable to get up. He was unable to stand or even sit. He crawled in a direction where he heard sound of truck being unloaded. He proceeded in the direction of tube-light of M.R.A. Centre. He crawled towards the M.R.A. Centre building and cried loudly. One Muthu, a cook of the M..R.A. Centre heard his cries and came towards Vinayak. On seeing him he first got frightened. Vinayak was asking for a glass of water. Muthu went and informed P.W. 1 Thomas who is a Resident Maintenance Foreman of the M.R.A. Centre. He crawled towards the M.R.A. Centre building and cried loudly. One Muthu, a cook of the M..R.A. Centre heard his cries and came towards Vinayak. On seeing him he first got frightened. Vinayak was asking for a glass of water. Muthu went and informed P.W. 1 Thomas who is a Resident Maintenance Foreman of the M.R.A. Centre. Both Muthu P.W. 1 Thomas came with a torch. Vinayak narrated the incident and disclosed the names of the assailants to both of them. They covered his body with a bed-sheet. Thomas went to his residential quarters and made a phone call to the police. After sometime a police constable came on the spot. He enquired with Vinayak and Vinayak disclosed the names of the assailants. Thomas removed Vinayak in his car to the Municipal Hospital. While on the way, they stopped for a while at the Police Station. There, the Station Officer made enquires with Vinayak . At the Municipal dispensary P.W. 7 Dr. Vimal Raghunath Rao gave first aid. The injury certificate issued by Dr. Rao is at Exhibit-24. As per the advise of Dr. Rao, Vinayak was removed to the Civil Hospital at Satara where P.W. 8 Dr. Anil Shinde treated him. 7. The first information report in respect of the incident was lodged by P.W. 1 Thomas . The first information report was lodged at 7.20 a.m. The report is at Exhibit-14. The same was recorded by P.W. 10 P.S. Patil, a Police Sub-Inspector attached to the Panchagani Police Station .He recorded statements of witnesses. He also drew a panchanama regarding scene of offence (Exhibit-16) and a panchanama regarding the seizure of the clothes of Vinayak (Exhibit-17). which were recovered from the Table Land. Further investigation was taken over by P.W. 11 M.S. Gavde, another Police Sub-Inspector attached to the Panchgani Police Station. He drew the panchanamas (Exhibits-32 and 33) in respect of the discovery of a knife and clothes at the instance of the accused No.1. The seized articles were sent to the Chemical Analyzer. The report of the Chemical Analyzer is at Exhibit-10. 8. The accused pleaded not guilty. Their defence was one of total denial. 9. On an appraisal of the evidence led by the prosecution, the learned Judge of the trial Court was pleased to pass an order of conviction and sentence as stated above. The same is impugned in the present appeals. 10. 8. The accused pleaded not guilty. Their defence was one of total denial. 9. On an appraisal of the evidence led by the prosecution, the learned Judge of the trial Court was pleased to pass an order of conviction and sentence as stated above. The same is impugned in the present appeals. 10. Shri Mohite, the learned Advocate appearing for accused No.1 in Criminal Appeal No. 61 of 1990 and Smt. Rao, the learned Advocate appearing for accused No. 3 in Criminal Appeal No. 313 of 1990 have taken me through the entire evidence on record. I have heard both of them, as also Shri Patil, the learned Police Prosecutor, in support of their respective claims. 11. It is, no doubt, true that the incident in question is deposed to by Vinayak who is none else but the victim of the assault in question. He is an injured witness. Ordinarily evidence of such a witness is normally worthy of credence as it rarely happens that an injured would let scoot free his real assailants and falsely implicate innocent persons in the crime. In the instant case, Vinayak has sustained severe injuries. He was thrown down from Table Land in a valley about thousand feet deep. It was only a miracle that saved his life. Hence, on first blush one would be tempted to accept his evidence on its face value and this I was in the first instance inclined to do. However, after I was taken through the details of the evidence on record, I find that it is unsafe to place reliance on the prosecution evidence so as to record a finding of guilt against the accused. My reasons for the above conclusion are as under: 12. Before going into the merits of the prosecution case, I will peep into the background of Vinayak. It would be necessary to go into his