K. J. VAIDYA, J. ( 1 ) KESHU Badha and 7 others, by this Appeal have brought under challenge the impugned judgment and order dated 30-6-1987, rendered in sessions Case No. 110 of 1986, passed by the learned Additional Sessions Judge, bhavnagar, wherein on their coming to be tried for the alleged offences punishable under Secs. 302, 323, 147, 148, 149 and 114 of the Indian Penal Code were ultimately convicted for the same and sentenced to the imprisonment for life, and other minor punishments. 1. 1. It may also incidentally be further stated that pending hearing and final disposal of this appeal, the appellant No. 6 Jivraj Keshu died on 26-12-1989, regarding which the Death Certificate issued by Bhavnagar Municipal Corporation has been produced on the record, and accordingly his appeal stands abated by this time. ( 2 ) IN substance, according to the prosecution, the alleged incident in question wherein Mulji Raja was done to death and other two persons, viz. , PW-5 Raja Bhikha and his wife PW-2 Bhaniben came to be injured, who happen to be the father and mother respectively of the deceased Mulji took place on 18-5-1986 at 2-15 P. M. in the Chawl of Mahalaxmi Mills at Bhavnagar, when Keshu Badha and his 7 associates armed with lethal weapons like sword, dharia, sticks and pipes, formed an unlawful assembly and with common object mounted deadly attack upon Mulji raja and the two injured persons, namely, PW-2 and PW-5 bringing about the death of one and injuries to two others. Further, according to the prosecution, this incident was eye-witnessed in all by five prosecution witnesses, they are PW-1 Nanji Patta, pw-3 Magan Ganda, PW-4 Premji Harji, PW-2 Bhaniben, and PW-5 Raja Bhikha; the last two being the injured witnesses. The prosecution case, as it gets further unfolded from the evidence of PW-1 Nanji Patta (the original informant) is to the effect that he was having his house in Mahalaxmi Mills Chawl and also having a pan-Galla under the name "kailash Pan House" near his house. On 18-5-1986, when he was just proceeding towards the said Pan Galla, Mulji Raja who happens to be his cousin-brother came to his shop for taking MAVA (Pan-masala ). On 18-5-1986, when he was just proceeding towards the said Pan Galla, Mulji Raja who happens to be his cousin-brother came to his shop for taking MAVA (Pan-masala ). At that time, a group of about 8 persons came from the opposite direction armed with different weapons, wherein accused No. 1 Keshu Badha and accused No. 8 Jesing Trikam were armed with dharia, while accused No. 2 Premji Malji, accused No. 5 Nagji vashram, accused No. 6 Jivraj Bhada were armed with iron pipe, while accused no. 3 Meghji Jetha was armed with sword, while the rest of the accused No. 4 jivraj Keshu, and accused No. 7 Dinesh Malji were armed with sticks. On seeing this group of 8 persons menancingly rushing towards him, Mulji Raja to save his life ran towards his house. He was chased by all the eight accused persons, and at the place near the Otta of one Usmanbhai, (not examined) the accused No. 1 overtaking him gave a dharia blow on the left shoulder of Mulji Raja, and thereafter, all other accused persons started attacking him at random with whatever weapons they had in their respective hands, as a result, Mulji Raja started bleeding and dropped unconscious on the ground. At that time, out of the said 8 accused persons, one of them exhorted the others by saying "nanji is standing here. Finish him". Hearing this, according to this witness Naji Patta, he too ran towards his house to save his life and informed his father about the incident in question. Thereafter, he and his father returned to the scene of the offence. At that time, Premji Patta (not examined), pw-4 Premji Harji and PW-3 Magan Ganda had already arrived at the scene of the offence. On reaching the scene of offence, he saw his uncle PW-5 Raja Bhikha lying bleeding from his head injury and his aunt PW-2 Bhaniben was also found lying there with the blood oozing out of the hand. Thereafter, after about five minutes on PW-6, Aatabhai Bhikha on coming to the place of offence, he was informed about the incident. Further, when they reached near the scene of the offence, all the accused persons were still standing. Thereafter, all the three injured, viz. , Mulji raja, Bhikha Raja and Bhaniben were removed to the hospital. Thereafter, after about five minutes on PW-6, Aatabhai Bhikha on coming to the place of offence, he was informed about the incident. Further, when they reached near the scene of the offence, all the accused persons were still standing. Thereafter, all the three injured, viz. , Mulji raja, Bhikha Raja and Bhaniben were removed to the hospital. According to Nanji patta, the incident in question took place because of the political rivalry which arose out of the election of Bhavnagar Municipal Corporation, wherein on the one hand accused No. 1 Keshu Badha and on the other hand PW-6, Aatabhai Bhikhabhai uncle of the deceased Mulji Raja, were