antecedents in order to determine whether he can be termed as wholly truthful a witness and whether an order of conviction can safely be passed on his soul testimony . Vinayak has deposed that he hails from village Akoshi in Taluka Wai where he has landed property. His sister Shantabai is married and is living in Panchgani. Vinayak has studied up to 9th standard. He studied upto 5th standard in his village Akoshi and thereafter studied in Mahatma Phule school in Panchgani. He left school in 1978-79. Vinayak has deposed that he hails from village Akoshi in Taluka Wai where he has landed property. His sister Shantabai is married and is living in Panchgani. Vinayak has studied up to 9th standard. He studied upto 5th standard in his village Akoshi and thereafter studied in Mahatma Phule school in Panchgani. He left school in 1978-79. His elder brother by name Shanker is working at Bombay. After 1978-79 he looked after the family agricultural lands for about three or four years. Thereafter his brother Shanker called him to Bombay. So, he went and stayed with his brother at Bombay. He returned to Panchgani only about two months prior to the date of the incident and started residing in the hours of his sister Shantabai. He started working with one Joshi Contractor. He came in contact with the accused during this time i.e. after he returned from Bombay. Thus , according to Vinayak, he was away at Bombay from about 1982-83 till a couple of months prior to the date of the incident took place on 3rd of November, 1988. 13. When subjected to cross-examination, and entirely different picture seems to emerge in respect of the antecedents of Vinayak. While under cross-examination he was asked whether he had committed theft of a hand-card belonging to one Hanmant Kasurde from Maruti Temple at Panchgani and that the said Kasurde had filed a complaint against him he boldly denied the suggestion. He was further asked whether he had kidnapped a daughter of one Washerman, whether a complaint was filed against him, whether he was sentenced to suffer imprisonment and whether he had undergone the sentence of imprisonment , he flatly denied the suggestion .In regard to the first allegation of theft, we have the evidence of P.W. 9 Udhav Mardhekar who has admitted that an offence of theft was registered against Vinayak where it was alleged that he had committee theft of a hand -card . He has further admitted that a case was filed against Vinayak alleging that he had kidnapped a daughter of one Washerman and that Vinayak had undergone sentence of two years in that case. He has further admitted that a case was filed against Vinayak alleging that he had kidnapped a daughter of one Washerman and that Vinayak had undergone sentence of two years in that case. In respect of the second allegation , the accused have produced on record a certified copy of an extract of Sessions Court Register which shows that Vinayak was convicted on 20th of April, 1984 in Sessions Case No. 115 of 1983 for an offence under section 363 and 376 of the Indian Penal Code and section 57 of the Bombay Childrens Act and was sentenced to suffer rigorous imprisonment for two years. It would, thus , appear that for a period after 20th of April , 1984 Vinayak was in jail and this fact he has shrewdly camouflaged by stating that he has gone and was residing at Bombay with his brother Shanker. As far as the defence is concerned, it has suggested that Vinayak was residing in Panchgani for fourteen to fifteen years and that during that period he was serving in a hotel. This, Vinayak has flatly denied. However , if one had regard to the admission which has been elucidated in the evidence of P.W. 9 Udhav Mardhekar and the order of conviction which has been brought on record by producing the certified copy of the entry in the Sessions Court Register, it is apparent that the claim of Vinayak of being Mr. Clean can hardly be believed. In his evidence, Vinayak has claimed that he does not drink liquor. However before the police he is shown to have stated that on the date of the incident he had consumed half a glass of liquor in hotel Samarat. In his statement, which was recorded on the 5th of November, 1988 he had stated "when I requested that I did not want liquor they gave me half glass of liquor". In this context, it is to be noted that when P.W. 1 Thomas first saw Vinayak in a injured condition, he enquired with Vinayak whether he had consumed alcohol. This query by Thomas to a person who was found seriously injured can only be in the context of Thomas finding Vinayak in a state of intoxication. It is possible that he may have been smelling of alcohol and that is what led Thomas to make the above query. 14. This query by Thomas to a person who was found seriously injured can only be in the context of Thomas finding Vinayak in a state of intoxication. It is possible that he may have been smelling of alcohol and that is what led Thomas to make the above query. 14. It would, thus appear from the above evidence that Vinayak has resorted to a clever devise to camouflage his shady antecedents. He has pretended to be in Bombay when in fact he was in jail. He appears to have spoken a lie regarding his movements. He has also given an untrue version when he has sought to make us believe that he does not consume alcohol. This, by itself, would not justify throwing overboard his entire evidence in respect of the incident in question. This however, does put one on guard while appreciating his evidence. His evidence, therefore, requires closer scrutiny before implicit faith can be placed on it for the purpose of recording an order of guilt against the accused. 15. The prosecution has suggested a motive for the commissioning of the instant crime. Vinayak has stated that he had worked on the agricultural land of accused No.1 at Kinghar. He was ployed by accused No. 1 for harvesting the crop of potatoes. He worked for about six to seven days on wages or Rs. 20/- per day. Accused No. 1, however, did not pay him his labour charges though Vinayak demanded the same for two or three times. Accused No.1 avoided to make payment. The prosecution, therefore wants to believe that the accused has sought to do away with Vinayak merely in order to absolve his liability of paying wages which may come to Rs. 120/- or Rs. 140/-. As far as accused Nos. 2 to 4 are concerned, no motive is alleged against them. It is not the case of the prosecution that there was conspiracy between accused No.1 and accused Nos. 2 to 4 to commit the murder of Vinayak. It is not the case of the prosecution that any demand in respect of the wages was made sometime prior to the date of the incident. The demand which is deposed to is at about the time when the labour work of harvesting potatoes crop was over. 2 to 4 to commit the murder of Vinayak. It is not the case of the prosecution that any demand in respect of the wages was made sometime prior to the date of the incident. The demand which is deposed to is at about the time when the labour work of harvesting potatoes crop was over. Hence, I find that the evidence in respect of motive, which is suggested by the prosecution, is of a very weak nature. While under the cross-examination a suggestion was put to Vinayak that accused No.1 does not own agricultural lands, the reply we get from him, is not either in the positive or negative. He had replied that he does not know if accused No.1 does not own any agricultural land. The reply is an evasive reply. If he had really worked on the land of accused No. 1, as he claims to have, one would have expected a positive answer that it is not true that accused No.1 does not own agriculture lands. The answer that he does not know, is an evasive and a hesitating answer. In any case the suggestion that accused Nos. 1 to 4 would resort to such a ghastly crime merely in order to absolve the liability of accused No. 1 to pay wages which amounts to only Rs. 120/-. or Rs. 140/-, is wholly insufficient to end assurance to the case of the prosecution in respect of the commission of the crime which is alleged in the present case. 16. This takes me to the evidence of Vinayak in respect of the events which took-place immediately preceding the incident of assault. According to Vinayak, accused No. 3 met him in the market and requested him join for a cup of tea. Vinayak tried to avoid the invitation by stating that it was already time for taking meals. However, according to Vinayak accused No. 3 prevailed upon him to take a cup of tea. They, therefore, proceeded to Hotel Samarat. It was about 8.00 p.m. Accused No. 3 wanted Vinayak to go on the first floor for taking tea. Accused No. 3 forced him to go on the first floor where accused No. 1 was consuming liquor in the company of accused No. 4 At that time accused Nos. 1 2 offered him liquor but Vinayak told him that he does not drink. Accused No. 3 forced him to go on the first floor where accused No. 1 was consuming liquor in the company of accused No. 4 At that time accused Nos. 1 2 offered him liquor but Vinayak told him that he does not