the rival candidates and Keshu Badha lost the election. It is because of this heart-burning and resultant bad blood that the present incident took place. On the basis of these allegations, Nanji Patta filed F. I. R. (Exh. 87), which came to be recorded at "a" Division Police Station, Bhavnagar, for the aforesaid alleged offences. After the investigation was over, the accused persons came to be charge-sheeted before the Sessions Court at Bhavnagar, to stand trial for the aforesaid alleged offences. ( 3 ) AT trial, the respondents pleaded not guilty and claimed to be tried. In his statement under Sec. 313 of the Code, in particular, according to appellant-accused no. 1 he was staying in Chawl of Mahalaxmi Mills since his birth and was conducting bal Mandir there. Further, since Khimji Raja (brother of the deceased Mulji Raja) and others were having a liquor-den in his locality, with a view to see that the children of his area do not come under the bad influence of liquor, he had requested khimji Raja and others to stop the said illegal activity. Further, according to appellant No. 1 as he was often getting raided the houses of Khimji Raja and others, was an eyesore in the eyes of opponents. On the date, time and place of the incident in question, when he was going to his maternal uncles house, at that time, Mulji raja and some ten other people were found sitting on the bench of kailash Pan house and they immediately surrounded him and started beating. On the date, time and place of the incident in question, when he was going to his maternal uncles house, at that time, Mulji raja and some ten other people were found sitting on the bench of kailash Pan house and they immediately surrounded him and started beating. On his raising shouts, appellant No. 2 Premji Malji came rushing, whereupon the said persons also started beating him, as a result of this, the persons residing in the vicinity came running with the arms and collected there and because of them only, he and Premji malji were saved. Further, according to appellant-accused No. 1, several cases have been filed against the prosecution witnesses and in support of this defence version, he has also examined two defence witnesses, viz. , (1) DW-1 Jiva Tida, and (2) DW- 2 Hasmukh Mansukh, who happens to be Police Constable at "a" Division Police station, and has produced on record the Crime Register showing various offences under the Prohibition Act and other Acts registered against the deceased Mulji Raja, raja Bhikha and others. Virtually on the same lines as that of the appellant-accused no. 1, accused No. 2 Premji Malji has given his statement. ( 4 ) THE trial Court accepting and relying upon the prosecution evidence brought on the record, convicted and sentenced all the appellants as stated in detail in above para-1 of this judgment, giving rise to the present appeal. ( 5 ) HEARD Mr. K. J. Shethna, the learned Advocate appearing for the appellants, mr. S. R. Divetia, the learned A. P. P. for the State instructed by Mr. Bhargav Bhatt, the learned Advocate appearing for the original complainant. ( 6 ) NOW having carefully gone through the entire prosecution evidence and defence version brought on the record, two circumstances prima facie emerge as undisputable. They are, on the aforesaid alleged date, time and place on the one side Mulji Raja was done to death alongwith two others, namely, PW-2 and PW-5 were injured and on the side of accused appellant-accused Nos. 1 and 2 who were also injured regarding which cross-complaint was filed against the prosecution witnesses. They are, on the aforesaid alleged date, time and place on the one side Mulji Raja was done to death alongwith two others, namely, PW-2 and PW-5 were injured and on the side of accused appellant-accused Nos. 1 and 2 who were also injured regarding which cross-complaint was filed against the prosecution witnesses. The net result accordingly in our view is that the whole episode, dispute between the rival allegations trembles quite in balance and lies within the narrow compass, so as to find out as to how and in what manner the incident in question took place. Did the incident take place in the manner as alleged by the prosecution witnesses or did it take place as suggested by the defence version. In short, out of the two, which of the party was aggressor. In fact, having gone from A to Z of the record, the Court is befaced with two sets of circumstances competing neck to neck with each other. The one set of circumstances as projected by the prosecution which consists of version given by four eye-witnesses, out of which two are injured, sought to be corroborated by the F. I. R. (Exh. 87) and to some extent by medical evidence consisting that of PW-9 Dr. Bhanushanker Joshi and PW-10 Dr. B. D. Patel and p. M. Notes and various medical certificates. As against the same, the second set of circumstances as projected by the defence which consists of (i) the defence version given by the accused Nos. 1 and 2 at