drink. Vinayak got down and sat on the ground floor. At that stage , his friend Raju Prabhale came in and reminded him that it was 8.30 p.m. and his sister Shanta may be waiting for him in her house for meals. At that time all the accused got down from the first floor. Accused No.1 told his friend Raju that he should convey a message to his house that he will not come for meals. Accused thereafter had omlet and bread which Vinayak did not partake. The above evidence is led in order to show that the accused were bent upon taking Vinayak along with them to the Table Land for the purpose of preparing the offence in question. His friend Raju Prabhale has unfortunately not featured in the list of witness who have been examined in the case. We are, thus left only with the evidence of Vinayak in regard to the insistence on the part of the accused in persuading Vinayak to join them in order to facilitate the commission of crime. 17. We next have evidence of two witnesses on the point of the accused being last seen together on the evening of the incident. We have the evidence of P.W. 6 Balasaheb Parte, who is the nephew of the owner of Samarat Hotel. He was on the counter of Samarat Hotel on the evening of the incident. He deposes to the accused being in the company of Vinayak.. We further have the evidence of P.W. 9 Udhav Mardhekar, who is a taxi driver. He also saw Vinayak in the company of the accused after all of them had left Samarat hotel and were proceeding in the direction of the Table Land. This is how for the corroborative evidence goes in respect of the movements of the accused in the company Vinayak. As regards the movements after 8.30 p.m. are concerned, we have no other evidence but the evidence of Vinayak alone. This is how for the corroborative evidence goes in respect of the movements of the accused in the company Vinayak. As regards the movements after 8.30 p.m. are concerned, we have no other evidence but the evidence of Vinayak alone. As far as the evidence of Vinayak in respect of his movements after 8.30 p.m. is concerned, Vinayak does not suggest that force was used to take him to the Table Land. The accused requested him to accompany them for a walk upto the Table Land. Vinayak told them that it was getting late his sister may be waiting in the house. The accused however kept him busy on a particular topic of talk and took him to the Table Land. They were talking about their respective marriages. The talk went on the Table Land for about one and half hour. They reached there by 9.00 p.m. and they kept on talking till about 10.30 p.m. It would thus, appear that Vinayak appears to have gone there willingly, may be at the persecution of the accused. At About 10.30 p.m. Vinayak requested accused No.1 to tell him the time. He told him that it was 10.30 p.m. Vinayak again suggested that is was getting late and he should reach his sisters house. Thereafter, it is case of Vinayak, which case is an improved version in Court and which does not find a place in his statement before the police, that all the four accused went aside on a pretext of easing themselves. They whispered with each other at some distance away. All of them suddenly came in front of him and they held him by both hands. Accused No.1 was on his left side and accused No. 3 was on his right side. Accused No. 4 gave a fist blow on his front side. the above improvement has been got proved in the evidence of Investigating Officer-P.W. 10 Police Sub-Inspector Patil. Then follows the evidence in respect of the main assault which is alleged to have been mounted on Vinayak. According to Vinayak, accused No.1 gave a blow of knife from his back side. Vinayak raised a hue and cry. In cross-examination , Vinayak has clarified that he received the blow of knife from backside on the centre of the back. It was hit forcibly. He raised shouts. The injury started paining. According to Vinayak, accused No.1 gave a blow of knife from his back side. Vinayak raised a hue and cry. In cross-examination , Vinayak has clarified that he received the blow of knife from backside on the centre of the back. It was hit forcibly. He raised shouts. The injury started paining. Accused No.1 was at his backside when he had received that blow of knife. Vinayak has, thereafter, proceeded to state that thereafter someone lifted his shirt up to his face and hence it was not possible for him to see, and someone inflicted a blow of knife on his chest. The injury started bleeding. He was restless. That time all the accused persons sat on