Exhs. 3 and 4 their statements under Sec. 313 of the Code narrating how they came to be assaulted by some of the prosecution witnesses and further how the said witnesses in turn came to be attacked by the persons of the locality resulting into death of Mulji Raja and injuries to PW-2 and pw-5, (ii) election rivalry; (iii) medical evidence of PW-10 who examined them and issued the medical certificates at Exhs. 39 and 40; (iv) Dying Declaration of pw-5 recorded by PW-11, Executive Magistrate, the bare reading of which makes serious in-roads on the credibility of the prosecution witnesses in particular that of pw-5 creating doubt regarding the real assailants and the genesis of the offences; (v) the complaint Exh. 64 given by the accused No. 1 against all the present prosecution witnesses etc. 64 given by the accused No. 1 against all the present prosecution witnesses etc. , alleging that they were armed with various weapons like sword, dharia, iron pipes, etc. and having attacked him and Premji Malji caused them injuries. The said complaint Exh. 64 was recorded by PW-1, A. D. Chaudhary; (vi) Police yadi (Exh. 43) addressed to PW-11 B. J. Mehta, Executive Magistrate stating therein that PW-5 Raja Bhikha was injured in "maramari" near his house and was admitted in the hospital requesting him to record the Dying Declaration in Hospital at Bhavnagar, who ultimately recorded the Dying Declaration at Exh. 44 wherein pw-5 named Meghji Jetha, Mulji Jiva, Keshav Mani, Kanji Trikam, Mala Prema, etc. , as having assaulted him with dhoka (small stick) [note : except the accused nos. 3, 6 and 8, though others names are given in the so-called Dying Declaration, strangely enough, none of them have been prosecuted and altogether, other persons are named in the charge-sheet. (vii) Exh. 48 entry in the Police Station Diary recorded in 18-5-1986 on the basis of the information received from the Medical officer to the effect that in Mahalaxmi Mills Chawl, in maramari three persons have received injuries, in which no names of the accused have been disclosed. Over and above, the aforesaid two sets of circumstances, one in favour of the prosecution and another one in that of the accused emerging from the record, while appreciating the evidence, a special note is also required to be taken of four equally important circumstances, viz. , firstly, that except the tainted evidence of related, partisan, inimical witnesses, no other independent witnesses have been examined by the prosecution (though of course, it is equally true that many a time in cases of fraction fights no independent person even if he witnesses the incident dares not to come forward to give his statement before the police quite apprehending incurring wrath and displeasure of accused persons consequently risking touble at his hand in future. ). Secondly, the present incident is the outcome of an undisputed political rivalry which arose out of the defeat of the accused No. 1 in Bhavnagar Municipal Corporation, wherein Aata Bhikha was elected. ). Secondly, the present incident is the outcome of an undisputed political rivalry which arose out of the defeat of the accused No. 1 in Bhavnagar Municipal Corporation, wherein Aata Bhikha was elected. Thirdly, though the prosecution witnesses have involved as many as 8 accused, out of which 5 were armed with hard and blunt substances like iron pipe and sticks, there is no medical evidence worth the name to corroborate to the said effect, and fourthly, Mulji Raja (deceased) and his party was involved in illicit bootlegging activities and because the police had often carried out raids at their premises at the instance of the appellant-accused No. 1, the relations between parties stood further strained, embittered and acromonious. ( 7 ) HAVING fully posted ourselves with the aforesaid graphic back-drop we now proceed to find out whether the learned trial Judge was in any way justified in recording the order of conviction and sentence under Sec. 302 read with Secs. 143, 147, 148 and 149 of the I. P. C. ? In the process, the first major blow to the prosecution case and thereby to the impugned order of conviction delivered by none else than PW-5, an injured witness, whose dying declaration came to be recorded at Exh. 44. For the reasons we would be discussing hereafter, there is not even the scintilla of doubt in our mind that this witness, though injured has indeed no regard for the truth and is a liar outright having exhibited the most wretched tendency to implicate as many as 8 persons before the Court out of which it was only accused nos. 1, 6 and 8 were named in the Dying Declaration Exh. 44 as the assailants. Under the circumstances, merely because the witness claims to be injured, that does not ipso-facto and necessarily mean that he is all truth personified, and accordingly without any reservations his entire evidence should be accepted by the court as a gospel truth more particularly when he is shown to be inimically disposed belonging to the rival fraction and has deliberately tried to involve innocent accused persons. In fact, Exh. In fact, Exh. 44 brought on the record is a sad commentary on the investigation and the Investigating Agency as despite the fact the name of other persons were shown also as accused persons in the said Dying Declaration, they have been dropped as accused persons while filing the charge-sheet for the reasons best known to the Investigating Agency. Such dubious investigations sidelining persons named as accused in Dying Declaration needs to be condemned and inquired into by D. S. P. of the area and take appropriate action if he is found to be dishonest. We are quite conscious of the fact that Exh. 44 ceases to be a Dying Declaration and loses all its evidentiary value moment we find PW-5 has survived. Nonetheless treating the said Dying Declaration at Exh. 44 as a previous statement, we in overall interest of justice cannot ignore, when it to quite great extent falsifies PW-5 more particularly when neither PW-11, the Executive Magistrate nor PW-5 has been declared hostile on this count. For the purposes of convicting the accused we are certainly not entitled to look at it, but at the same time, once we find that an ugly attempt has been made to falsely implicate the accused, it becomes the bounden duty of the court to take into consideration the contents of said Dying Declaration Exh. 44 for whatever worth it is to doubt and discard the credibility of PW-5. In this view of the matter, in one breath the learned trial Judge having held that the evidence of PW-5 was not dependable, in the second breath, quite strangely he has slipped into an error in relying upon the same for convicting the accused is a phenomena indeed quite irreconciliable and therefore, incredible. There appears to be clear confusion in the mind of the learned trial Judge as the evidence of PW-5 cannot be said to be the evidence where grain and chaff has got mixed up together which can be separated by some honest judicial efforts. In fact, here is the evidence where sugar and salt both have mixed and intermingled and it is indeed impossible to disengage the truth from the manifest falsehood it contains. We have also seen the injuries to PW-5. In fact, here is the evidence where sugar and salt both have mixed and intermingled and it is indeed impossible to disengage the truth from the manifest falsehood it contains. We have also seen the injuries to PW-5. By no stretch of imagination, it can be said to be that serious which necessitated the Investigating Officer to send a Yadi to the Executive Magistrate for the purpose of recording the Dying Declaration. The most ridiculous part of the entire story as deposed by this witness rather is that he was lying at the place of the incident upto 5-30 to 6-00 P. M. and he was taken by auto-rickshaw by Govind, whereas the injury recorded by Dr. Patel shows that all the three injured were brought to the hospital by PW-1 Nanji at 4-00 P. M. This part of the story by PW-5 is patent blatant, lie and requires to be condemned outright and discarded. A witness who has an audacity to falsely involve as many as five other innocent persons over and above the accused Nos. 1, 6 and 8 and, that too in a serious charge of murder, cannot expect any credence or regard from this Court. Rather to put it positively and quite emphatically, his evidence is required to be condemned as a liar trying to implicate the innocents. In fact, but for the fact that the alleged offence is of the year 1986 and much water has flown thereafter, in the facts and circumstances of the case, we were quite inclined to issue a notice of perjury for giving false evidence before the Court. ( 8 ) THAT takes us now to another injured witness PW-2 Bhaniben who happens to be the mother of the deceased Mulji Raja. She has quite interestingly and surprisingly attributed different weapons in the hands of the accused persons and the blows delivered by them. According to her, when she tried to save her son Mulji raja, she received the injury by means of Dharia. This is ex-facie negatived by the medical evidence brought on the record which shows that she has received C. L. W. which was possible by hard and blunt substance. According to her, when she tried to save her son Mulji raja, she received the injury by means of Dharia. This is ex-facie negatived by the medical evidence brought on the record which shows that she has received C. L. W. which was possible by hard and blunt substance. A lady who claims a photogenic memory of attributing weapons and role to each accused, would not have ordinarily failed to say whether it was a blunt side or the sharp side of Dharia by which she came to be injured. In fact, we would have perhaps accepted her evidence when she said that she was given blow with Dharia with blunt side, but we reject the same only on the ground that if she can be particular in regard to the accused and the weapons, we fail to understand how she was not that particular