his body but he was not in a position to see them. Someone held his left hand to see if he was alive or dead. The above version, again, is an improvement which does not find a place in the police statement. Like the earlier improvement the present improvement has also been brought on record through the evidence of P.W. 10 P.S.I. Patil. It would thus, appear that the evidence in respect of the second stab wound inflicted upon him is an improve version which does not find a place in his police statement. Hence, before the police Vinayak appears to have attributed only one knife blow at hands of accused No. 1 which knife blow was inflicted by accused No.1 from his back side and on the centre of his back. The above version, unfortunately, is not supported by the medical evidence on record. Vinayak has further gone on to state that he was, thereafter dragged from the place of assault to a corner of the Table Land. Due to dragging he had sustained injuries on his back and on the back side of his head. This again is, unfortunately not supported by the medical evidence on record. The conduct of Vinayak at this moment of peril is also noteworthy. He knows that the accused are bent upon killing him to death. He, however, is not shown to have given any resistance. He does not claim to have resorted to even struggling. All that he does is that he pretended to be dead and this he does even when he is lifted and is thrown from the top of the Table Land into the valley. He, however, is not shown to have given any resistance. He does not claim to have resorted to even struggling. All that he does is that he pretended to be dead and this he does even when he is lifted and is thrown from the top of the Table Land into the valley. According to him, he fell on cliff, then on a tree and thereafter on the ground. Now, let us see what are injuries which are found by P.W. 7 Dr. Vimal Rao. She found the following injuries on his person : 1. Stab wound on the left side chest, oblique 2¼ x 1¼ c.m. x bone deep. Chest cavity deep, 4 c.m. below left mid clavicle. Swelling present on surrounding area upto nipple. 2. Simple fracture of right shaft of tibia? fibula upper 1/3 with lower 2/3 and near ankle. 3. Abrasion on left buttock upper ¼ quadrant 4 cms x 4 cms. 4. Stab wound bransverse 2¼ x 1 c.m. x bone deep depth downwards situated on 11th throracic spine aspect. 5. Complains of pains and tenderness over left side upper abdomen. 6. Multiple abrasion on the right anteriro leg upper 1/3. 7. Abrasion on right nostril 2 c.m. x 1½ c.m. 8. Ecconosic 5 c.m. x 3 c.m. oblique on right side forehead just above root of nose. 9. Vertical abrasion 4 c.m. x 1 c.m. on right side forehead 1 c.m. lateral to injury No. 7 10. 8 c.m. x 5½ c.m. verticle abrasion on right lateral chest mid part. 11. Verticle scratch on right lateral thigh just above knee measured 26 c.m. x 2 c.m. aspects. 18. The injuries shows that the same are all on his front side only. No injuries are found on the back or the back side of the head. Hence, it would be clear that the version of Vinayak that accused No.1 had given a stab blow on his back and further version that he was dragged which caused injures both to his back and to the back of his head is belied by the medical evidence on record. As far as his earlier version is concerned, we have noted that he has attributed only one stab blow to accused No.1 and that too on his back. The other blow, the front side is an improved version in Court. As far as his earlier version is concerned, we have noted that he has attributed only one stab blow to accused No.1 and that too on his back. The other blow, the front side is an improved version in Court. In respect of the earlier blow on the back, which version alone is a consistent version, the medical evidence fails to lend assurance. If accused No.1 had, in fact, give a stab blow on the back of Vinayak, which fell on the centre of his back, and which gave him severe bodily pain, as deposed by Vinayak and if Vinayak was dragged which caused him injuries on his back and on the back side of his head, it is surprising that the medical evidence should belie the said version. Hence, I find myself unable to subscribe to the above evidence of Vinayak in respect of the assault alleged to have been inflicted on him by the accused. 