as regards the blow given to her with what side ? She is further belied by her own evidence when she deposed that accused No. 2 gave a thrust with a sword in his hand. If indeed the thrust was given to her by a sword, in our opinion, it would have surely created a incise wound. We have seen her injuries noted in the medical certificate Exh. 3. They are simple Hematoma, abrasion and C. L. W. and there is nothing to indicate as regards the same could be caused by sharp-weapon like sword or the age of the injury to come to the definite conclusion that these injuries were received during the course of the alleged incident. With this background, it is indeed not possible for us to place any reliance upon the evidence of PW-2. ( 9 ) THAT takes us now to the evidence of PW-1 Nanji Patta. He is undoubtedly related to Mulji Raja being a cousin-brother and accordingly sharing hostility with the deceased against the accused persons. He is an informant in this case. We make it clear that we do not reject his evidence merely because he is related to the deceased mulji Raja. On close scrutiny, he has failed to impress us as an honest and truthful witness. It is true that F. I. R. (Exh. He is an informant in this case. We make it clear that we do not reject his evidence merely because he is related to the deceased mulji Raja. On close scrutiny, he has failed to impress us as an honest and truthful witness. It is true that F. I. R. (Exh. 87) came to be recorded within the shortest possible time and in a given case, if the F. I. R. is filed promptly (i) naming all the accused persons, (ii) attributing weapons to them, (iii) role played by each one of them, (iv) on what particular part of the body blow was given, (v) who were the other witnesses present at the time of the incident and (vi) the said F. I. R. is dispatched in the right earnest to the nearest learned Magistrate under Sec. 157 of the Code, this set of intrinsic circumstances at the time of the framing charge or at the time of considering bail application of accused and also even at the time of admission before this Court at times lends great strength to the "prima facie nature" of the prosecution case being the earliest version ruling out possibility of concoction. Ordinarily Courts are quite inclined to give due credence and preference to such f. I. R. s, but whether to accept the same at the time of final hearing that ultimately depends upon other attending facts and circumstances of each case. This sort of F. I. R. standing by itself cannot be a straight-jacket universal formula to always adjudge a witness as honest, truthful witness. He may be, may not be. The reason is where a witness belongs to a fraction, then in that case, merely because the names of the witnesses are disclosed alongwith the weapons and role played by them, causing injuries to the concerned person in a given case, the probability also cannot be ruled out of the ingenious way in falsely implicating many innocent persons as accused persons of the rival fraction. Under such circumstances, before accepting or rejecting such sort of F. I. R. , the Court is required to be extremely careful and circumspect and should not accept the contents of the same at its face value so as to blunder away in its ultimate appreciation resulting into patent injustice to the accused. Under such circumstances, before accepting or rejecting such sort of F. I. R. , the Court is required to be extremely careful and circumspect and should not accept the contents of the same at its face value so as to blunder away in its ultimate appreciation resulting into patent injustice to the accused. In otherwords, after close scrutiny contents of such F. I. R. s should be accepted. The learned trial Judge is undoubtedly right when he said in the judgment that merely because PW-1 was a cousin-brother of deceased Mulji Raja, his evidence cannot be discarded on that count alone. But at the same time, if and when his evidence is tested in the touchstone of probability, it is found to be little risky and hazardous, the Court should immediately cry halt to itself there and there only and should not stretch an inch further making and throwing itself as a bridge available to the prosecution to get across the gap to secure the order of conviction. Graver the crime, strictest is the duty and accountability of the Court to see that it does not become a victim to the folly of the first impression and haste of teenager misunderstanding mere infatuation as love. Not only that but the evidence of PW-1 also sounds little unnatural because a witness having deposed before the Court that one of the accused persons said that Nanji Patta is here, let he be not spared, and still if he claims a providential escape and remain uninjured, not a scratch even, though admittedly at distance of merely 10 to 12 feet away. In view of existing enmity, the exhoration in heat and anger was bound to make other accused surcharge with passion and orgy of crime to take them in sweep to assault PW-1. And still if he escapes uninjured, it is simply improbable rather unbelievable in the facts and circumstances of the case. The matter does not simply rest here. The most astounding part of his story is that even after going home, informing the father, when he returned to the scene of the offence, all the accused were waiting as if to welcome him and did not injure him. Ordinarily, the psychology of the accused person is too well known to be stated here, viz. The most astounding part of his story is that even after going home, informing the father, when he returned to the scene of the offence, all the accused were waiting as if to welcome him and did not injure him. Ordinarily, the psychology of the accused person is too well known to be stated here, viz. , that once the crime is committed, he will love to have wings to escape as fast and as far away as he could from the scene of the offence rather than to remain there as breved firstly to be witnessed by and secondly, what ought we not know risking overpowered by the group of injured and other persons appearing on the scene of offence. This is so natural because ordinarily once the fume and fury, the spirit and passion of vengeance bubbles out in act and stands exhausted, the empty spirited accused ordinarily gets filled and gripped by the over-powering sense of guilt, fear complex and strong, impelling urge to flee away from the scene of the incident. This squeezes him of all the strength he possessed prior to the commission of offence to stand at the scene of incident and accordingly would spare nothing and spend whatever reserve he has to escape. Thus, this conduct of the accused not to leave the place of incident immediately totally belies the ordinary human conduct which leaves us with no doubt that the PW-1 prima facie appears to have been stage-managed by the Investigating Agency for the purposes of giving good shape and show to the prosecution case to make the prosecution case quite presentable enough for acceptance thinking perhaps that the Courts are gullible like a child and would accept any sort of lollypop concoction. In this view of the matter, we have indeed no alternative but to discard the evidence of PW-1 who has posed as apostle of truth but on screening found to be stinking liar. ( 10 ) THAT takes us now to the another eye-witness PW-3 Magan Ganda. He is the resident of Mahalaxmi Chawl, the place where the incident in question took place. As such, there is nothing on the record to show that he had any family relations with Mulji Raja, except the suggestion in the cross-examination that he had borrowed rs. ( 10 ) THAT takes us now to the another eye-witness PW-3 Magan Ganda. He is the resident of Mahalaxmi Chawl, the place where the incident in question took place. As such, there is nothing on the record to show that he had any family relations with Mulji Raja, except the suggestion in the cross-examination that he had borrowed rs. 15,000/- from Khimji Raja - brother of the deceased, but at the same time, in para 4 of his cross-examination he has admitted that three days prior to the incident, there was a raid carried out by Dy. S. P. and he was arrested. This in a way suggests his connection with the deceased Mulji Raja, as a bird of the same feather, who was also a bootlegger of the area. Not only that but the learned trial Judge in para 18 of the judgment has rightly expressed doubt regarding his presence at the time of the incident when he was constrained to observe that on examining the evidence of PW-1 and PW-2, his presence at the scene of the incident is rendered quite doubtful. In this view of the matter, though PW-3 poses himself to be an eye- witness, looking to the doubtful nature, his evidence required to be discarded from being taken into consideration. ( 11 ) PW-4 Premji Harji is the last of the five eye-witnesses whose evidence have been discussed above. According to the learned A. P. P. atleast he is and can be described as an independent witness and that his presence near the scene of offence was quite natural as he was serving in "kailash Pan House" belonging to PW-1. Now undoubtedly while appreciating the evidence of any witnesses the first point which requires to be cleared off by the trial Court is whether his presence at the scene was natural or was he a chance witness. Now for the purpose of ascertaining this what the Court is required to find out is whether the place where the incident took place is anyway near his place of resident or service, or business and further at the time when the incident took place he ordinarily could have been present there. Now for the purpose of ascertaining this what the Court is required to find out is whether the place where the incident took place is anyway near his place of resident or service, or business and further at the time when the incident took place he ordinarily could have been present there. Thereafter, the Court is required to be on further guard that