19. The prosecution has led evidence in respect of a panchanama (Exhibit 17), in respect of the seizure of the clothes of Vinayak. A chocolate pant and a blue T-shirt in a burnt condition as also two handful of ash was seized under the panchanama. The above evidence is led in order to lend assurance to the evidence of Vinayak that after the accused thought that Vinayak was dead, they stripped him naked and thereafter flung him into the valley. It is the case of the prosecution that the accused thereafter set the clothes of Vinayak on fire. The prosecution, thus, suggest that the act was done by the accused in order to do away with the evidence in respect of the crime. The burnt clothes are Article-3 before the Court. These articles, which are vital, unfortunately, have not been sent to the Chemical Analyser. Hence, there is no evidence in respect of bloodstains or perforations being found on the clothes. What is more surprising is that the clothes are not shown to Vinayak while he was in the witness box and Vinayak has not identified the clothes as belonging to him. It is true that the prosecution has sought to tell us through the evidence of P.W. 6 Balasheb Parte, who was on the counter of Samarat hotel, that Vinayak, at the material time, was wearing a blue T-shirt and a chocolate colour pant. It is true that the prosecution has sought to tell us through the evidence of P.W. 6 Balasheb Parte, who was on the counter of Samarat hotel, that Vinayak, at the material time, was wearing a blue T-shirt and a chocolate colour pant. He has, however, admitted that daily 500 to 600 customers come to the hotel. He has admitted that he does not remember what type of clothes and the colour of the clothes were on the person of any of the accused. It is to be noticed that the panchanama in regard to the seizure of the clothes was held between 9.30 to 10.15 a.m. on the 4th November, 1988 and the police statement of Balasaheb Parte was recorded thereafter on the 5th of November, 1988. In the circumtances, the possibility of the investigating agency suggesting the above statement in respect of the clothes supposed to have been worn by Vinayak cannot be ruled out. Hence, I find that the evidence of the finding of burnt clothes at the scene of offence cannot be connected with the offence in question. Similarly, the evidence of P.W. 6 Balashaheb Perte in respect of the colour of the clothes which were worn by Vinayak on the day of incident fails to inspire confidence so as to connect the finding of the clothes with the incident in question. In view of the above state of affairs, I do not find myself in a position to hold that the above evidence is trustworthy and worthy of evidence. This is as far as the main incident in question is concerned. 20. Let us now proceed to the events which took place after Vinayak was flung from the Table Land. Vinayak, with severe injuries on his person and in a naked state, found himself lying in pain near the M.R.A. Centre. His cries attracted the attention of one Muthu who was a cook. Muthu in turn, went and informed P.W. 1 Thomas who is the Maintenance Foreman of the M.R.A. Centre. Vinayak disclosed the incident to Muthu as also. Thomas According to Vinayak both enquired about his name and address and how he had sustained the injuries and he narrated the incident to both of them. He also told them the names of the assailants. Vinayak disclosed the incident to Muthu as also. Thomas According to Vinayak both enquired about his name and address and how he had sustained the injuries and he narrated the incident to both of them. He also told them the names of the assailants. After sometime a police constable came to the spot and he made enquiry as to how he sustained the injuries and he told the names of his assailments. He was brought to the hospital by police constable G.E. Ingale Buckle No. 1425. This is recited in the medical certificate (Exhibit 24) which is issued by P.W. 7 Dr. Rao. Unfortunately, neither the police constable Ingale not Muthu are examined in the case. P.W. 1 Thomas removed Vinayak to the hospital in his vehicle. He has stated that on the way to the hospital Vinayak was taken to the police station for about two to three minutes. He has further stated that the investigating officer made enquiry with Vinayak P.W. 7 Dr. Rao has stated that when Vinayak was brought to the Municipal Dispensary it was 5.15 a.m. According to the doctor, Vinayak was conscious and he was in a position to give the history. At about 6.30 a.m. Vinayak was removed to the Satara Civil Hospital. At the Satara Civil Hospital, Vinayak was admitted by P.W. 8 Dr. Anil Shinde. He was admitted at about 9.50 a.m. On admission the patient gave the history. The above evidence thus discloses that Vinayak