merely because the presence of the witness is established as natural that does not necessarily mean the account given by him before the Court is honest and truthful still he passes the further acid test of his credibility. Bearing in mind this principle we do not feel safe to straightway accept and rely upon the evidence of PW-4 merely on the ground that his presence at the time and place of offence was natural being servant of PW-1. In fact, doubt regarding his credibility gets further strengthened when in para 3 of his cross-examination wherein with a view to see that he impresses the Court as a person not serving with PW-1 at the time of incident, he quite cleverly went on to depose that he was serving with PW-1 from 12/12/1986 only and before that he was serving in some plastic factory, for which he has not produced anything on the record. The idea behind this ingenious way of throwing dust in the eye of the Court blurring the judicial vision is aimed to clean wash his image and pass on as an independent witness, showing no link, relationship at the time of the incident with PW-1 and thereby with the Mulji Raja which took place on 18-5-1986. With experience, it is indeed not difficult for the Court to lift the veil and see the true face of the witness whether he is a liar or truthful. In this view of the matter, we feel that it would be quite risky and hazardous to accept the evidence of PW-4 when the entire prosecution story, ultimately, has impressed us as stage-managed not free from doubt. ( 12 ) THAT takes us now to the medical evidence that of PW-10 Mr. B. D. Patel, who examined the deceased Mulji Raja, PW-2, PW-5 and accused Nos. 1 and 2. It appears that on examining Mulji Raja, PW-10 has noted as many as 15 incised wounds on various parts of the body. ( 12 ) THAT takes us now to the medical evidence that of PW-10 Mr. B. D. Patel, who examined the deceased Mulji Raja, PW-2, PW-5 and accused Nos. 1 and 2. It appears that on examining Mulji Raja, PW-10 has noted as many as 15 incised wounds on various parts of the body. There is not a single injury which can be caused by hard and blunt substance. If we recall the evidence of the eye-winesses, mulji Raja was attacked by all the accused simultaneously with the respective weapons in their hands which consisted of iron pipe and sticks also. If indeed all the accused persons armed with an iron pipe or stick had assaulted as asserted by the prosecution witnesses, then in that case, there would have been number of injuries by hard and blunt substances over and above 15 injuries which were by way of incised wounds. No such injuries by hard and blunt substances are found on the person of the deceased. Thus, the medical evidence of PW-10 clearly nails the lie and belies the evidence of the eye-witnesses before the Court. Not only that but it further strengthens our doubt that the accused persons have been falsely implicated because they belonged to the rival group, suppressing the genesis of the case. ( 13 ) FROM the aforesaid discussion, reasonable inference that can be deduced from the interested inimical ocular evidence which is to some extent inconsistent with the medical evidence on the record is that the witnesses are not telling the truth and are guilty of suppressing correct version and thereby the genesis of the case. The credibility of the prosecution evidence is further shaken and loses ground more particularly in view of the fact that injuries to the accused persons have not been properly explained. To say, before the Court that they got injured because of their respective weapons is difficult to gulp down having regard to the facts and circumstances of this case when there is not even a whisper in their earlier statements before the Police. There is the difference, marked and positive between to explain the injuries and to explain away the injuries. The injury to accused No. 2 in particular is indeed quite a serious injury on the head, the most delicate part of the body. There is the difference, marked and positive between to explain the injuries and to explain away the injuries. The injury to accused No. 2 in particular is indeed quite a serious injury on the head, the most delicate part of the body. Under the circumstances, when the prosecution case is ultimately based on the evidence of inimical, partisan witnesses without any independent corroboration forthcoming on the record, the same renders the very genesis of the prosecution case quite doubtful. This doubt of us is further strengthened when we found that all the police vardhies to the Police Station brought on the record reveal maramari that is to say a scuffle between the parties. maramari is a statement from which in absence of any dependable evidence forthcoming on the record, it is difficult nay impossible to spell out which party was the aggressor. In other words, there is nothing said police vardhi to indicate who were the assailants and what was the root-cause which led to the ultimate result of