was found conscious and in a position to give information both at the Municipal Dispensary at Panchgani and also in the Civil Hospital at Satara. If Vinayak had disclosed the names of assailants to Thomas as also to police constable Ingale and also the investigating office during the 2 or 3 minutes query which was made on his way to the hospital, it is surprising that the names of the assailants should not surface until the lodging of the first information report by Thomas which was recorded only at 7.20 a.m. As far as the F.I.R. (Exh. 14) is concerned, it bears an endorsement that it was lodged at 7.20 a.m. However P.W. 1 Thomas in his evidence has stated that he gave the information by about 8.00 or 9.00 a.m. Now what is worst for the prosecution is an admission which is elucidated in the last question put to him in the cross examination. 14) is concerned, it bears an endorsement that it was lodged at 7.20 a.m. However P.W. 1 Thomas in his evidence has stated that he gave the information by about 8.00 or 9.00 a.m. Now what is worst for the prosecution is an admission which is elucidated in the last question put to him in the cross examination. There, P.W. 1 Thomas has admitted that, he himself had not stated the names of the assailants of Vinayak to the investigating officer. Hence, as far as Vinayak is concerned, he does not claim that he informed the names of his assailants to the investigating officer. The first informant - P.W. 1 Thomas - also claims that he did not disclose the names of the assailants to the investigating officer. Contrary to the evidence P.W. 10 P.S.I. Patil has asserted that the names of the accused were mentioned by P.W. 1 Thomas. As far as police constable Ingale as also Muthu are concerned, they are not examined in the case and we yet have the accused named as the assailants in the F.I.R. (Exhibit-14). Though the F.I.R. was recorded on the 4th of November, 1988 the police statement of Vinayak was recorded only on the 5th November, 1988. The delay in recording his statement is sought to be explained by Vinayak by stating that while he was in the Municipal Dispensary at Panchgani he became unconscious and when he regained consciousness he found himself in Civil Hospital at Satara. I have already found that the evidence of both the doctor falsifies the above claim as both doctors have found Vinayak to be conscious. Neither of them have supported Vinayak when he stated that he became unconcious. Hence, the explanation put forth by the prosecution to explain the delay in recording the statement of Vinayak is far from being satisfactory. 21 We next have the evidence in respect of discovery which is sought to have been made at the instance of the accused No.1. The panchanama in regard to the statement leading to the discovery is at Exhibit-32 and the discovery panchanama is Exhibit-33. Under panchanama, accused No.1 discovered a knife and clothes. However, both the panch witness P.W. 3 Sakharam Kamble and P.W. 5 Krishna More, have turned hostile. The panchanama is dated the 7th December, 1988. The panchanama in regard to the statement leading to the discovery is at Exhibit-32 and the discovery panchanama is Exhibit-33. Under panchanama, accused No.1 discovered a knife and clothes. However, both the panch witness P.W. 3 Sakharam Kamble and P.W. 5 Krishna More, have turned hostile. The panchanama is dated the 7th December, 1988. Prior to of that the clothes of Vinayak are seized under panchanama (Exhibit 17) on the 4th of November, 1988. The Muddemal Articles are sent to the Chemical Analyser as late as on the 3rd January, 1989. This is reflected from the report of the Chemical Analyser at Exhibit-10. During the interrugnum period, the clothes must have been lying at the police station. There is no evidence that the above clothes and knife were kept under seal. Moreover, the clothes of Vinayak have not been sent to the Chemical Analyser. The police constable who carried the muddemal articals to the Chemical Analyser has not been examined. Even the forwarding letter, which was sent to the Chemical Analyser, had not been brought on record. Hence, no evidence has been let to establish the identity of the muddemal articles which were seized and the articles which were analysed and in respect of which the C.A. Report (Exbhit-14) relates. Hence, the evidence of discovery fails to lend assurance to the case of the prosecution. 22. As far as accused No. 3 is concerned, two overt acts are attributed to him at the time of assault in question. He is supposed to have held the right hand of Vinayak when accused No.1 inflicted blows. As far as the overt act of holding the right hand is concerned, the same is an improved version of Vinayak. P.W.10 P.S.I. Patil has admitted that Vinayak had not mentioned in his police statement that accused No.3 held Vinayak by his right hand. The above evidence of Vinayak, therefore fails to inspire confidence in regard to the complicity of accused No.3. 23. For the foregoing resons I find myself unable to subscribe to the view expressed by the learned trial Judge. I do not find that the evidence on record is trustworthy or worthy of credance. I find it impossible to place reliance on the said evidence for the purpsoe of giving a finding that the prosecution has proved its case beyond resonable doubt. I do not find that the evidence on record is trustworthy or worthy of credance. I find it impossible to place reliance on the said evidence for the purpsoe of giving a finding that the prosecution has proved its case beyond resonable doubt. The appellants/original accused Nos.1 and 3 are, therefore, entitled to an order of acquittal. 24. I now find that I have given a finding that the prosecution has failed to prove its case against the accused. I further find that the present appeals have been filed only by accused Nos.1 and 3. Accused No.2 has not preferred any appeal. However, I find from the record that he has already undergone a sentence of about 4 years and 8 months. A short question which arises for my consideration is whether accused No.2 should be made to suffer the remainder of his sentence only on the ground that he has not preferred an appeal. After all when an accused prefers an appeal he merely brings to the notice of the Appellate Court a judgment and order that is recorded by the trial Court. He complains of injustice. He prays for justice The Appellate Court is, thereafter, required to proceed to examine the legality of the judgment and order. impugned in the appeal. In the instant case I have found that the prosecution has failed to prove its case against any of the accused. Accused Nos. 1 and 3 have preferred the present appeals. Accused No. 2 has not preferred an appeal The question is whether accused No. 2 should be treated differently than accused Nos. 1 and 3 merely because accused No. 2 has failed to prefer an appeal. The failure to prefer an appeal may be for numerous reasons. It could be illiteracy, poverty could be one of the reasons. In case of (Chabi Nath v. Sate of U.P. and Raj Nath v. State of U.P.) 1, A.I.R. 1988 Supreme Court 345, the Supreme Court was dealing with the appeal arising out of Judgment dated 10-12-1984 of the High Court of Allahabad in Criminal Appeal No. 14 of 1979 on its file, dismissing the appellants appeal and affirming the conviction under section 396 I.P.C. and sentence of rigorous imprisonment, In that case one of the accused did not file appeal against the said judgment and order of conviction and sentence. While allowing the appeals of the appellents in that case, the Supreme Court observed that " the conviction and sentence of the non-appealing accused, namely, Pheku Singh cannot also be sustained consistent with the findings in and the result of these appeals as the finding are interdependent and inextricably integrated.The conviction and sentence of pheku singh are also set aside and the said Pheku Singh, the accused No.3 in S.T. No. 168 of 1974 is also directed to be set at liberty forthwith." 25. In my judgement, having found that the prosecution has failed to make good the offence in question, accused N. 2 also would be entitled to the same relief as being given to accused No. 1 and 3 even though accused No. 2 may not have preferred an appeal. In the circumstances, I hold that all the three accused namely accused Nos. 1, 2 and 3 are entitled to an order of acquittal. 26. For the foregoing reasons the appeals are allowed. The impugned judgment and order of conviction and sentence passed by the learned additional Session Judge, Satara on 27th of December 1989 in Sessions Case No. 33 of 1989, convicting the accused Nos. 1, 2 and 3 namely Ananda Sakharam Jadhav, Bansi Bandu More and Suresh Pandurang Jadhav, under section 307, 323 and 504 read with section 34 of the Indian Penal Code is quashed and set aside and they are acquitted. The bail bonds of accused No. 1 who is on bail shall stand cancelled. Accused Nos. 2 and 3, who are reported to be in custody, shall be set at liberty forthwith unless required in some other cases. Appeals allowed