Mulji Raja being killed on the spot and two other injured. In our opinion, the possibility cannot be ruled out of the accused No. 1 and 2 and their other associates being first attacked and framed up on a charge of murder as they were informing the police and as a result of which raids were carried out at the house of Mulji Raja and others. This is supported when we take into consideration the deposition of DW-1 Hasmukh Mansukh, Police constable serving in "a" Division Police Station, who has produced before the Court the record of the Crime Register from the year 1980 to 1986, wherein serveral offences under the Bombay Prohibition Act, 1949, have been registered against Mulji raja, Raja Bhikha, Khimji Raja and others. It also further appears from the evidence of DW-2 Jiva Tida that some Chapter Proceedings were taken up against Dalpat, magan, etc. , which of course came to be compromised. It is probably strongly apprehending rather believing that it was accused No. 1 who was responsible for arranging the prohibition raids at their houses that Mulji Raja and others thought it fit to teach him a life lesson and while doing that, on causing injuries to accused nos. , which of course came to be compromised. It is probably strongly apprehending rather believing that it was accused No. 1 who was responsible for arranging the prohibition raids at their houses that Mulji Raja and others thought it fit to teach him a life lesson and while doing that, on causing injuries to accused nos. 1 and 2, the residents of the vicinity on rushing to rescue them attacked the prosecution side that in process Mulji Raja lost life and two others, viz. , PW-2 and pw-5 came to receive injuries. In such fluid state of affairs and evidence when the prosecution fails to project the honest, clear picture of the case beyond doubt, the benefit arising that of being the absolute privilege of the accused the same shall have to be given to them. ( 14 ) THE very fact that PW-5 has attempted to change the story given in Exh. 44 so-called dying declaration before the Court completely shatters the foundation of the prosecution case. If PW-5 was right as he deposed before the Court, then in that case, PW-11 Executive Magistrate should have been declared hostile. If not that, PW-5 should have been declared hostile. The prosecution having done neither of the sort and still quite strangely expects the Court to be a gullible child to accept whatever PW-5 deposed before the Court. To accept the same and to pass the order of conviction and sentence thereupon and that too under a serious offence under Sec. 302 of the Indian Penal Code ?? What an imaginary paradise the prosecution is living in. Made self-believed world ? ( 15 ) THUS, taking into consideration (i) the defence pleaded by accused Nos. 1 and 2 in their respective statements under Sec. 313 of the Code coupled with, (ii) their injury certificates at Exhs. 40 and 41 brought on the record, (iii) the complaint Exh. 64 filed by them before the Police do create a reasonable doubt that there is some substance in what they were alleging the prosecution witnesses. In this case, as discussed above, all the eye witnesses are found to be utterly not dependable to accept the prosecution case. 40 and 41 brought on the record, (iii) the complaint Exh. 64 filed by them before the Police do create a reasonable doubt that there is some substance in what they were alleging the prosecution witnesses. In this case, as discussed above, all the eye witnesses are found to be utterly not dependable to accept the prosecution case. However, even if in case they were found to be supporting, then even, taking into consideration the positive defence version which stands duly and undoubtedly probabilised, we are indeed left with no alternative but to accept the same and give the desired benefit arising out of it to the appellant-accused. The reason is the burden of discharging the onus of establishing their case upon the accused is not that heavy, high and the stringent one, as one lying on the prosecution of proving its case beyond doubt much less the reasonable doubt. ( 16 ) IN view of the aforesaid discussion, the appellants to say the least atleast deserve the benefit of doubt, and in that view of the matter, it leaves no alternative with this Court but to extend the said benefit of doubt to the accused by quashing and setting aside the impugned order of conviction and sentence. ( 17 ) THE learned A. P. P. Mr. Divetia is directed to forward a copy of this judgment to the Director General of Police, Gujarat State, Ahmedabad inviting his attention to para 7 of this judgment, and in particular emphasized portion underlined for necessary information and action. ( 18 ) IN the result, this appeal is allowed. The impugned judgment and order of conviction and sentence is hereby quashed and set aside. The appellants are ordered to be set at liberty forthwith unless their presence in jail is required in connection with any other proceedings. .